Illingby v Ratewave Pty Limited t/as Novotel Manly Pacific Hotel

[2015] NSWDC 302

District Court

New South Wales

Medium Neutral Citation:

Illingby v Ratewave Pty Limited t/as Novotel Manly Pacific Hotel [2015] NSWDC 302

Hearing dates:

27, 28 and 29 July 2015

Date of orders:

18 December 2015

Decision date:

18 December 2015

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.   Verdict and judgment for the plaintiff in the sum of $129,500;

 

2.   The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

 

3.   The exhibits may be returned;

 4.   Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – occupier’s liability – hotel premises – whether negligence has been established – whether the alleged defences of obvious risk and contributory negligence have been established; DAMAGES – assessment of claimed heads of damage pursuant to provisions of Civil Liability Act 2002 – claim for value of domestic services provided in Canada

Legislation Cited:

Civil Liability Act 2002, s 5B – s 5G, s 15, s 16
Occupational Health and Safety Act 2000

Cases Cited:

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Blacktown City Council v Hocking [2008] NSWCA 144
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Glen v Sullivan [2015] NSWCA 191
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mason v Demasi [2009] NSWCA 227
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Reece v Reece [1994] NSWCA 259
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Category:

Principal judgment

Parties:

Bjorn Illingby (Plaintiff)
Ratewave Pty Limited (Defendant)

Representation:

Counsel:
Dr S Thornton (Plaintiff)
Mr S Walsh (Defendant)

  Solicitors:
Schreuder Partners (Plaintiff)
Thompson Cooper (Defendant)

File Number(s):

2012/188752

Publication restriction:

None

Judgment

Table of Contents

Nature of case and factual background	[1] – [4]
Illustrative photographs	[5] – [15]
Issues	[16] – [17]
Evidence overview	[18] – [21]
Credibility and reliability of testimony	[22]
Facts	[23] – [90]
Plaintiff’s pre-accident circumstances	[24] – [25]
Plaintiff’s pre-accident medical history	[26] – [34]
Accident circumstances	[35] – [41]
Injuries and treatment	[42] – [46]
Medical and allied assessments and reviews	[47] – [86]
Disabilities	[87] – [90]
Opinions of liability experts	[91] – [156]
Reports of liability experts	[102] – [137]
Oral evidence of the experts	[138] – [153]
Conclusions on expert evidence	[154] – [156]
Issue 1 – Whether obvious risk : s 5F & s 5G of the CL Act	[157] – [173]
Issue 2 – Duty of care, alleged breach, causation of harm	[174] – [200]
Issue 3 – Alleged contributory negligence	[201] – [206]
Issue 4 – Causation of ongoing disabilities	[207] – [215]
Issue 5 – Assessment of damages	[216] – [254]
Plaintiff’s probable life span	[217]
Non-economic loss	[218] – [224]
Past domestic assistance	[225] – [240]
Future domestic assistance	[241] – [247]
Future treatment expenses	[248] – [250]
Out-of-pocket expenses	[251] – [253]
Summary of damages assessment	[254]
Disposition	[255]
Costs	[256]
Orders	[257]

Nature of case and factual background

1. The plaintiff, Mr Bjorn Illingby, a resident of British Columbia in Canada, brings these proceedings against the defendant, Ratewave Pty Limited, as the occupier of premises known as the Novotel Manly Pacific Hotel, claiming damages for personal injuries due to alleged negligence which caused him to sustain a fall on the premises.

2. On 19 June 2009, when the plaintiff was aged 66 years, he tripped and fell over a raised decorative timber platform or display stand located on the floor of the lobby of the defendant’s hotel premises. As a result, he suffered straining or bruising injuries to his neck, shoulder and back, and as a result, he claims this loss left him with lasting disabilities.

3. The plaintiff claimed the prevailing lighting conditions in the hotel foyer, which included the effects of intense glare coming through windows, prevented him from seeing the raised platform on which he had tripped.

4. The defendant denied it had been negligent, and in its defence it claimed that the circumstances of the plaintiff’s fall involved obvious risk, and in the alternative, alleged contributory negligence. The proceedings are governed by the provisions of the Civil Liability Act 2002 (the CL Act).

Illustrative photographs

5. There were a number of photographs tendered in evidence relating to the general layout of the hotel lobby. The general difficulty of drawing factual conclusions from the interpretation of photographs alone in such cases is well understood: Blacktown City Council v Hocking [2008] NSWCA 144, at [169]. This was also well understood by the liability experts when they gave their evidence concurrently: T103.23 – T103.28.

