Hodgson v Sydney Water Corporation - [2016] NSWDC 361

District Court

New South Wales

Medium Neutral Citation: Hodgson v Sydney Water Corporation [2016] NSWDC 361
Hearing dates: 21 September 2016-23 September 2016,21 November 2016-22 November 2016, 25 November 2016
Date of orders: 15 December 2016
Decision date: 15 December 2016
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff against the defendant.
(2) Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum.
(3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(4) Liberty to apply in relation to costs.
(5) Exhibits to be retained for 28 days.

Catchwords: Tort – negligence – fall on concrete apron of drain crossing public beach – whether risk obvious – practicability of interim measures – whether risk warning given – Sections 5B, 5D, 5F, 5I, 5M, 42 and 43A of the Civil Liability Act.
Legislation Cited: Civil Liability Act 2002 (NSW)
Sydney Water Act 1994 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Bankstown City Council v Zraika [2016] NSWCA 51
Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Brodie v Singleton Shire Council (2001) 206 CLR 512
Curtis v Harden Shire Council [2014] NSWCA 314; 88 NSWLR 10
Dybka v McKenzie [2001] NSWCA 171
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Mansfield v Great Lakes Council [2016] NSWCA 204
Medlin v State Government Insurance Office (1995) 182 CLR 1
Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114
Penrith City Council v Parkes [2004] NSWCA 201
Roads and Maritime Services v Grant [2015] NSWCA 138
Rockdale City Council v Simmons [2015] NSWCA 102
Sharp v Parramatta City Council [2015] NSWCA 260
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Strong v Woolworths Ltd (2012) 246 CLR 182
Takla v Nasr [2013] NSWCA 435
Wallace v Kam (2013) 250 CLR 375
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Category: Principal judgment
Parties: Phoebe Hodgson (Plaintiff)
Sydney Water Corporation (Defendant)
Representation:
Counsel:
R Foord (Plaintiff)
S Glascott (Defendant)
Solicitors:
Deniston Day (Plaintiff)
Makinson d’Apice (Defendant)

File Number(s): 2015/198391

Judgment

These proceedings are brought by the plaintiff in negligence for damages for personal injuries sustained by the plaintiff in a fall which occurred on 30 November 2013 when the plaintiff was crossing a drain owned by the defendant corporation, then situated on the beach at Rose Bay in Sydney in New South Wales.
The plaintiff claims that the drain, which was constructed in the form of a concrete apron in front of a pipe which discharged water onto the concrete apron and then into the sea, was slippery and dangerous at the time and this caused the plaintiff’s fall and the injuries suffered by her.

The Statement of Claim

The Statement of Claim upon which the plaintiff relies was filed on 7 July 2015. The plaintiff pleads in the Statement of Claim that at all material times the defendant was the owner of a concrete stormwater drain at Rose Bay (paragraph 2) and was responsible for the design, maintenance, repair and safety of the drain. It is said that it owed a duty of care to the plaintiff (paragraph 3).
The Statement of Claim pleads that the plaintiff was lawfully walking in an easterly direction along the beach at Rose Bay when she came to the drain and had to cross it to continue her walk (paragraphs 4 and 6). It is pleaded that at all material times Rose Bay Beach was used by thousands of people on a daily basis for recreational activities such as walking and swimming (paragraph 5). It is pleaded that in the circumstances the defendant owed a duty of care to persons crossing the drain as pedestrians on the beach to take reasonable precautions not to expose such persons to a foreseeable risk of suffering not insignificant harm which included the risk of harm through slipping on the drain (paragraphs 7-8). It is pleaded that the plaintiff was walking on the beach when her right foot slipped on the drain which is described as “mossy and slippery” (paragraph 9). It is said that the plaintiff suffered injury as a result of the slip.
Breach of duty of care is pleaded through failing to adequately inspect, maintain or repair the “mossy and slippery concrete stormwater drain” and failing to design the drain properly in the first instance so that it did not have an exposed concrete surface that could become mossy and slippery. A failure to warn is also alleged as well as a failure to provide a safe walking surface free of hazards in an area frequented by persons who include children, elderly persons and other members of the community (paragraph 11). As the case was run at trial, the plaintiff asserted that the defendant reasonably should have taken a number of interim measures in 2012-2013 to eliminate the danger in crossing the drain before the eventual removal of the concrete drain apron in 2014 by a contractor at the request of the defendant. The removal of the concrete apron was contemplated in 2013 prior to the accident.

Second Further Amended Defence

The defendant sought leave to file in court a Second Further Amended Defence on the first day of the hearing. Leave was not opposed by the plaintiff and was granted.
The defendant pleads a number of defences to the plaintiff’s claim as follows:

It denies that the plaintiff is entitled to the relief claimed or any relief at all;

It admits that it was responsible for the maintenance, repair and safety of the concrete stormwater drain but does not admit it was responsible for the design of the drain or owed the plaintiff a duty of care;

The defendant denies a breach of the duty of care;

The defendant alleges that the alleged accident was an event which the defendant could not have reasonably prevented;

The defendant says that the risk of injury was an obvious risk within Section 5F of the Civil Liability Act 2002 (NSW) (“CLA”) and there was no duty to warn of the obvious risk under Section 5H of the CLA;

The defendant alleges that the injury if it occurred was the result of the materialisation of an inherent risk within Section 5I of the CLA;

The defendant says that the plaintiff was engaged in a recreational activity which was the subject of a risk warning within Section 5M of the CLA and in those circumstances the defendant does not owe a duty to take care to the plaintiff in respect of that risk;

The defendant pleads contributory negligence;

The defendant relies on statutory defences under Sections 42 and 43A of the CLA.

The plaintiff’s oral evidence

In her oral evidence in chief the plaintiff stated that she was born in October 1983 and was at the time of the trial married with a 15 month old baby daughter. She was accordingly 30 years old at the time of the accident. Her background was that she had completed Year 12 at school and then also completed a Bachelor of Communications Degree at the University of Technology, Sydney. During the last semester of her university degree and for several years thereafter the plaintiff worked in various positions in public relations, marketing and journalism (see Exhibit D). On 20 March 2013 she commenced working at David Jones as a Marketing Manager (T 36.47).
As at the end of November 2013 the plaintiff was on stress leave from her employment at David Jones (T 37.5). She gave evidence that she was paid her salary during a two months’ notice period which commenced one or two days before the accident (T 105.15-.29).
The plaintiff was a resident of the Eastern Suburbs of Sydney and as at the end of November 2013 was generally familiar with the Rose Bay area. She gave evidence that she had walked along the beach at Rose Bay with her husband on two or three occasions prior to the fall (T 38.32) in order to give their dog exercise.
The plaintiff gave evidence in relation to the events of 30 November 2013. After parking her car in the area of Norwich Avenue in Rose Bay, she crossed New South Head Road with her dog and proceeded through a park. There she met her friend Ms Jan McKenzie who also had a dog with her. Both dogs were on the lead. The two women proceeded to the Rose Bay Beach area where the dogs were let off the lead and they ran in an easterly direction along Rose Bay Beach. Apparently Rose Bay Beach was an off leash area for dogs at the time.
The plaintiff gave evidence in chief that she proceeded with Ms McKenzie walking along the beach in an easterly direction. This was at about 12 noon. There were other people on the beach at the time (T 40.9).
The plaintiff gave evidence that she and Ms McKenzie arrived at the spot where they had to traverse the concrete apron which was situated on the beach in front of a pipe and which continued to the edge of the beach area near the water. They had to walk about 30-40 metres along the beach eastwards before they arrived at the concrete apron of the drain (T 40.25).
The plaintiff gave evidence that at that time the concrete apron was partially covered with sand and the tide was high (T 40.28). The seawater was touching the end of the concrete apron of the drain (T 42.43).
The plaintiff gave evidence that she stepped on the part of the concrete apron which was covered in sand and then proceeded to traverse the apron. To do this she had to step on a concrete area which was not covered in sand. The plaintiff gave evidence that her right foot slipped from under her and went out in front of her and her left leg followed in the same direction. The plaintiff stated that she fell with her right arm down and landed on the right palm with her hand being slightly behind her. She also struck the ground heavily on her buttocks (T 40.32-41.16).
The plaintiff said that she felt immediate pain in her right wrist extending to her right shoulder. She also felt pain in her right buttocks (T 41.19-29).
The plaintiff indicated that at the time there were oysters and barnacles on the side of the concrete apron and there was quite muddy water at the end of the concrete apron near the sea (T 42.48-43.3).
The plaintiff said that she did not observe any warning sign in relation to the concrete apron either before or after she fell on 30 November 2013 (T 43.26-35). The plaintiff gave evidence that if she had seen a warning sign she would probably have heeded the advice and not crossed the drain. This evidence was inadmissible for causation purposes: Section 5D(3)(b) of the CLA. The plaintiff also said that if she had seen a two-sided warning sign she would not have crossed the drain but would have found somewhere else to walk (T 44.3-14). The plaintiff gave evidence that she understood that her friend Ms McKenzie went back to the beach about a week later and took some photographs of the concrete apron and drain. She gave evidence that the conditions of the concrete drain and apron area on the day of the accident were the same as appears in those photographs taken by Ms McKenzie, which later became Exhibit B (T 44.1).
The plaintiff gave evidence that on 30 November 2013 she attended the Bondi Junction Medical Centre which was open seven days a week and consulted a Dr Aroney who placed her arm in strapping until it could be x-rayed (T 44.33).
The plaintiff gave evidence that she had an x-ray of her right wrist the following Monday. The plaintiff said a fracture of the right wrist was diagnosed and it was placed in plaster. The plaintiff also said she had significant pain at the time with constant ache at the fracture site and pain in her right shoulder and upper arm.
On 7 December 2013 the plaintiff, who was seven weeks pregnant at the time of the accident, miscarried (T 45.14).
The general practitioner (Dr Aroney) referred the plaintiff to a physiotherapist for treatment of her right shoulder. The plaintiff was given massage and stretching exercises to undertake. At this time her buttocks were still bruised and painful.
The plaintiff had in place the plaster cast on her wrist until 9 January 2014. The plaintiff said that at this time she was limited with what she could do. Her right wrist had been fractured and she was right handed. She could not drive, tie her shoelaces, had difficulty showering, could not prepare food and could not walk her dog (T 47.18-25). She was also limited from undertaking sports. Prior to this time she had actively taken exercise including at the gym, with weights, swimming and Pilates.
From January 2014 the plaintiff continued to have physiotherapy in the shoulder area with strapping being applied and rehabilitating her movement. Eventually the plaintiff was able to take up her Pilates again but with an altered programme which took into account her injured wrist and right shoulder.
The plaintiff gave evidence of other treatment which she received during this time. First, she received massage to her right shoulder area and to her neck which was quite tight following the accident. The plaintiff became pregnant again in late 2014. Secondly, the plaintiff had acupuncture in 2014 which helped her with her pain in her right shoulder. Although the plaintiff had received acupuncture prior to the accident date this was only for her hips and not for her right shoulder. The plaintiff had also not been receiving any physiotherapy treatment as at the date of the accident. The plaintiff indicated that the physiotherapy and the acupuncture helped relieve the pain which she had developed in her shoulders and neck following the accident (T 49.17; 52.20). These appear to be reasonable steps to alleviate her symptoms from the accident.
The plaintiff gave evidence that following the accident and the plaster being removed from her wrist, she found lifting activities harder and sitting at the desk for any period of time uncomfortable (T 52.36).
The plaintiff’s daughter, Georgia, was born in June 2015 and is now 18 months old. The plaintiff gave evidence in chief that she had pain while she breastfed Georgia, particularly when she held her in the classic cradling position. This pain involved tightness in her neck and pain in her shoulders. At this time the movement in her right shoulder was more limited. The activities which she had to undertake with a new baby resulted in her feeling more pain in the right shoulder area (T 52.30-53.20).
The plaintiff gave evidence that in the period 2015 through to 2016 she continued to receive physiotherapy treatment and undertook clinical Pilates with a physiotherapist in order to attempt to build up her muscle strength in her back and shoulders. She found that the Pilates gave her significant pain relief and benefits in the neck and shoulder area (T 54.41-55.37).
Prior to the birth of Georgia, the plaintiff had worked fulltime. She left David Jones just prior to the accident and in early 2014 set up her own public relations agency called the Beanstalk Agency. This undertook public relations and marketing activities aimed at small to medium businesses. The activities undertaken included advertising advice, press releases and product/service launches. Work in the agency involved planning events for a client and setting up signage, moving furniture, lecterns and the like (T 56.26-33). The plaintiff gave evidence that she found problems with undertaking overhead activities where she needed to lift up her arms. Her neck was tight and she felt a lot of pain in her neck and shoulder area (T 56.47).
The plaintiff gave evidence that she wished to work as long as she could and to age 60 at least (T 57.8). The plaintiff said she continued to receive physiotherapy, acupuncture and also osteopathy services which provided benefits to her in relieving pain in her neck and shoulders (T 59.3-7).
The plaintiff gave evidence in chief that she had a “traditional” relationship with her husband Luke prior to the accident where she undertook most of the shopping, cleaning and domestic activities including walking the dog (T 59.23).
After the accident the domestic circumstances changed. The plaintiff began relying on her husband to do a lot more around the house including lifting and carrying. Her husband had his own business and was very busy in it being away frequently. The plaintiff because of her restrictions required help from her husband when he was at home particularly with her child including in bathing the child and putting her to bed. This was because the plaintiff found those activities including lifting her child to cause pain in her shoulder towards the end of the day (T 60.27-41).
In relation to domestic tasks inside the house, the plaintiff’s husband helped with sweeping and cleaning. The plaintiff gave evidence that she also retained a cleaner to assist her and the cleaner came once per week for three to four hours (T 61.20). The cleaner was paid $25 per hour for the cleaner’s work. The plaintiff said the cleaner assisted her with physical activity that could aggravate her shoulder and neck (T 61.10). The plaintiff indicated that but for the accident she would probably not have required the cleaner as she was only working part-time, about 10 hours per week. Before the accident the plaintiff had a cleaner but at that stage she was working fulltime.
The plaintiff gave evidence that she received anti-pain medication for a few weeks after the accident but had avoided taking it thereafter unless the pain was severe because she had prior difficulties with medication (where they had damaged her liver) and she did not like taking it (T 62.45)
The plaintiff gave evidence that on 12 December 2013 she forwarded an email to Woollahra Council to the following effect:

“I would like to notify Woollahra Council that on Saturday 30 November 2013 at 12.15pm I slipped and fell at Rose Bay Beach, resulting in a fractured wrist, severe bruising and shoulder injuries.
The incident occurred while attempting to cross the storm water drain on Rose Bay Beach between Tingira Reserve and Percival Park. The storm water drain is extremely mossy and slippery but there is no clear signage indicating this or warning of the dangers. I have since seen a single sign but it is not clear to people walking from either direction along the beach, as it points directly to the water.
Please be aware that this is a very dangerous public hazard and I am disappointed with the council’s lack of clear and obvious warnings. I have wanted to report this in person at the council but am now very limited in my accessibility as I cannot drive.”

The plaintiff gave evidence that if she was awarded monetary compensation to assist her with domestic tasks she would retain someone to assist her (T 63.46).
At present the plaintiff said that she had pain in her shoulder whilst giving evidence and pains in her neck and shoulder sitting for periods whilst working and carrying her daughter. She said she could mop and vacuum but had difficulties with this particularly if her shoulder had flared up (T 64.13). She said she had difficulties also with any activities above the shoulder area. The plaintiff conceded that she had no troubles with walking the dog or in cooking unless she had to reach high cupboards which involved her raising her arms which caused her neck to be tight and sore. The plaintiff gave evidence that her grip strength was satisfactory but she was not as strong in undertaking tasks requiring strength such as opening a jar. She said she had no difficulties with using a keyboard. Overall, she found the pain and restrictions to be frustrating as she had been an independent person. In relation to her sports she had now got back to the position where she could undertake most activities but in relation to her Pilates she had needed to modify it to take account of her restrictions (T 64.65).
The plaintiff was heavily cross-examined in relation to the circumstances of the fall and her knowledge of the concrete apron at and prior to the fall; the extent of her injuries; and the degree of her recovery and her current disabilities.

The plaintiff gave evidence that she had lived in the Eastern Suburbs of Sydney for her whole life and was familiar with the Rose Bay area. She agreed that she had walked up and down the Rose Bay Beach once or twice in her childhood and two or three times with her husband to walk their dog (T 79.29; 80.26). She doubted that she had been to the Rose Bay Beach more frequently than that because it was not their local area and it was not a swimming beach although it was the only lead free beach in the area for dogs.
The plaintiff agreed that she had crossed the drain apron before (T 80.38). In doing so she had crossed in the same manner as at the time of the accident and had not crossed by going to the end of the concrete apron and walking around it (T 81.12). The plaintiff conceded that she may have crossed the drain when there were different tidal conditions to those at the time of the accident. The plaintiff accepted that she was aware that rocks along beaches could be affected by the tide and could be slippery (T 81.44). She also accepted that she knew prior to the accident that the apron of the drain in question could be slippery and was exposed to tidal movement. Whilst conceding that she knew that the surface of the concrete apron was exposed to water and subject to moss and algae and therefore could be slippery, the plaintiff indicated that she had previously crossed it prior to the accident without event (T 81.50). The plaintiff indicated that she was careful whilst attempting to traverse the drain at the time of the accident because she knew that if she was not careful that she could slip (T 82.31).
On the day in question when the accident occurred the plaintiff gave evidence in cross-examination that she stepped over the low wall at the edge of the concrete apron, walked on sand which was close to the wall of the apron, proposed following the sand within the apron to the extent possible and did not wish to walk on the concrete itself. This was because she had a concern as the apron appeared wet and slippery (T 83.41-84.39). The plaintiff said she was wearing sneakers at the time of the accident. The plaintiff conceded that she knew there was a risk of slipping in traversing the apron but did not think that a necessary result as she had previously walked across the apron without concern. At the time, her friend Ms McKenzie was walking in front of the plaintiff and the plaintiff was close behind her. The plaintiff conceded that she may possibly have stopped before stepping off the sand in order to gauge how she should step upon the concrete and to see whether it was slippery but she could not recall (T 85.10-45).
The plaintiff was pressed in relation to her knowledge of the risk of slipping at the time of the accident. She gave the following evidence:

“Q. It's clear that you could've seen the sign if you had looked in the direction of the outlet?
A. If I looked to the right yes.
Q. That sign wouldn't have told you anything you didn't know, already which was that the drain was slippery. Or could be slippery where it was exposed?
A. It would've told me there was a danger.
Q. Yes but you knew there was a danger of slipping anyway didn't you?
A. I - I - I was not necessarily because I'd crossed it.
Q. You're not seriously telling his Honour that you didn't understand that there was a danger of slipping on the day of your accident, where the--
A. Well--
Q. --where the drain was not covered by sand?
A. I - I didn't expect to slip no.
Q. No but that's a different answer, you understood that there was a risk that you could slip didn't you?
A. Yes.
Q. That's a danger?
A. Yes.
Q. That's what the sign was warning of?
A. Correct--“ (T 88.28-89.2).

The plaintiff was asked questions in relation to the sign which was placed above the drain outlet facing the sea which stated “danger”, “slippery surface” with the figure of a person slipping. The plaintiff gave evidence that she understood that the sign was there at the time of the accident as she had seen it in the photos taken by her friend Ms McKenzie several days after the accident. Ms Hodgson said that she had not noticed the sign previously in her other visits to the Rose Bay Beach. Ms Hodgson conceded that she would have had no trouble seeing the sign if she had looked to her right before attempting to traverse the concrete apron (T 88.11-88.25). The plaintiff conceded further that it was open to her not to have crossed the concrete apron if she chose to because she could have turned back even though she had planned to proceed up the beach (T 92.21-38).
The plaintiff was asked why she did not walk to the end of the concrete apron near the water and walk around it. The plaintiff said that she was wearing sneakers at the time and did not wish to get her shoes wet. When asked whether she could have taken her shoes off to walk around the apron she said the area was muddy and soft. She believed the water at the time was fairly close to the base of the apron. The plaintiff also gave evidence that it did not appeal to her to walk through the muddy area at the end of the apron in her bare feet as there was the potential for her to cut her feet (T 95.13). The plaintiff conceded that it was possible for her to have met her friend Ms McKenzie at the other end of the beach and to have walked down the beach to avoid the risk of slipping on the apron, although that was contrary to their plan and Ms McKenzie lived locally and had walked to the park to meet Ms Hodgson near the western end of the beach.
The plaintiff gave the following further evidence in cross-examination:

“Q. This morning I asked you some questions about your understanding of the risk of slipping on the stormwater drain.
A. Yes.
Q. You understood that the risk of slipping involved potentially falling and injuring yourself, didn't you?
A. Yes.
Q. You were walking with Ms McKenzie?
A. Yes, Jan McKenzie.
Q. I think you said at the time you slipped she was in front of you, slightly in front of you?
A. Yeah in front to the left.
Q. In front to the left?
A. Yes.
Q. As you were walking towards the stormwater drain before you slipped of course, was Ms McKenzie also on your left at that time?
A. Yes, she was.
Q. You were talking to her?
A. Yes, I was.
Q. And you were directing your attention to your left.
A. I was, yes. If I can expand, to my left and in front where my dog was.” (T 121.43-122.19)
…
“Q. But nevertheless the base of the stormwater drain had what appeared to be algae or moss on the concrete surface where you stepped, correct?
A. That's correct.” (T 122.34-36).