6. The photographs taken of the area in question at different times also showed different configurations of some objects that were in the foyer on the day of the plaintiff’s fall. The series of photographs reproduced and described in the ensuing paragraphs illustrate the difficulty of relying on photographs to understand or to ascertain the prevailing lighting conditions of the premises at the time of the plaintiff’s fall. That difficulty is pronounced when exposure dates, times, angles, and lighting details for those photographs are not known.

7. The general area where the plaintiff fell is shown in the following photograph which was taken by the plaintiff on the day of his fall. That photograph has been copied from Exhibit “B”, at p 388. The decorative raised timber platform where the plaintiff tripped appears to the centre and to the right rear of the photograph.

8. The photograph appearing immediately below was also taken by the plaintiff on the day of his fall. That photograph has had an identifying circle applied to it to indicate the place where the plaintiff fell.

9. Some other photographs extracted from the evidence are also illustrative.

10. The photograph appearing immediately below, which is identified as photo 7 in Exhibit “C”, and which is also replicated in the report of the defendant’s expert, Exhibit “2”, shows the hotel foyer in what appears to be low light conditions, even though the ceiling lights appear to be on. That photograph appears to have been taken after the removal of the interior pot plants that are evident in the photograph taken by the plaintiff, and which is copied at paragraph [7] above.

11. Another photograph also extracted from Exhibit “C”, also identified as photograph 8 in Exhibit “C”, shows a more illuminated view of the same hotel foyer taken by the defendant’s expert in March 2014, some 5 years after the plaintiff’s fall.

12. In his evidence, on that photograph, the plaintiff has marked with the letter “S”, the edge of the raised platform where he tripped: T17.35.

13. The above photograph also shows two “X” markings that were made by the plaintiff in the course of his evidence. Those markings were intended to represent the approximate positions of the pot plants that previously appeared on the day of the fall, as shown in the photograph at paragraph [7] above: T17.13.

14. The two arrows marked in the centre of that photograph are intended to show the direction of travel taken by the plaintiff and his sister as they were walking in the premises just before he fell: T17.28. Those marked arrows are not intended to represent the actual position of the plaintiff, nor are they intended to represent the route that he took in the lead-up to his fall: T41.37.

15. The photograph appearing immediately below, which has also been extracted from Exhibit “C”, shows a closer view of the place where the plaintiff fell.

Issues

16. At the commencement of the trial, numerous issues were identified for determination: MFI “1”. Following a review of the evidence and the submissions of the parties, the issues may be conveniently condensed into the following formulations:

Issue 1 -    Whether the raised timber platform on which the plaintiff tripped constituted an obvious risk, within the meaning of s 5F and s 5G of the CL Act;

Issue 2 - The nature, content and alleged breach of the duty of care owed to the plaintiff, and whether such alleged breach caused the plaintiff’s injuries, having regard to the requirements of s 5B, s 5C and s 5D of the CL Act;

Issue 3 -   Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent;

Issue 4 -   The extent to which the plaintiff’s ongoing disabilities have been caused by the subject fall;

Issue 5 -   The assessment of the plaintiff’s entitlement to the claimed heads of damage.

17. The issues that arise concerning the nature and extent of the plaintiff’s injuries, the residual effects of any ongoing disabilities, and the effects of these matters on the plaintiff’s amenity of life and his domestic activities, raise a number of related questions that will be considered in those portions of my reasons that deal with damages.

Evidence overview

18. In the plaintiff’s case, in addition to the plaintiff’s own evidence, oral evidence was called from a consultant expert safety engineer, Mr Ian Burn. The only oral evidence called by the plaintiff on medical and damages issues was from Dr John Davis, a consultant occupational physician.

19. In the defendant’s case, oral evidence was called from its financial controller, Mr Pedro Porto, who produced and explained some liability related documents and explained some insurance broking issues, but whose evidence otherwise threw little light on the issues calling for decision. The defendant also called a consultant expert architect, Dr Peter Cooke.

20. After a conclave meeting between experts was ordered, the experts prepared a joint memorandum and then gave their evidence at the same time: UCPR r 31.31. The reliability and weight of the expert evidence is influenced by the assumptions on which that evidence is based.

21. The remainder of the evidence comprised the tender of voluminous documentation, which mainly related to damages issues. This will be referred to where it becomes relevant to do so.

Credibility and reliability of testimony

22. The plaintiff was an impressive witness. Allowing for some cultural differences inherent in some of the expressions he used in his evidence, I nevertheless considered that he gave his evidence truthfully, and with a degree of laconic restraint or understatement as to the extent of his ongoing complaints. I accept his evidence as being generally reliable. No criticism should arise from his lack of detailed recall of his long distant medical history which seems to have been adequately covered in the documents tendered. No credit issues arose regarding any of the other witnesses, whose evidence stands to be evaluated according to its content.

Facts

23. Unless otherwise stated, my findings of fact are as follows.

Plaintiff’s pre-accident circumstances

24. The plaintiff is presently aged 72 years. He was born in Denmark. He grew up in New Zealand where he qualified as an electrician. Since the age of 24, he has been a resident of British Columbia, Canada, where he initially worked as an electrician before commencing his own business.

25. Until the plaintiff’s retirement in 2007, the plaintiff conducted a significant contracting business carrying out emergency repairs to premises affected by natural disasters. Following his retirement, and up until the subject injury, he continued to remain physically active and self-sufficient in his leisure and domestic activities: T10 – T11. This is despite having had a long past history of other injuries and related intermittent disabilities.

Plaintiff’s pre-accident medical history

26. The plaintiff has had an active life during which he was involved in a number of accidents in which he sustained injuries. In his oral evidence in chief, he described those events as follows.

27. In 1988, he had a significant motor vehicle accident which resulted in him sustaining fractures to L4 and L5 vertebrae. He said he had recovered from the effects of those injuries over a number of weeks, following which he returned to his work: T12.35 – T13.4. It appears from the documentary evidence that the plaintiff did not return to full work duties for some months: Exhibit “10”, p 26.

28. In 1990, he was working at a height of about 60 feet in the bucket of a cherry picker when its supporting bolts sheared off resulting in him falling about 8 feet until his lanyard restraint prevented him from falling further. In those events he suffered an injury to his gallbladder, his left thumb, a dislocated left hip, and a jarring injury to his neck. He was in hospital for a weekend, he was off work for about 2 weeks, and then returned to his work: T13.14 – T14.25.

29. He has also had a previous minor motor vehicle accident when his stationary vehicle was struck from behind. He did not sustain any significant injury but was shocked by the occurrence: T14.46 – T15.7.

30. Before the accident which is the subject of the present proceedings, the plaintiff was in the habit of obtaining what he described as periodic maintenance treatment from a chiropractor whom he was accustomed to attending. He understood that treatment was directed at the soft tissues of his spine to ensure proper alignment: T14.29 – T14.33.

31. The plaintiff was cross-examined in detail on the above history of prior injuries. That cross-examination was based on an extensive tender bundle of medical and allied materials assembled by the defendant, some of which were also replicated in the plaintiff’s tender bundle: Exhibit “10” and Exhibit “B”.

32. In my view the cross-examination of the plaintiff did not reveal his evidence to be either unreliable or untruthful. His evidence was not relevantly contradicted. To the extent that the plaintiff’s evidence of his pre-injury condition was less detailed than the content revealed by the defendant’s tender bundle, I considered this to be due to the structure of the questions asked of him rather than any active concealment on his part. It was not suggested otherwise.

33. An examination of the respective tender bundles revealed that the plaintiff has had a number of medical investigations and treatments that were not specifically dealt with in his evidence in chief. Without reciting all of those matters, essentially, they were as follows:

1. A general history of at least 10 years of “back problems” pre-dating 1985: Exhibit “10”, p 3;

2. The back problems always responded to manipulative treatment: : Exhibit “10”, p 3;

3. A series of accidents comprising a motor vehicle accident, a skiing accident and waterslide accident were described in Exhibit “10”, p 3;

4. Radiological imaging taken in 1985 was reported as showing a compression fracture of L1, and degenerative disc disease at L4-5: Exhibit “10”, p 1;

5. A pre-accident picture of chronic intermittent episodic back pain to which the manipulations were directed: Exhibit “10”, p 4;

6. Extensive consultations with medical practitioners from 6 January 1987 to 30 May 1988 for neck, chest and lower back problems. The handwritten notes relevant to those matters are difficult to decipher: Exhibit “B”, pp 192 – 214;