The plaintiff was then cross-examined in relation to her injuries and disabilities. The plaintiff gave evidence that she had already experienced problems prior to the birth of her child Georgia but they worsened after that time when she had increased pain in her right shoulder and neck area (T 106.26-106.50). In due course, whilst the plaintiff still had problems with her shoulder and neck areas, the condition eventually stabilised and the difficulties plateaued (T 107.39). The plaintiff was able to undertake all domestic tasks but at the cost of transient aggravation of her condition (T 107.44).
The plaintiff agreed in cross-examination that she had never experienced pain in her left shoulder until the birth of her daughter (T 113.14). With the assistance of clinical Pilates under the supervision of a physiotherapist and light exercise, the plaintiff had been able to stretch her shoulder and neck area and reduce the tightness in the area.
The plaintiff confirmed her evidence in chief that her husband assisted with the bathing and preparation for bedtime of the baby daughter. The plaintiff conceded that she could undertake these tasks but on some days her symptoms were aggravated by it and she had pain and increased tightening in her neck and shoulder areas. The plaintiff said that her problems now were exacerbated by lifting heavy items particularly lifting her arm above the shoulder area and in undertaking heavier tasks. The plaintiff confirmed that she had pain on occasions while working at a chair for any period, although this could be relieved by standing up, moving around and the use of a posture pole.
In relation to her work the plaintiff said that she wished to continue working part-time but planned to have two more children and would hope that the work accommodated the planned expanded family. The plaintiff was cross-examined about her wide experience and qualifications and her ability to find different jobs in the public relations, advertising and journalism areas.
In re-examination the plaintiff gave evidence that if there was an area of sand on the base of the concrete apron when she attempted to cross it on 30 November 2013 she would have stepped on the sand rather than on the concrete top. In cross-examination her recollection was that the water from the sea was touching the apron of the drain at the time of the accident.
Overall, the plaintiff impressed me as an honest witness who gave her evidence truthfully and frankly and made appropriate concessions. I have no hesitation in accepting her as a witness of truth and in accepting her evidence.

Evidence of Luke Hodgson

Luke Hodgson is the husband of the plaintiff and has been in a relationship with the plaintiff since December 2011. He gave evidence that since 2011 and prior to the accident the plaintiff’s health was perfect and she engaged in regular exercise including gym work and swimming. The plaintiff did most of the household tasks before the accident including most of the cooking and indoor cleaning.
Mr Hodgson gave evidence that after the fall the plaintiff required considerable help after a cast was placed on her wrist. She could not do much for about six weeks to two months and required assistance with dressing, cooking, shopping and walking the dog.
Mr Hodgson said he noticed changes in the plaintiff after the accident. Whilst the plaintiff was not incapacitated she required assistance with heavier cleaning tasks and in any activities which involved lifting, use of her shoulders and upper back and strength in screwing items such as the child gate and in undoing jars (T 144.23; T147.13).
Mr Hodgson said that the plaintiff required assistance when her shoulders and neck were aggravated and he gave the plaintiff regular massages to effect this.
Mr Hodgson confirmed the plaintiff’s evidence that he assisted heavily with looking after their child at the end of the day including bathing, lifting her into the high chair and putting her to bed.
Mr Hodgson gave evidence that at present the plaintiff complained of pain and tightness in the back of her shoulders and at the top of her right shoulder (T 146.37-147.4).
Overall I consider Mr Hodgson to be a truthful and frank witness and I accept his evidence.

Evidence of Erik Ahlberg

Mr Ahlberg lives in a block of apartments which overlooks Rose Bay Beach near the pipe outlet of the drain the subject of the proceedings. He moved into his unit in 1998.
Mr Ahlberg was shown a document which was part of Exhibit E and which was an undated letter to a Ms Belinda Duncan, Community Relations Adviser of the defendant, said to be “for the information session” on Saturday 20 October 2012.
Mr Ahlberg gave evidence that there was a general call from the defendant to residents in the area to attend an information session concerning what should be done in relation to the storm water outlet near the drain apron where the plaintiff fell (T 127.46). Mr Ahlberg said he was concerned principally about environmental matters being originally from Sweden where environmental matters were taken seriously. Mr Ahlberg said that he was “pretty confident” that he sent the letter to Ms Duncan, he believed by email (T 128.3, 128.22; 128.31; 136.23).
Mr Ahlberg said that he also attended part of the information session on 20 October 2012 and spoke to officers from Sydney Water at the time (T 129.44).
The letter from Mr Ahlberg to Ms Duncan included the following:

“The stretch immediately in front of the property is used as a passage for people walking on the beach, to avoid the muddy waters caused by the storm water outlet. However, the storm water wall above the outlet has partly collapsed and is about to fall out as a big block. The storm water outlet is wide and very slippery, people often slip and fall when trying to pass. Some try to avoid the risk of slipping by climbing up along the wall that is about to fall out, a very dangerous, life threatening effort.
To sum it up the storm water outlet is an eyesore, a safety risk and causing unnecessary negative environmental impact.” (emphasis added).

Mr Ahlberg was cross-examined in relation to whether he was sure that he sent the letter and a further document headed “Polluting Rose Bay; Main Stormwater Pipeline” which is part of Exhibit E to Sydney Water. Mr Ahlberg believed that he sent both documents to Sydney Water but having regard to the date of the second document it was clearly sent in 2014 after the community meeting in October 2012 (and the accident) (T 138.18).
Mr Ahlberg gave evidence in cross-examination that prior to the drain being reconstructed in 2014 he observed people walk around the concrete apron by walking closer to the sea (T 141.23-44).
Mr Ahlberg impressed as a careful and thorough witness and I accept his evidence. Based on his evidence and taking into account the documents in Exhibit E, I find that the two page letter from Mr Ahlberg, part of which I have quoted above, was delivered to Ms Duncan, the Community Relations Adviser of Sydney Water prior to 20 October 2012.

Evidence of Ms Janette McKenzie

Ms McKenzie is a friend of the plaintiff, Ms Hodgson, and resides at Bellevue Hill in the Eastern Suburbs in Sydney. Ms McKenzie has been a friend of the plaintiff since 2010. Ms McKenzie said that she came to Sydney in 2000.
Ms McKenzie gave evidence that from the time she moved into her flat in Bellevue Hill in 2010 where she currently resides she developed a fairly regular pattern of walking and sometimes her walk took in Rose Bay Beach, depending on the tidal conditions. The factor which she took into account as to whether she walked along Rose Bay Beach was how she was going to move across the drain where the plaintiff fell (T 155.18). Ms McKenzie described the drain as a “hazard” and she would always leave her trainers on to walk over the drain (T 155.25). Ms McKenzie indicated that she did not want to walk barefoot on the drain as it was hazardous, slippery, there were rocks, it was slimy and there was glass in the vicinity (T 155.34).
Ms McKenzie said that from 2010 she observed that the appearance of the concrete drain would change depending tidally what was happening. She also noticed that a plank had been placed across the drain at different times but she never walked on the plank (T 156.7). Ms McKenzie pointed to the presence of a plank in the photograph of the drain which appears at page 89 of Exhibit F. However, the plank was only seen by Ms McKenzie on a couple of occasions prior to the accident (T 156.51-157.3).
Ms McKenzie was asked as to what she observed on the occasions that she had to traverse the drain. She said that she observed that there was some water on the concrete apron but not a lot, there was not a lot of sand and that looking at the drain she felt that it was going to be slippery. Prior to the accident with Ms Hodgson, Ms McKenzie said that she had experienced difficulties in crossing the drain as she was aware that it was slippery and that she had slipped on occasions without falling down. She gave evidence that she would concentrate in crossing the drain and stabilise herself so that she was “very aware of my core strength” (T 157.24).
Ms McKenzie said that prior to November 2013 she had walked in the area frequently and had gone along the beach probably on 30 to 40 occasions per year with her dog.
On the day in question, Ms McKenzie said that she met up with the plaintiff and was walking along the beach talking to her. The plaintiff was on her right. They arrived at the drain and were then side by side or the plaintiff was a step behind (T 158.22-36).
Ms McKenzie recalled that on the day in question the drain “looked slippery”.
Ms McKenzie said that she walked very slowly and very cautiously across the drain. She said she swiftly became aware that Ms Hodgson had fallen and complained that her wrist was injured (T 159.3-14).
The following Wednesday or Thursday Ms McKenzie went back to the beach and took some photographs which were admitted as Exhibit B. The photographs were taken by her at about 9.30-10am. She thought the tide was very similar on the day of the accident as appeared in the photographs.
Ms McKenzie gave evidence in relation to a yellow sign that appears in some of the photographs which are part of Exhibit B. She said she first became aware of the sign on the day she took the photographs. She said she was surprised to see the sign as she had not seen it on the 30-40 occasions per year she had walked on the beach between 2010 and 2013 (T 160.40-161.4). When she took the photograph Ms McKenzie thought the sign “was a statement about what was going on on the lattice work” above the drain outlet (T 161.14).
Ms McKenzie was then subject to cross-examination. She was cross-examined in relation to the sign depicted on the photograph and indicated that she had not seen the sign because when she was walking easterly along the beach she had not been aware of it.
I observed Ms McKenzie carefully when she was giving this evidence and accept that she had not seen the sign prior to attending the beach on the Wednesday or Thursday following the accident even though she had walked along the beach 30-40 times per year in the four years prior to the accident.
Ms McKenzie gave evidence that sometimes the tide when she was walking along Rose Bay Beach came up to the end of the concrete apron. She conceded that some people walked out towards the water and around the base of the apron in order to proceed up the beach. She gave evidence that the water was not always shallow to permit that (T 169.27-38). Ms McKenzie said that on the day of the accident she was not going to go around the edge of the apron because there was water there and she was concerned that there were other items such as stones, glass, gravel and oyster shells (T 169.48). Ms McKenzie gave the following evidence:

“We walked across the path we were travelling because we had trainers on and it was wet around the edge.” (T 170.8).

Ms McKenzie identified this as meaning wet at the seaward end of the concrete opening. Ms McKenzie specifically gave evidence that the concrete apron did not have an obvious drop at its base on the seaward end on the day of the accident (T 170.40). The evidence of Ms McKenzie appears to have been that there was no obvious gap between the end of the apron and the sea at the time of the accident which would permit someone to walk on the shore between the end of the apron and the sea.
Ms McKenzie gave the following further evidence:

“Q. Had you ever made any observation about what was in the water at that point just seaward of the end of the stormwater drain?
HIS HONOUR: When?
FOORD
Q. On the occasions prior to November 2013?
A. I’ve never seen it look as exposed as that before, but quite often it’s, it’s pebbly and there’s, there’s muck in the water.
Q. Anything else?
A. Sometimes there’s glass in the water. The only time where I’ve ever gone at that end, I would be, I would actually be in the water with shoes off and I would be out in the water up to my knee. I would never go to that end because it’s unsafe, it’s dangerous.” (T 171.5-20).