7. Pre-accident degeneration in the cervical spine and soft tissue injuries to the neck and low back in the 1988 motor vehicle accident: Exhibit “10”, p 5, p 19; Exhibit “B”, pp 378 - 381;

8. Chest and lumbar injuries, the latter being compression fractures of L1 and L2 following a motor vehicle accident in 1988: Exhibit “10”, p 9;

9. Narrowing of the L4/L5 disc space: Exhibit “1”, p 15;

10. Extensive pre-accident physiotherapy for the 1988 accident: Exhibit “10”, p 18;

11. The 1988 accident caused the plaintiff a work incapacity until 4 January 1989: Exhibit “10”, p 26;

12. Between 1989 and 1998, the plaintiff’s medical records show episodes of recurrent low back and other problems: Exhibit “B”, pp 318 – 377;

13. A workplace accident on 2 April 1991 in which the plaintiff injured his lower back, twisted his left shoulder and left ankle, for which he pursued a workmen’s compensation claim, which included problems from an L4/L5 disc bulge: Exhibit “10”, pages 37 – 40. He also had related neck and voice problems: Exhibit “B”, p 276;

14. The workers’ compensation file relating to the plaintiff’s 1991 injury was maintained by the relevant insurer until 15 April 2007, a little over 2 years before the subject injury: Exhibit “B”, pp 281 – 317. That evidence appeared to be consistent with the plaintiff’s evidence to the effect he was symptom free in his back for about 2 years before the subject accident;

15. On 30 April 1992, in the history provided to Dr Fenton, the plaintiff purportedly described his return to work about 10 months after the accident in which he fractured his lumbar vertebrae in 1988: Exhibit “10”, p 42. Whilst that period was at variance with the plaintiff’s evidence in chief where he stated that he only had a couple of weeks off work (T13.1), the plaintiff said he could not now remember how long the severe component of his back pain from that accident had lasted: T70.45 – 71.2. I consider caution requires that there be no adverse credit finding on that point based on the documentary evidence, absent explanatory evidence: Mason v Demasi [2009] NSWCA 227;

16. On 8 June 1994, Dr Stevenson noted the plaintiff “still has a fair bit of discomfort in his back although has (sic) quite good function at the moment” : Exhibit “10”, p 54;

17. On 23 December 1994, the plaintiff presented to his treating doctor, Dr Stevenson, complaining of severe exacerbation of back pain since 12 December 1994: Exhibit “10”, p 59. Around that time it was reported that he was “o’kay” if he did not strain himself, and that he cannot work for more than “few hours a day” and that he considered that he “can’t work full-time”. At that time, he was prescribed physiotherapy and swimming: Exhibit “10”, pages 60 – 61;

18. In 2003, the plaintiff was found to have experienced some problems with his voice, which were described as relating to his earlier neck injury: Exhibit “B”, p 279;

19. In 1999 the plaintiff commenced consulting chiropractors, namely Dr Shannon and others in Dr Shannon’s practice, for some thoracic and lumbar problems. Dr Shannon’s handwritten notes and records are difficult to decipher, but they clearly indicate pre-existing problems in those areas, including treatment up until 2009, as well as after the subject accident, apparently to 25 October 2013. After the subject accident the treatment was also for right shoulder and neck pains: Exhibit “B”, pp 76 – 170;

20. On 21 December 2005, Dr Stevenson arranged for an x-ray of the plaintiff’s cervical spine, which revealed narrowing of the C5/C6 disc space with minor bony encroachment of the left C5/C6 neural foramina due to the osteophyte formation and minimal facet joint spurring: Exhibit “10”, p 64: Exhibit “B”, p 245;

21. On 1 February 2006, the plaintiff underwent a CT scan of his head to investigate complaints of sensory changes and paraesthesia in his left arm: Exhibit “B”, p 242;

22. On 26 January 2007, repeat imaging of the cervical spine showed narrowing of all cervical disc spaces and “prominent uncovertebral (sic) joint processes result in encroachment upon the left 5 – 6 and right 3 – 4 and 5 – 6 neural foramina”: Exhibit “10”, p 66: Exhibit “B”, p 239;

23. On 20 April 2007 CT imaging of the plaintiff’s cervical spine was described as not excluding a ligamentous injury but multilevel degenerative changes were evident in the cervical spine. This was in the context of the plaintiff having been involved in an incident in which a heavy metal garage door came down and hit the plaintiff on the head: Exhibit “10”, pp 67 – 72: Exhibit “B”, pp 235 – 236;

1. In April / May 2007, the plaintiff’s head injury from contact with a roller door was investigated as he reportedly had a related diplopia. It was noted that this was expected to settle: Exhibit “B”, pp 268 – 273;

2. On 8 August 2007, the plaintiff was investigated for sleep apnoea: Exhibit “B”, pp 266 – 287;

3. On 19 December 2007 the plaintiff was diagnosed as having severe obstructive sleep apnoea: Exhibit “10”, p 82: Exhibit “B”, p 232.