Ms McKenzie was a careful and impressive witness. I have no hesitation in accepting her evidence as honest and truthful.

Evidence of Ms Caryl Rorke

Ms Rorke gave her evidence by way of telephone from Tasmania where she is now retired. Between 2004 and 2014 she lived in the flat which was immediately above and slightly to the right (as facing the sea) of the stormwater drain where the plaintiff fell. From her balcony of the flat Ms Rorke was able to see people approaching the drain from both sides. She could also see people on the beach through the windows in her flat. She gave evidence that the numbers of people on the beach increased as the beach was cleaned up from about 2009.

Ms Rorke said she was able to observe people crossing the drain. The drain was often half filled with sand but there was always a rivulet of water exiting the pipe towards the sea. The plaintiff said that the drain “would get very dirty and very slimy”: T 183.41.
Ms Rorke said that she observed people slipping on the drain from her flat. As a result of her concerns she discussed the matter with other residents in her block of flats.
Ms Rorke gave evidence that on about 2 February 2012 she sent a letter to Woollahra Council which was at page 1 of Exhibit F. The letter included the following:

“The drain is constantly running and is a great source for slime and weed growth. It is particularly slippery this year.
Pedestrians and visitors are constantly falling over on this slippery concrete crossing. I am resident of the [blanked out] apartment and have witnessed dozens of dangerous falls. On New Year’s Eve there was a constant stream of visitors to Rose Bay beach at least 50% of whom, had bad falls, sometimes carrying bags and boxes of drinks. On Tuesday evening this week, an elderly man had a nasty fall and was very shaken. Fathers carrying young children across on their shoulders could cause a fatal fall for the child if the father slipped.
PLEASE ERECT A SIGN on each side of the stormwater drain, visually warning of the slippery conditions. And when your guys come down to clean the beach as they often do, ask them to gurney the slime off the base.
We request the Council takes this safety issue seriously and erect warning signs as soon as possible.” (emphasis added).

Ms Rorke received a reply from Woollahra Council dated 13 February 2013 indicating that they had forwarded her letter to Sydney Water. Ms Rorke then gave evidence that she sent a further letter to Woollahra Council which she sent about 5 March 2012. This letter was to the following effect:

“Thank you so much for your prompt response to our letter regarding the dangerous condition of the Sydney Water drain outlet, and passing our request and concerns onto them.
We haven’t heard from them as yet, and nothing appears to have been actioned, but we will contact them direct, and continue with this important request.”

Ms Rorke gave evidence that on 25 April 2012 she sent a further letter to Woollahra Council which included the following:

“You may recall that I/we (residents of xxx New South Head Road, Rose Bay) wrote to you in February, seeking assistance in preventing injuries and damage caused by pedestrians crossing the dangerously slippery drain belonging to Sydney Water on the beach adjacent to this building.
You kindly and promptly did all you could and forwarded my letter to Sydney Water. They telephoned and reported that they had had discussions and decided that simple signs would attract graffiti but were looking at laying some type of non-slip grid on the surface of the concrete to reduce the growth of slime.
Since then not a word – and certainly no action. February to May?
I have no ‘contact’ at Sydney Water to approach and would ask you once again to forward this letter to them, rather than have a letter bounce around ‘too hard baskets’ of an impersonal office in Parramatta!
Since I wrote we have had a couple of public holidays (Easter for one) in glorious weather drawing hundreds of visitors to the beach. There were at least 12 bad falls. One boy of about 16 knocked himself unconscious on the concrete floor. Dozens of children fell and one woman (witnessed by a neighbour) broke her arm.
How many more accidents is Sydney Water going to be party to? I would like to issue an invitation to any member of Sydney Water to spend a weekend day on my balcony and witness this distress for themselves.” (Exhibit B, page 14, emphasis added).

Ms Rorke confirmed that she had a telephone conversation with a representative from Sydney Water who indicated that Sydney Water was proposing a non-slip grid being installed (T 184.35-185.1). Ms Rorke gave evidence that she noticed more accidents when there were more people on the beach at the weekend and particularly public holidays such as New Years Day and Christmas Eve in particular (T 185.8).
Ms Rorke stated that she herself walked up the beach on occasion with her dog. When she crossed the drain she would cross it very close to the actual drain opening because the apron was at its narrowest at that position (T 188.19).
Ms Rorke also gave evidence that on occasions people slipped whilst carrying boxes of beer which would smash and would be cleaned up by residents the following day (T 191.42-192.13).
In relation to the letter of 25 April 2012 which was forwarded by Ms Rorke to Woollahra Council and which referred to “12 bad falls” (Exhibit F, page 14), Ms Rorke said that by that she meant a fall that warranted help from someone else. She said that she thought the most serious injury she saw was “the lady with the broken wrist, although there are a couple of bad head cuts”: T192.39. Ms Rorke gave evidence that although there was often sand in the stormwater drain that was not always the case and where there was not sand the surface of the concrete stormwater drain was “slimy”: T 192.50. This was observed by Ms Rorke in the period between about 2007/8 and 2014: T 193.16.
There is no satisfactory evidence that Sydney Water ever saw Ms Rorke’s 25 April 2012 letter.
Ms Rorke gave her evidence clearly and directly and I accept her as a witness of truth. She was not cross-examined.

The plaintiff’s liability bundle

The plaintiff tendered a bundle of documents relating to liability issues which became Exhibit F in the proceedings.
Those documents included:

The letter from Ms Rorke to Woollahra Council sent on or about 2 February 2012, an extract of which is quoted above (Exhibit F, page 1);

A letter from Woollahra Council to the defendant dated 9 February 2012 forwarding Ms Rorke’s 2 February 2012 letter. The letter from Woollahra Council included the following:

“As the drainage outlet is owned by Sydney Water, we request that Sydney Water respond to the request from residents to install signage to notify pedestrians of the slippery surface [of the concrete drain]” (Exhibit F, page 3);

Mr Allen who gave evidence for the defendant claimed he had never seen this letter in 2012-13.

The letter from Ms Rorke to Woollahra Council sent on or about 5 March 2012 which is quoted above (Exhibit F, page 5);

Internal emails within Sydney Water relating to the construction of potential warning signs sent in March 2012. These include an email to the following effect:

“Recently a customer complained about the concrete outlet of the Norwich Rd Stormwater channel, which runs into Rose Bay near Vickery Ave. The customer said that the site can get very slippery, and has seen may some [sic] people fall over in this area.
Jim and I attended a site inspection yesterday with someone from Woollahra council. It was decided that the best thing to do would be installing a slippery surface sign, to warn the public of the potential hazard.
This will require a 2.2 metre high pole, with two slippery warning signs on both sides, as to allow it to be seen from both access points along the beach. I have attached a plot of the site, as well as some photos and a mocked up version of how I think the sign should look.
David: Can you please inform me of the appropriate sign we should use at this site.
Tim: can you please arrange for the pole and signs to be installed and let me know an approximate completion date so I can talk to the customer” (Exhibit F, page 6) (emphasis added);

Internal emails also in March 2012 within Sydney Water referring to the possible use of a non-slip surface product on the drain. This was apparently considered in the context that a sign would require ongoing maintenance and inspection and by putting up the sign there is an “admission of liability” by Sydney Water. Further emails describe signs as looking like “the only real option”. However, a later email within Sydney Water dated 15 March 2012 states as follows:

“I think the non-slip surface option sounds like a good idea to trial based on your advice can you and Tim please arrange for this to be installed as soon as possible.
Stormwater team will inspect the site once a month, to assess how often it will need to be cleaned. We can then put a job in with Veolia for cleaning (probably every three months).
As you stated this will hopefully work out to be more cost effective than the ongoing maintenance of a graffiti and salt damaged sign and post” (Exhibit F, pages 7-8) (emphasis added);

An email relating to a fall and injury by a German tourist on 30 March 2012 forwarded to Woollahra Council which was apparently then on-sent to Sydney Water (Exhibit F, pages 9-13 and 17). An internal investigation was undertaken by Sydney Water and liability was denied (Exhibit F, pages 18 and 30-31). A letter dated 22 August 2012 to the claimant asserts that warning signs were erected on 24 May 2012. The letter said the site was “frequently covered in algae which of course can be very slippery. This is beyond our control.”’;

The 25 April 2012 letter sent by Ms Rorke to Woollahra Council which is quoted above (Exhibit F, page 14). As indicated above, There is no evidence this was copied to Sydney Water;

On 13 July 2012 Sydney Water sent out a consultant’s brief to their “Engineering Services Panel” seeking quotations to undertake a review of the stormwater outlet (Exhibit F, page 19). The brief requested respondents to deal with “public safety” and public access issues (page 20). A response was received from G H D Engineers promptly (Exhibit F, page 21);

In the bundle is a 3 October 2012 circular letter to “customers” seeking feedback in relation to the stormwater outlet at Rose Bay Beach. The aim was to investigate ways to “improve accessibility for beach users around the Rose Bay Beach stormwater outlet” (Exhibit F, page 33). This was for the purpose of a community information session to be held on 20 October 2012 (Exhibit F, page 35). A Sydney Water overview dated 19 October 2012 stated that Sydney Water has looked at ways “to reasonably improve safety and accessibility around the pipe and apron” (Exhibit F, page 36);

There was in the liability material a summary of the community meeting feedback on 20 October 2012 which included various solutions including a bridge over the discharge pipe (Exhibit F, page 42). The general comments referred to from persons at the community feedback meeting included whether something could be put on the surface “to stop it becoming slippery” and whether the existing surface could be “roughed up” and cleaned regularly. A low bridge was suggested. The comments included: “Anything is better than nothing” (Exhibit F, page 43);

There is a Woollahra Council customer request management enquiry dated 13 March 2013 referring to a customer slipping and knocking the customer out and ending up in hospital. There is a reference to the concrete slipway needing “resurface” (Exhibit F, page 49);

The documents include an internal approval request in Sydney Water to obtain $110,000 in funding to undertake what are described as “public safety improvements at Norwich Road outlet”. The document is dated 29 August 2013 (pages 52-53A);

The plaintiff’s email of complaint to Woollahra Council quoted above is included (Exhibit F, page 56);

There is a design report from G H D Engineering dated December 2013 in relation to the alterations to the proposed stormwater outlet (Exhibit F, page 58). It appears from the documents that the work taken to modify the concrete outlet so that a beachgoer could walk along the beach without having to cross the concrete apron structure was completed in about mid-2014 (Exhibit F, page 82). This is the first stage of a potential three stage process, the third stage of which involves a raised walkway platform: Exhibit 3.