34. The relevance of the above matters of pre-accident history is twofold. First, the defendant must take the plaintiff as he is found concerning his underlying problems and level of pre-existing functioning: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406. Secondly, the plaintiff must show that his claimed disabilities are caused by the subject accident: s 5D of the CL Act; Glen v Sullivan [2015] NSWCA 191.

Accident circumstances

35. Shortly before midday on 19 June 2009, the plaintiff was walking in the foyer of the Manly Pacific Hotel. He was intending to meet his brother-in-law at those premises by pre-arrangement. He was in the company of his sister, who was walking with him, to his left. He was visiting Australia for family reasons as he had received news of the impending death of a niece. He had travelled to Australia to provide family support in those circumstances.

36. After entering the premises through the glass front entrance doorway, the plaintiff and his sister had waited a while before turning to walk briskly towards the bar and restaurant area to look for his brother-in-law: T15 – T16. As the plaintiff did so, his vision ahead was affected by the intense glare of the bright sunlight shining through the walkway to where he was walking towards the bar / restaurant areas some distance ahead: T16.32. In those circumstances as described by the plaintiff, I accept the plaintiff’s evidence to the effect that as he was walking, he did not see the raised perspective of the decorative timber platform to his right in its relation to the marble floor of the premises.

37. In those events, the plaintiff had not seen the raised timber platform, as he was in the process of walking past that platform. As he proceeded to do so, he caught his right foot on the corner of the edge of that platform. The total height of the raise of the platform was estimated by him to be about 8 inches from floor level. As a result, he tripped over it and he fell heavily onto the floor: T15.35 – T19.25.

38. The plaintiff explained that as he had walked to the bar area in the premises, and before he fell, his path for walking was in effect guided to the right of the windows that were on his left. This was due to the placement of some tall planter pots adjacent to those windows. The placement of those pots to the plaintiff’s left had in effect formed a suggested pathway which led him to walk closer to the edge of the raised timber platform on which he had ultimately tripped, without beforehand realising that area had a raised platform in that position.

39. The plaintiff explained that when he first saw that area, he had recognised it to be a different colour, but due to the bright sunlight through the windows, he had not appreciated the difference in the height of that structure compared to the level of the floor, and he had assumed the area simply comprised a different colour of the flooring. The effect of the plaintiff’s evidence was that he was misled as to the appearance of the structure, and thought it was part of the floor without appreciating that it was in fact raised. There was no contemporaneous factual evidence called to suggest that the plaintiff’s described perceptions of the scene at the time of the fall was either improbable or unlikely.

40. After his fall, the plaintiff reported the incident to a hotel employee at the scene. The defendant’s incident report form that recorded the report of the plaintiff’s injury, stated: “The guest tripped over the step near the bar. Step not clearly visible.” That event was noted to have occurred at 13:00 hours, and the plaintiff’s report was noted to have been to a hotel employee named Rhian Adlam, who was not called as a witness: Exhibit “7”. It subsequently transpired that the defendant had a record of another person having tripped at the same place, some months earlier.

41. That earlier reported event was noted to have occurred at 3.00pm on 1 February 2009, 4 months before the plaintiff’s fall, and involved a tripping at the same place where the plaintiff had fallen: Exhibit “B”, p 495: The incident report description of that incident was as follows:

“Guest was walking past the bar towards the gaming room when she tripped upon the raised wooden flooring adjacent to the end of the bar. She then fell hitting the underside of her chin on the corner of the raised wooden flooring. (Name of Guest) reported to me that she did not see the raised flooring as she was walking as it was at ankle height and didn’t expect it to be there.”

Injuries and treatment

42. In the incident, the plaintiff first fell onto his right shoulder, and in the course of doing so, he twisted his body and then injured his left shoulder: T19.41 – T19.44. Initially he did not realise the full extent of his injuries: T20.43.