Medical reports

A number of medical reports and related documents were admitted into evidence in relation to the plaintiff’s injuries and disabilities.
The medical reports and related documents included the following:

Medical notes of Dr Theo Aroney relating to a consultation on the day of the plaintiff’s fall. The plaintiff saw Dr Aroney on 30 November 2013 and the notes include: “Fall 2 hours ago. Localised pain and swelling over scaphoid”. The notes for 2 December 2013 refer to “left scaphoid clinical fracture … requiring scaphoid plaster 6 weeks”;

A medical certificate from Dr Mary Kearney in relation to the plaintiff for the period 27 November 2013 to 6 December 2013 stating that the plaintiff would be unfit to continue her usual occupation for that period;

There is a referral for physiotherapist treatment dated 12 December 2013 referring to ongoing pain in the right shoulder after the fall;

There is an ultrasound report relating to the plaintiff’s right shoulder dated 24 November 2015 by Dr Williams referring to “abduction 110º with difficulty moving higher”;

Report of Dr Daniel Turner, osteopath, dated 15 September 2015. Dr Turner states that the plaintiff consulted him for low back pain and shoulder pain twice during pregnancy. He states that since giving birth and having to breast feed and carry an infant there has been an exacerbation of the plaintiff’s shoulder pain and stiffness requiring more frequent consultations with Dr Turner for the plaintiff’s neck and shoulder issues. Dr Turner indicates that most of the plaintiff’s symptoms are right sided upper back, neck and shoulder;

There is a report dated 20 September 2016 from Ms Elizabeth Evans, physiotherapist. Ms Evans indicates that the plaintiff started attending physiotherapy during her pregnancy in early 2015 to maintain strength and postural control for her neck and back during targeted pregnancy Pilates classes. Ms Evans stated that in the plaintiff’s post natal period, she returned to physiotherapy complaining of back and right shoulder pain. Treatment was provided to strengthen and release her back and right shoulder areas. It was indicated that the plaintiff continued to have tightness and pain in the right shoulder and neck and so was recommended to get massage and acupuncture to assist.

Report of Dr Michael Gliksman, Occupational Physician, dated 27 August 2015. The report described the fall. It then continued:

“She suffered a forceful impact to the buttocks and to the extended right arm, which was also transmitted to the right shoulder and cervical spine.
Ms Hodgson described the sudden onset of pain affecting the right wrist, associated with rapid swelling. She also experienced pain in the buttocks, as well as cervical and predominantly right shoulder pain.”

Dr Gliksman indicated that the plaintiff had told him that she could:

“Perform all domestic tasks required but at a cost of transient symptomatic aggravation. However she has no choice but to perform them, particularly as it relates to her baby daughter”.

In relation to her shoulder movement Dr Gliksman reported as follows:

“The left shoulder range of motion was full, in all planes. Right shoulder abduction, flexion, extension and adduction were full range. Right shoulder internal rotation was limited to 60 degrees. External rotation was limited to 70 degrees.”

A dynamometer revealed a lesser grip strength in the plaintiff’s dominant right hand compared to her left hand and Dr Gliksman described this as an abnormal finding and indicated a loss of grip strength in the dominant hand. Dr Gliksman described the plaintiff’s disabilities as including the following:

“Ms Hodgson suffers disabilities affecting the right dominant upper limb. This is in the form of reduced right hand grip strength and right shoulder range of motion.
The conditions affect adversely Ms Hodgson’s capacity for prolonged or repetitive typing, and for setting up and dismantling displays. Such tasks remain possible but should be paced according to symptoms.
Fitness for work other than her pre-accident occupation is similarly limited. Any task requiring repetitive keyboarding, strong or repetitive gripping with the dominant upper limb, or lifting or pushing or pulling of more than 15kg (or more than 10kg repetitively) should be avoided.”

Report of Dr Gliksman dated 2 February 2016. In this report Dr Gliksman stated as follows:

“When coupled with the examination findings that were detailed in my report of 27 August 2015, the indication is of a self-limiting soft tissue injury to the right upper limb, apart from the fracture sustained at the distal right radius. As the latter did not invade the joint space, it too is likely to prove self-limiting.
Thus on the balance of medical probability and considering the conditions affecting the right upper limb alone, it is more likely than not that the need for domestic assistance will decline and resolve within the next several months, if it has not done so already.”

Report of Dr Gliksman dated 12 July 2016. In the report Dr Gliksman stated:

“Given persistence of findings relating to the right wrist and right shoulder, it is more probable than not that Dr Stephenson’s conclusion: “that there is likely to be some persistence of restriction of the final range of motion right shoulder and right wrist (sic)” is reasonable.”

Dr Gliksman disagreed with Dr Stephenson’s conclusion that the plaintiff’s future capacity for work was unaffected or that there was likely to be no ongoing need for treatment in the future. Dr Gliksman said that appeared to be inconsistent with the persistence of symptoms and signs;

Report of Dr Brian Stephenson dated 3 May 2016. Dr Stephenson noted on his examination that there was a loss of range of motion in the plaintiff’s cervical spine. In relation to the shoulders he stated as follows:

“At the right shoulder there was no impingement evident but there was some loss of range of motion in abduction and flexion with loss of the last 40º of possible abduction and flexion range.
There is a full range of motion in the opposite left shoulder.”

Dr Stephenson diagnosed “soft tissue injury to the right shoulder girdle region following a direct impact following a fall on the outstretched right upper limb where an undisplaced oblique fracture of the dorso-radial aspect of the distal radius was sustained …”. Dr Stephenson said that although he could not rule out some musculo-ligamentous cervical strain occurring at the time of the fall the symptoms of the cervical strain should resolve satisfactorily. His prognosis was as follows:

“The prognosis based on the current clinical findings is that there is likely to be some persistence of the restriction of the final range of motion right shoulder and right wrist. Basic conservative advice is appropriate. There were no indications for any more active treatment at this time. I saw no indications for continuance of physiotherapy at this time following the injury of 30/11/2013. I accept that it would have been appropriate to have regular physiotherapy for the right upper extremity following the injury but in my opinion there is no indication for a continuance of physiotherapy although a home based physiotherapy exercise program could be continued”.

Dr Stephenson saw no impact on the plaintiff’s ability to perform her job.

Oral evidence of Dr Stephenson

Dr Stephenson was called to give oral evidence. He agreed that he had examined the plaintiff on 28 April 2016. He also confirmed in chief that the mechanism of the injury described to him by the plaintiff of a slip and fall onto the right wrist was the classic type of injury where one would not only find the injury to the right wrist but also because of load factors injury to the upper extremity to the shoulder girdle (T 208.36).
In cross-examination, Dr Stephenson’s attention was directed to Dr Gliksman’s report of 27 August 2015 and Dr Gliksman’s own conclusions in his report of 3 May 2016. He was asked whether the plaintiff’s deterioration in the condition of her neck and right shoulder a few months after the birth of her baby in June 2015 were connected to the accident. Dr Stephenson responded:

“It's difficult to be sure because first of all Dr Gliksman hasn't actually given the range of motion in the shoulders. He said they were full in abduction, flexion, extension, adduction but he hasn't given the range of motion, so we don't know they were full. Also he's found probably significant restriction of the internal rotation at 60 degrees and also limitation of external rotation at 70 degrees so when Dr Gliksman saw the claimant on 27 August 15 he hasn't established in my opinion that the right shoulder has fully recovered.
The second point is that as regards the ultrasound in November, 24 November 15, the signatory to the report is not on this page but I'm told it was Dr Williamsz who's a radiologist. He spells his name with an S-Z at the end. He found what one would call a description of impingement. In other words, he found a deduction to 110 degrees. He didn't tell us how much further the lady would lift her arm except that it was obviously painful.” (T 212.5-18).

Dr Stephenson also said that the plaintiff was still restricted in overhead work and her overhead capacity was limited because of restricted elevation (T 212.38) even though there was improvement in her level of restriction from November 2015 until May 2016. Dr Stephenson did express the opinion that the plaintiff’s problems with her left shoulder were unrelated to the accident (T 213.1). This appears not to be disputed by the parties.

Findings in relation to the medical evidence

Having regard to the reports of Dr Gliksman, the report of Dr Stephenson and the oral evidence of Dr Stephenson, I find that the plaintiff currently has continued restriction of the final range of movement in the right shoulder and the right wrist. This includes being in the form of reduced right hand grip strength and reduced right shoulder range of motion. Although Dr Gliksman initially considered that the plaintiff’s condition was likely to improve (2 February 2016 report), the persistence of the problems in the plaintiff indicates, nearly three years after the accident, that the plaintiff’s restrictions are probably permanent or will improve only slowly.
Dr Stephenson expressed the view that the symptoms of the cervical strain should resolve satisfactorily. However, he noted that the plaintiff’s movement of her arm and right shoulder were painful. I accept his evidence that the plaintiff is still restricted in overhead work and her overhead capacity is limited because of restricted elevation. These appear to involve a continuing impairment.
On the whole of the medical evidence, I find that the plaintiff’s problems which are shown in some of the reports with her left shoulder are unrelated to the accident. In particular, I accept the opinion of Dr Stephenson in this regard (T 213.1).
It follows that the plaintiff has continued restrictions and limitations in her right wrist strength, the movement in her right arm and shoulder and her capacity to undertake overhead work requiring any strength or reach.

Evidence of Robert Allen

Evidence was given on behalf of the defendant by Mr Robert Allen. Mr Allen is currently employed by the defendant, Sydney Water, having commenced work there as a graduate in February 2007. He was involved in a graduate role for 18 months until he was promoted to the position of Services Delivery Officer. He then worked within the Asset Management Division of Sydney Water from September 2010 to September 2012. From mid-2013 he moved from the Asset Management Division of Sydney Water to the Services Delivery Division within Sydney Water. In that capacity he was the manager for delivering stormwater services for Sydney Water. That role included management of certain assets which included the stormwater outlet at Rose Bay Beach.
Whilst working in the Asset Management Division of Sydney Water Mr Allen reported to Mr Jim Walsh and was trained to move into Mr Walsh’s position as Stormwater Operations Manager.
Mr Allen gave evidence that Sydney Water controls and is responsible for about 450km of stormwater drains within the Sydney region and that the drain at Rose Bay Beach was part of the system. He indicated that the drain transfers road stormwater into a pipe and then outlets it through the beach into the sea. The area serviced by the drain was about 83 hectares.
Mr Allen gave evidence that the drain and concrete apron which existed at Rose Bay Beach prior to mid-2014 had been constructed by the New South Wales Public Works Department, he believed in the early 1930s: T 291.21. He understood the purpose of the concrete apron to be to convey the stormwater flows from the pipe across the beach to prevent scouring on the beach: T 291.31.
In his evidence in chief Mr Allen said that he first became aware of public safety issues in relation to the concrete apron following a fall by a German tourist in 2012: T 291.48. He said he and other management at Sydney Water considered the issue and decided to review the asset: T 292.11. Their concerns were that the concrete apron was structurally at the end of its life and that there had been slips on the concrete apron: T 292.18. More concerns were raised towards the end of 2012 when the headwall of the pipe outlet where it emerged above the beach collapsed.
Mr Allen said that in determining what to do about the beach outlet in 2012 from a public safety point of view Sydney Water considered a number of different options including placing a non-slip surface directly on the drain apron which was not regarded as feasible, constructing a sign and other longer term solutions. The non-slip surface was considered not to be feasible because the products investigated were not used in a marine environment and Sydney Water did not want to be the cause of more slips: T 293.38. The construction of a warning sign was considered a viable response and this in due course was constructed. This sign was a two-sided sign as is shown in Exhibit 2. This was constructed in about March-May 2012 shortly after the defendant was told of the fall and injury of a German tourist: T 294.12.
Mr Allen gave evidence that Sydney Water had two sources of money for something like the retainer of engineers, the first being for operational matters and the second being for capital works. Operational matters largely related to the maintenance of assets whereas capital works funds were used for replacing existing assets or for major repairs to existing assets. Operational matters were regarded as matters involving less than $10,000 (although Mr Allen appeared to be not certain on the amount) whereas capital works matters involved the expenditure of more than $10,000. Mr Allen gave evidence that eventually funding was obtained from other areas of Sydney Water on the basis of public safety to retain GHD Engineers which resulted in the pipe and apron being eventually removed and replaced with a different pipe exit without a concrete apron. This is the first stage of a potential solution. The drain is currently being monitored to determine whether the subsequent stages are required. Stage 3 involves a pedestrian platform going over the drain area.
Mr Allen indicated that it was decided by Sydney Water to adopt a staged approach in relation to the solution to the drain. Mr Allen said that the final approval needed for the reallocation of funding to the GHD Engineering capital works was that of Mr Freeman of Sydney Water who approved the project on 18 September 2013: T 301.28. Mr Allen indicated that funds for capital works if they could not be obtained within Sydney Water were allocated on a four yearly basis by the Independent Pricing and Regulatory Tribunal: T 301.40. Mr Allen said it took from December 2012 to 18 September 2013 to identify available funds: T 302.39. The first stage which removed the concrete apron was, according to Mr Allen, completed by 26 June 2014: T 303.22. Mr Allen indicated that approval under the Environmental Planning and Assessment Act 1979 (“EP&A Act”) was required for all three stages of the proposed GHD Engineering design: T 303.32; T 304.2.
Mr Allen was subjected to detailed cross-examination by counsel for the plaintiff including in relation to potential interim measures that could have been undertaken by Sydney Water prior to the GHD Engineering solution which was completed in June 2014.
Mr Allen gave important evidence and made a number of significant concessions as follows:

Mr Allen conceded that as at 2012 he was aware that Rose Bay Beach was a busy beach: T 322.44;

Mr Allen conceded that as at 2012 he was aware that many pedestrians traversed Rose Bay Beach: T 322.47;

Mr Allen conceded that as at 2012 he was aware that Rose Bay Beach was one of the few “dog friendly” beaches in the Eastern Suburbs of Sydney: T 323.3;

Mr Allen conceded that he attended Rose Bay Beach with at least a representative of Woollahra Council on 13 March 2012: T 306.49. He also conceded that at this time he was told by Woollahra Council that the drain outlet was in a dangerous condition (T 307.3) and that many people had slipped and fallen on the drain (T 326.43; T 327.10; T 329.19);

Mr Allen conceded that by mid-2012 he was aware that a German tourist had fallen on the concrete apron and injured herself on 30 March 2012;

Mr Allen conceded that as a result of his site inspection of the concrete apron at Rose Bay Beach on 13 March 2012 he decided that a two sided warning sign should be erected: T 307.31. He understood that the sign stayed in position until the wall it was attached to collapsed in about November 2012: T 308.7. When the headwall of the drain collapsed, he instructed the maintenance contractor to reattach the same sign which he understands was attached to webbing (facing the water) as indicated in the photos in Exhibit B: T 308.7; T 308.44; T 311.2. At that time there was no head wall to affix the sign to. Mr Allen said the para-webbing indicated in Exhibit B was likely placed by the Sydney Water maintenance contractor, Veolia: T 311.2;

Mr Allen conceded that his proposed 2.2 metre high pole sign with a slippery warning sign on both sides was not constructed (see Exhibit F, page 6): T 313.11. The reasons were that the defendant did not own the beach area; there was concern about the effect of the marine environment and the defendant did not wish to cause any more damage to the aging concrete apron structure by installing the sign on the apron: T 313.43. Therefore the sign was attached to the head wall of the pipe: T 314.4;

Mr Allen conceded that Sydney Water had a budget set aside for urgent remedial repairs: T 315.15. He conceded that there were always resources available to remedy dangerous situations: T 315.23;

In relation to the allegation that Mr Allen knew in 2012 that the apron was dangerous because many people had fallen on it, he said he thought the apron was “potentially” dangerous as at March 2012 as he only knew of one person who had fallen over: T 315.35. In light of other evidence, this was clearly incorrect: he was aware of other falls: see (d) above;

Mr Allen said that he had initially considered that the placement of a non-slip surface on the concrete apron was a good idea (T 316.12) but further consideration altered his view. It was considered after investigations that there was not a suitable non-slip surface product which would work and which was suitable to a marine environment which was wet for frequent periods: T 316.42; T 317.3;

Mr Allen understood the drain to be frequently wet. He conceded that the defendant did not trial the product to test its suitability: T 317.7;

Mr Allen agreed that the placement of a non-slip grid was also considered but was rejected as being unsuitable in a marine environment: T 317.32. He said one factor taken into account was that any drilling into the concrete apron for the placement of a grid could disturb the structure which was towards the end of its service life: T 318.17;

Mr Allen conceded that Sydney Water did not ask GHD Engineering for advice in relation to alternatives at that stage but could have done so: T 317.49-318.7;

Mr Allen was taken to his 15 March 2012 email (Exhibit F, page 7) which stated that the stormwater team would inspect the site once a month to assess how often it would need to be cleaned and then the defendant could put in a job request to its external contractor for cleaning probably every three months. He agreed that inspections did not occur by the defendant once a month and no request was put in to the external contractor, Veolia, for cleaning every three months: T 319.1; T319.15. He gave evidence that Veolia had advised that guerneying and spraying the concrete surface would not work very well as the algae would grow back quite quickly: T 319.18;

Mr Allen conceded that Sydney Water did not own any other stormwater drains as at 2012 with a concrete apron which crossed a public beach: T 319.37. He therefore had no experience in relation to such a construction;

Mr Allen agreed that no regular system of inspection or maintenance was initiated from July 2012 and the concrete apron was not cleaned as an interim measure: T 320.49; T 321.6;

Mr Allen agreed that no stainless steel poles with chains attached to them were erected over the apron or a Japanese-style bridge: T 321.8-.15;

Mr Allen agreed that the only interim safety measure taken by Sydney Water in relation to the drain apron was to erect the sign: T 321.17; T 321.43;

In relation to the suggestion of taking other interim measures such as the installation of a Japanese-style bridge or the affixing of a chain walkway over the drain, Mr Allen indicated that in his view this would require either capital funding or was complex and required approval from other interested parties, the community, Woollahra Council and had environmental issues attached to it: T 322.5. When taken to the plank shown in Exhibit F, page 89, Mr Allen stated that he understood this was placed there by a member of the public: T 322.20;

Mr Allen conceded that guerneying the concrete apron would not have damaged it: T 323.32. He also conceded that labourers could have been retained with a shovel to clean the area and scrub it: T 323.36. In answer to the suggestion that a wooden plank walkway could have been dyna-bolted to the concrete structure, he indicated that Sydney Water did not wish to damage or further dilapidate the concrete apron until a final solution was achieved having regard to the age of the apron: T 323.41-.48. In relation to the suggestion of a rubber mat being placed over the drain and stapled to the drain, Mr Allen said he did not think this would work in a marine environment due to algae coming on such a mat: T 326.12. Mr Allen conceded that Sydney Water had the resources at the time to engage the contractor, Veolia, to undertake cleaning of the drain apron on a monthly basis: T 330.28. Mr Allen agreed that the apron needed particular attention: T 330.40;

Mr Allen disagreed with the suggestion that the concrete apron did not get the priority it deserved from Sydney Water: T 331.41. He said the two sided sign had been erected, there had been site inspections and that in due course GHD Engineering had been retained for a comprehensive structural solution: T 331.44. Mr Allen said that solutions other than the sign had been looked into by Sydney Water and were not deemed to be practical prior to a long term solution. He said he did not think the other solutions were appropriate: T 332.9;

Mr Allen conceded that Tim Osmand, Belinda Duncan and Matthew Lewis (the latter being the Acting Manager Stormwater for the defendant as at July 2012) all still work for Sydney Water. None of them gave evidence;

Mr Allen indicated that the defendant took a 10 yearly structural assessment of all of its assets such as the stormwater drain: T 335.22;

Mr Allen conceded that Sydney Water in 2012-13 did not take any steps to remove algae from the drain to make it less slippery. Mr Allen agreed that Sydney Water should take into consideration public safety as a priority: T 339.41;

In re-examination Mr Allen conceded that he did not arrange monthly cleaning through the contractor Veolia of the concrete apron: T 341.9. He said he did not arrange this as he did not think cleaning would work on the surface. Veolia had advised that they had cleaned similar assets and the algae grew back quickly. Further, the tidal sand would need to be removed before it was cleaned. The asset was close to residences and this would cause noise and disturbance. In the end he thought it was impractical to do the cleaning: T 342.2. In relation to the placement of a non-slip grid, Mr Allen gave evidence in re-examination that he thought it was feasible to do it and it could have been attached to the concrete apron but he did not want to further dilapidate the concrete apron: T 324.19. He said he further did not see a non-slip grid in either steel plate, rubber or plastic as being a practical alternative: T 343.16.

Overall, I found Mr Allen to be a truthful witness. The real issue in the proceedings is the reasonableness of the decisions made by Sydney Water in which he was involved in 2012-13.

Submissions for the plaintiff

The plaintiff submitted in summary as follows:

Rose Bay Beach was a busy beach in the densely populated Eastern Suburbs of Sydney. Australians are “beach goers”;

The concrete apron on the beach constituted a dangerous hazard to beach users. There was no practical alternative in the circumstances for the plaintiff to traverse the concrete apron;

The defendant was well aware prior to the accident that falls had occurred on the apron and it was dangerous. That knowledge was held since at least March 2012;

There were many reasonable interim measures which were available to the defendant to take in relation to the concrete apron. These should have been taken as the apron was dangerous. Merely installing a small two-sided sign to the stormwater outlet was not sufficient. This was particularly the case after the head wall collapsed and the sign was placed on para-webbing facing the beach where it could not be reasonably seen by users;

Potential reasonable interim solutions until a final structural solution was arranged included regularly cleaning the apron, guerneying it, installing a non-slip surface, installing a non-slip grid, constructing a bridge, affixing planks over the drain; installing a steel pole and chain mechanism to hold onto whilst crossing the drain. These were reasonably available and no steps were taken by the defendant;

The plaintiff should be accepted that she did not see the sign. The drain was not an obvious risk;

The potential for interim measures to be adopted meant that the defences in Sections 5H and 5I of the Civil Liability Act were inapplicable. In relation to the defence under Section 5M, the sign after it was reattached was ambiguous about the risk warning and was not situated such that it was reasonably likely to result in people such as the plaintiff being warned of the risk before engaging in their recreational activity;

On the facts no contributory negligence has been established. The plaintiff exercised care in crossing the drain;

The resources defence under Section 42 of the CLA was not applicable as there were no financial constraints to taking steps on an interim basis promptly and the defendant had a budget for urgent measures;

In relation to the defence under Section 43A the defendant was not exercising a special statutory power. If it was, the acts and/or omissions of the defendant were so unreasonable that no authority having the special statutory power could properly consider the acts or omissions to be a reasonable exercise of, or failure to exercise, its powers;

The plaintiff had suffered a life altering but not catastrophic injury which impacts on virtually every aspect of her daily life. Future commercial care was needed. Substantial damages were warranted.

[36] Secondly, the test is formulated in the negative. By contrast with s 5B(1)(c) of the Civil Liability Act, it is not satisfied by evidence of what a reasonable traffic engineer would have done as a precaution against an identified risk. Rather, it is only satisfied by proof that no traffic engineer acting reasonably would have failed to take the precaution identified by the plaintiff. That is, accepting that there will be a range of views amongst reasonable traffic engineers, the omission must be such that no person with the requisite expertise could properly consider the omission to be reasonable. The fact that a high threshold is being prescribed is revealed by the double negative, “so unreasonable that no authority …”.
[37] Thirdly, the section reformulates the standard by which a breach of duty is to be judged. Once the section is engaged, the plaintiff will have to establish negligence beyond the statutory threshold in order to succeed. An assessment of the relevant evidence in the present case demonstrates that the plaintiff failed on any view to establish that burden. (Indeed, it may be doubted whether the evidence established breach according to the ordinary standard identified in s 5B.)”

In Mansfield v Great Lakes Council [2016] NSWCA 204 Basten JA (with whom Beazley P and Leeming J agreed) stated as follows at [34] -[37]:

“[34] The issue in dispute therefore resolved itself into a question whether the omission was “so unreasonable” that no roads authority could properly consider the omission to be a reasonable exercise of, or failure to exercise, its statutory powers.
[35] The standard of unreasonableness incorporated into s 43A derives from the ground of judicial review of administrative action which allows, in extreme and unusual circumstances, a qualitative review of the decision of the administrator, in circumstances where no relevant legal error can be identified. Such an approach was accepted by Lord Hoffmann in Stovin v Wise, a view from which he partly recanted in Gorringe v Calderdale Metropolitan Borough Council, in passages discussed in Curtis. The justification for adopting such a standard may have been in part that there was seen to be an inconsistency between the conferral, by statute, of a discretionary power on a statutory authority and the imposition, by the general law, of a duty to exercise that power. In the language used by Gummow J in Pyrenees Shire Council v Day a claimant in tort seeks “to translate the public law ‘may’ into the common law ‘ought’.” The effect of s 43A is that a statutory power to act will be coupled with a duty to act for the purposes of civil liability in tort by adopting broadly analogous principles from public law.
[36] The trial judge found that the plaintiff failed to satisfy the high hurdle created by s 43A in circumstances where it had proffered no evidence to demonstrate that no roads authority acting reasonably would have failed to undertake the replacement of the culvert prior to 1 January 2010. The appellant submitted that this was an erroneous approach, because the test was objective and the relevant inference could be drawn from the evidence in fact adduced at trial.
[37] Although not clearly identified in the appellant’s submissions, there were in effect two limbs to the exercise upon which it relied. First, the circumstances in which the omission occurred involved, on one view, ignorance on the part of the Council as to factors which would have required it to act. If that were correct, the appellant needed to establish that the ignorance of the Council was itself so manifestly unreasonable that no council acting properly could have failed to identify the circumstances calling for action. The second limb of the exercise was to establish that, given the knowledge which it ought to have had on that standard, the Council could not have failed to act.”

In 2012-2013, the evidence establishes that the defendant, through its officers, was aware:

That Rose Bay Beach was a busy beach in the Eastern Suburbs of Sydney;

That many people had slipped and fallen on the stormwater drain prior to 13 March 2012;

That a German tourist had slipped and fallen on the drain on 30 March 2012 suffering serious injuries;

That the defendant had decided that a review needed to be conducted of the site as a matter of public safety;

That it was necessary to warn members of the public of the dangers of slipping on the drain by the erection of a two-sided sign on the drain headwall;

That it was reasonable to consider and investigate prudent interim safety measures other than a two-sided sign;

That there was potential for serious injury to be incurred to persons traversing the drain by falling on the slippery surface;

That persons at the public consultation meeting in October 2012 had referred to the danger of the existing drain apron.

In my view, in those circumstances, no reasonable public authority would or could have waited such a lengthy period until mid-2014 as occurred for a contractor to provide a final structural solution. In my view, any reasonable public authority would have investigated all possible interim solutions as a matter of some urgency and, if necessary, would have consulted external experts to come up with a suitable safe interim solution in the meantime. Merely erecting a two-sided sign which had collapsed in November 2012 and was then reattached facing the sea in my opinion was manifestly unreasonable in all the circumstances. As at October-November 2012 the defendant was not aware that it would have been able to locate the capital works moneys from other areas to undertake Stage 1 of the works completed in mid-2014. The danger of the drain could have existed as at October-November 2012 for many more years unless action was taken to protect the public.
I conclude that the omission of the defendant in the circumstances to take the interim measures which I have found should have been taken was so unreasonable that no public authority having the special statutory power in question which the defendant had could properly consider the omission to take action to be a reasonable failure to exercise its power within Section 43A(3) of the CLA.
In arriving at this conclusion I take into account the reasons of the Court of Appeal in Roads and Maritime Services v Grant [2015] NSWCA 138 and Mansfield v Great Lakes Council [2016] NSWCA 204 referred to above.
I note that:

The requisite assessment of unreasonableness is to be made by an hypothetical reasonable public authority: the court must make the assessment and it must do so by reference to the approach properly taken by such an authority;

The section is only satisfied by proof that no public authority acting reasonably would have failed to take the interim measures identified by the plaintiff in the present case. That is a high threshold;

The section incorporates by reference a test similar to the public law Wednesbury Corporation test;

A plaintiff will still have to establish negligence beyond the statutory threshold in order to succeed in proceedings.

This case is quite different in my view to Mansfield. In Mansfield the omission involved, on one view, ignorance on the part of the council in question as to factors which would have required it to act. In the present case, the defendant was well aware that falls and injuries had occurred by persons slipping on the concrete apron in question. With the knowledge which it had arising from those falls and the public consultation meeting, together with the seriousness of the injuries that had occurred in at least one case and which could potentially occur, in my view the conduct of the defendant was manifestly unreasonable and no reasonable defendant authority could have failed to act in the circumstances to take the interim measures.
The present circumstances are unusual where the public authority defendant had precise knowledge of serious falls which had occurred and the risk to the public of further falls. Concern about the dilapidated state of the drain and further concerns that any steps may damage the drain further towards the end of its practical life, are in my view not decisive. In circumstances when the defendant was actively considering a final solution to the problem with external engineers and where capital funding was uncertain, no reasonable authority in the position of the defendant could have failed to act to prevent the serious risk posed to members of the public for potentially years.
In coming to this conclusion, the court:

Recognises the seriousness of the findings;

Takes into account the defendant’s internal consideration and rejection of a number of interim measures;

Takes into account the evidence given in re-examination by Mr Allen particularly at T 342.1-T343.18. The evidence at T 342.2-.13 did not involve the defendant seeking advice about cleaning part of the apron utilised for a walkway purpose or the frequency of cleaning required for that limited purpose.

For all of the above reasons I find that the defendant breached its duty of care to the plaintiff and caused the plaintiff the injury which she suffered on 30 November 2013.

Contributory negligence

The defendant asserts that the plaintiff’s damages should be reduced because of contributory negligence.
Sections 5R and 5S of the CLA provide as follows:

“5R   Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a)  the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b)  the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.”

In considering contributory negligence I take into account the comments of the Court of Appeal in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [144]-[145].
The defendant submits that the contributory negligence of the plaintiff is significant and there should be a finding of 100% contributory negligence.
The plaintiff submits that there should be a finding that there was no contributory negligence on her behalf.
In my view, having assessed all the evidence, I do not believe that any damages awarded to the plaintiff should be reduced because of the contributory negligence alleged.
I take into account the following matters:

The plaintiff gave evidence that she had walked over the concrete drain before on a few occasions and had not slipped;

On the day in question Ms McKenzie had walked across the drain in front of her and had not slipped;

The plaintiff was wearing sneakers at the time of crossing the drain;

The plaintiff observed the drain carefully before she proceeded and stepped wherever possible on the sand covered areas. The plaintiff appeared to me to be a careful person;

Whilst she was aware that there was a risk of slipping she took all reasonable precautions in the circumstances before crossing the drain;

Her dog had already crossed the drain and was well ahead of her;

The level of the sea was, according to the plaintiff, near the end of the drain and walking around the end of the drain was not practical in the circumstances;

There was no evidence that the plaintiff was aware at the time of other people having slipped on the drain;

The sign shown in Exhibit B3 had not been seen by the plaintiff or Ms McKenzie and appeared to be facing the sea.

Taking all of these matters into account I find that there was no contributory negligence by the plaintiff.

Quantum issues

The evidence establishes that the plaintiff was in good health prior to the accident with no issues in relation to her wrist, right shoulder or back.
I have already made findings in relation to the medical issues above. In my opinion, the plaintiff would not have had the continuing disabilities with her right wrist and right shoulder but for the accident.

Assessment of damages

I now set out my findings in relation to the heads of damages which are claimed by the plaintiff in the present case.
The parties made the following submissions in relation to the damages which should be awarded to the plaintiff:

Head of damage

Plaintiff’s submission

Defendant’s submission

Section 16 Non-economic loss

28%

   $84,500.00

15%

$6,000.00

Past economic loss

   $3,600.00

Nil

Future economic loss

Buffer

   $50,000.00

Nil

Out of pocket expenses

$7,961.00

Less than $4,500.00

Future out of pocket expenses

$21,066.00

Nil

Past domestic assistance

  Nil

Nil

Future commercial assistance

$61,806.00

Nil

Total

$228,933.00

About $10,500.00

It should be noted that the non-economic loss percentage claimed by the plaintiff increased from 27% to 28% following the conclusion of the hearing.

Non-economic loss

The plaintiff as set out above, claims 28% pursuant to Section 16 of the CLA, which is calculated following the increase on 1 October 2016 at $84,500. Counsel for the plaintiff submits in his submissions that the plaintiff has suffered a life altering injury, albeit not of a catastrophic kind but one which impacts on every aspect of her daily life: paragraph [66]. It is asserted the plaintiff has an ongoing need for medical treatment and has a limitation in her physical activities which she has previously enjoyed.
In my view, the plaintiff has continuing physical limitations that affect her daily living but they are not of the serious kind submitted by the plaintiff. Assessing all the facts of this case, including the nature of the injury, the medical evidence and the plaintiff and her husband’s evidence of her restrictions which I accept, I assess the plaintiff’s entitlement under this head as 20% of a most extreme case. This is $21,000.

Past economic loss

The plaintiff claims $3,600 and asserts that there should be little controversy here and the amount claimed should be allowed.
The defendant says no amount should be awarded.
I accept the defendant’s written submissions in this regard: paragraphs [178]-[181]. The evidence establishes that the plaintiff was paid her salary by David Jones for the period of about two months after her accident: T 105.15-.29.
Having regard to this evidence the plaintiff does not appear to have suffered any loss of salary or past economic loss as a result of the accident and I do not award any damages under this head.

Future economic loss

The plaintiff seeks a buffer in an amount of $50,000 under this head. The plaintiff relies on her difficulty with her right shoulder in particular and the problems she has when she has marketing events for her business. It is submitted that given the physical restrictions the plaintiff suffers from and the fact that she works for herself the buffer claimed for should be allowed. It is submitted that the appropriate assumptions for the court to make are that the plaintiff will continue to work in the same business area, that physical work is required from time to time for marketing events, that she will continue to have difficulty with those physical tasks and that there is a potential limitation in her earning capacity. Obviously the evidence must be taken into account that she proposes to have further children which may cause breaks in her earnings.
In Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Tobias AJA (with whom Basten and Meagher JJA agreed) stated as follows at paragraphs [118]-[119]:

“[118] In Kallouf v Middis [2008] NSWCA 61 the Court (comprising McColl JA and Hall J) set out at [46]–[61] the principles guiding the assessment of future economic loss. It was emphasised that what is involved is an assessment of the injured party’s loss or diminution of earning capacity rather than loss of earnings, provided that that loss or diminution is productive of financial loss. True it is that where incapacity is established at the date of trial, what is to be evaluated is the extent of the possibility that the plaintiff may not work in the future or may lose time from work and allowance must be made in the determination of compensation in respect of that possibility. That evaluation will depend upon the evidence. However, it is for the defendant who contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to him or her: see also Mead v Kerney [2012] NSWCA 215 at [25]–[27] per Macfarlan JA, McColl JA and Sackville AJA agreeing.
[119] As the assessment of damages for future economic loss involves reference to future or hypothetical events, it has been described as a “process of estimation of possibility” which is “necessarily an imprecise matter of estimation, carried out within broad parameters”. Nevertheless, the onus lies upon a plaintiff to adduce evidence to establish not only the extent to which his or her earning capacity has been diminished but also the financial loss that that will cause. In that assessment, past earnings are a relevant consideration.”

A buffer may be awarded (Penrith City Council v Parkes [2004] NSWCA 201) but only if the diminution of earning capacity is or may be productive of financial loss: Medlin v State Government Insurance Office (1995) 182 CLR 1 at [3].
There is no suggestion that the plaintiff was likely to have been limited in the way she is but for the accident.
Doing the best I can on the limited evidence, I think that there is a real possibility that the plaintiff’s future earning capacity will be diminished to some extent having regard to her restrictions and she may well be unable to take on certain jobs that require more physical work with the setting up and dismantling of displays/advertising boards and the like. Alternatively, she may well need to pay for an assistant in some cases.
However, I do not think that the buffer claimed of $50,000 by the plaintiff is appropriate. Doing the best I can on all the evidence I allow the amount of $15,000 under this head of damages for the chance of a diminution in earning capacity.

Past out of pocket expenses

The plaintiff seeks the amount of $7,961.12 for past out of pocket expenses which are agreed mathematically. The defendant says that these are partly due to the plaintiff’s left shoulder and in relation to the massage and acupuncture which were not required. It seems that some of the problems for which the plaintiff sought assistance related to her left shoulder and other problems unrelated to the accident.
Some of the treatments seem to involve the plaintiff in taking active steps in improving her limitations.
Doing the best I can on the limited material I allow $6,000 under this head. This allows some reduction for treatment of the plaintiff’s left shoulder and other unrelated problems: see Exhibits 6 and H (pages 31 and 32). However, it seems that Ms Evans, physiotherapist, recommended massage and acupuncture to assist the plaintiff. Generally, where there are objections to past out of pocket expenses, the defendant must identify those objected to otherwise the court is entitled to accept the amounts without further detailed consideration: see Dybka v McKenzie [2001] NSWCA 171 at [13]. However, some reduction should be made in the present case in my view.

Future out of pocket expenses

The plaintiff claims a buffer amount of $21,066.50 for future out of pocket expenses. These relate to Pilates, physiotherapy, massage, acupuncture/ osteopathic treatment and an allowance for limited painkillers and anti-inflammatories as part of a buffer approach. The plaintiff makes the claim for a further five years from the plaintiff’s past expenses which should take into account the plaintiff’s childbearing years.
Dr Stephenson in his 3 May 2016 report said there were no indications for any more active treatment particularly physiotherapy, although a home based physiotherapy exercise programme could be continued. Dr Gliksman in his report dated 12 July 2016 disagreed with Dr Stephenson’s conclusion about the ongoing need for treatment in the future for the plaintiff. In his oral evidence, Dr Stephenson noted ongoing restrictions in the plaintiff.
Taking into account the evidence, in my view some allowance should be made on a buffer basis for future likely out of pocket medical and related expenses. I allow a $12,000 buffer under this head of damages.

Past domestic assistance

Both parties agree that the claim of the plaintiff does not cross the statutory threshold under the CLA and accordingly I award no amount under this head.

Future commercial assistance

It is submitted on behalf of the plaintiff that she continues to have difficulties with her wrist and right shoulder. It is stated that the plaintiff would not have a cleaner now to assist her with household tasks if it were not for the accident. It is said that she only had assistance at the time of the accident because she was working fulltime in a demanding job. I refer to the evidence set out in paragraph [33] above. The plaintiff gave evidence that if an allowance was made in her damages for commercial assistance with the household tasks she had difficulty performing she would avail herself of that award: T 63.46. The amount sought by the plaintiff is calculated on the basis of future commercial assistance for 2.5 hours per week x $25 x a multiplier of 988.9 being the 5% multiplier for the plaintiff’s life expectancy of 53 years. In my view the number of hours sought at the rate sought are appropriate and I find that the plaintiff needs assistance for this period. The rate of $25 per hour was the rate which the plaintiff paid for her current cleaner which appears very reasonable: T 61.24. However, in my view providing commercial assistance for the plaintiff’s life expectancy is excessive. It is expected that as the plaintiff grows older she would require commercial assistance for cleaning in any case. I accordingly allow the commercial assistance for 48 years for which the multiplier is 966.6 which comes to the amount of $60,412 which I allow.
I have taken into account the defendant’s written submissions (paragraphs 199-213). In my view the child care expenses are not related to the accident but the cleaning expenses as claimed are. They relate to the difficulty with the plaintiff’s right shoulder and have been reduced for unconnected matters.
According to my calculations the amount to be awarded to the plaintiff is $114,412. I will enter judgment for the plaintiff. However, because of the potential for errors in calculation I grant leave to the parties to bring in Short Minutes of Order reflecting the mathematically agreed calculation of damages. Liberty to apply to the court is also granted in relation to the issue of costs.
A summary of the damages I have allowed is as follows:

Non-economic loss

$21,000.00

Past economic loss

Nil

Future economic loss

$15,000.00

Past out of pocket expenses

$6,000.00

Future out of pocket expenses

$12,000.00

Past domestic assistance

Nil

Future commercial assistance

$60,412.00

Total

$114,412.00

I therefore make the following orders:

Judgment for the plaintiff against the defendant.

Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum.

The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

Liberty to apply in relation to costs.

Exhibits to be retained for 28 days.

**********

Decision last updated: 20 December 2016

Medium Neutral Citation:	Hodgson v Sydney Water Corporation [2016] NSWDC 361
Hearing dates:	21 September 2016-23 September 2016,21 November 2016-22 November 2016, 25 November 2016
Date of orders:	15 December 2016
Decision date:	15 December 2016
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant. (2) Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum. (3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (4) Liberty to apply in relation to costs. (5) Exhibits to be retained for 28 days.
Catchwords:	Tort – negligence – fall on concrete apron of drain crossing public beach – whether risk obvious – practicability of interim measures – whether risk warning given – Sections 5B, 5D, 5F, 5I, 5M, 42 and 43A of the Civil Liability Act.
Legislation Cited:	Civil Liability Act 2002 (NSW) Sydney Water Act 1994 (NSW) Environmental Planning and Assessment Act 1979 (NSW)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Bankstown City Council v Zraika [2016] NSWCA 51 Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Brodie v Singleton Shire Council (2001) 206 CLR 512 Curtis v Harden Shire Council [2014] NSWCA 314; 88 NSWLR 10 Dybka v McKenzie [2001] NSWCA 171 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Mansfield v Great Lakes Council [2016] NSWCA 204 Medlin v State Government Insurance Office (1995) 182 CLR 1 Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 Penrith City Council v Parkes [2004] NSWCA 201 Roads and Maritime Services v Grant [2015] NSWCA 138 Rockdale City Council v Simmons [2015] NSWCA 102 Sharp v Parramatta City Council [2015] NSWCA 260 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Strong v Woolworths Ltd (2012) 246 CLR 182 Takla v Nasr [2013] NSWCA 435 Wallace v Kam (2013) 250 CLR 375 Wilkinson v Law Courts Ltd [2001] NSWCA 196
Category:	Principal judgment
Parties:	Phoebe Hodgson (Plaintiff) Sydney Water Corporation (Defendant)
Representation:	Counsel: R Foord (Plaintiff) S Glascott (Defendant) Solicitors: Deniston Day (Plaintiff) Makinson d’Apice (Defendant)
File Number(s):	2015/198391

Head of damage	Plaintiff’s submission		Defendant’s submission
Section 16 Non-economic loss	28%	$84,500.00	15%	$6,000.00
Past economic loss	$3,600.00	Nil
Future economic loss	Buffer	$50,000.00	Nil
Out of pocket expenses	$7,961.00	Less than $4,500.00
Future out of pocket expenses	$21,066.00	Nil
Past domestic assistance	Nil	Nil
Future commercial assistance	$61,806.00	Nil
Total	$228,933.00	About $10,500.00

Non-economic loss	$21,000.00
Past economic loss	Nil
Future economic loss	$15,000.00
Past out of pocket expenses	$6,000.00
Future out of pocket expenses	$12,000.00
Past domestic assistance	Nil
Future commercial assistance	$60,412.00
Total	$114,412.00