43. At the time, he was anxious to ensure he would catch his planned flight home to Canada. He therefore took painkilling medication in the following days to cope with the pain he felt in his neck, his shoulders, and the right side of his lower back. On the journey home, sitting in an aircraft for a long flight caused him to experience considerable back pain: T56.48. He experienced excruciating pain on the 18 hour flight home: T19.41 – T21.20.

44. Once he was back in Canada, he sought out “maintenance” treatment from Dr Shannon, his regular chiropractor, whom he was accustomed to seeing for such services: T22.36 – T22.45. Thereafter, he continued with that treatment about three times per week for some months: T23.24.

45. In Canada, the plaintiff saw an orthopaedic surgeon who undertook investigation and treatment to his right shoulder, which involved the injection of a dye for imaging purposes: T23.50. He had no further active intervention beyond those investigations.

46. The plaintiff continues to see chiropractors for spinal manipulations. He understands those treatments serve to assist him to hold his spine in correct alignment. He feels the need for that treatment due to the aggravating effects of his injuries which he experiences, especially during cold weather conditions: T24.1 – T25.2.

Medical and allied assessments and reviews

47. After the subject accident, when he returned to Canada, the plaintiff has undergone a number of medical consultations, investigations and reviews. These are set out in the paragraphs that follow.

48. On 28 June 2009 the plaintiff consulted a primary care clinic in Canada for his accident-related problems: Exhibit “B”, p 172. The plaintiff continued with that professional contact until 30 January 2014: Exhibit “B”, pp 172 – 177.

49. On 7 August 2009, imaging of the cervical spine revealed a moderately narrowed C5/6 disc with slight retrolisthesis of C5 onto C6 consistent with disc degeneration. The C5/6 foramen was markedly narrowed and the C6/7 foramen was mildly narrowed, along with mild narrowing at C3/4 and C5/6 due to encroaching osteophytes: Exhibit “10”, p 84.

50. On 7 August 2009, imaging of the plaintiff’s right shoulder showed calcification / tendonitis of the supraspinatus mechanism, degenerative arthropathy of the acromioclavicular joint, and degenerative spurring of the glenoid process: Exhibit “10”, p 85.

51. On 19 July 2010, imaging of the lumbar spine showed degenerative changes along the margins of the sacro-iliac joints, the presence of moderate to severe facet joint arthrosis throughout the lumbar spine: Exhibit “10”, p 86.

52. On 19 July 2010, imaging of the plaintiff’s pelvis showed slight axial joint narrowing in both hips, degenerative spurring in both acetabula, and degenerative changes in the lumbar spine: Exhibit “10”, p 95.

53. On 19 July 2010, the plaintiff underwent further imaging of the lumbar spine which revealed findings consistent with previous reports, including mild compression fractures at L1/L2 and multilevel facet joint arthrodesis and degenerative changes in the left hip and lumbar spine generally: Exhibit “10”, pp 97 – 98: Exhibit “B”, pp 62 – 63.

54. On 25 September 2010, the plaintiff was admitted to an emergency department with a 24 hour history of lower back pain and lateral tingling of the right leg. On that occasion, sciatica was diagnosed. It was also noted that the plaintiff had seen the chiropractor a few days earlier and then spent the next day or so in bed: Exhibit “10”, p 101: Exhibit “B”, pp 185 – 187.

55. On 27 September 2010, further imaging of the lumbar spine was undertaken which showed findings consistent with earlier reported findings but the phenomenon of a concentric central disc bulge at L4-5 was also described: Exhibit “10”, p 104.

56. On 3 December 2010, the plaintiff sought therapeutic massage treatment for his chronic low back pain, sacral pain and hip pain with associated restriction of movement. That treatment proceeded over a period of 11 weeks: Exhibit “B”, pp 60 – 61.

57. Between 3 December 2010 and 25 March 2011 the notes made by the massage therapist who treated the plaintiff, indicate the plaintiff was troubled by thoracic, lumbar, shoulder and some neck problems in that time: Exhibit “B”, pp 64 – 74.

58. On 18 November 2011, the plaintiff underwent further imaging of his lumbar spine which resulted in similar reports of the previous studies: Exhibit “10”, pp 105 – 106.

59. On 18 May 2013, the plaintiff underwent a further imaging study of his left shoulder which was reported upon in similar terms to the previous study: Exhibit “10”, pp 107 – 108.

60. On 30 May 2013, imaging of the plaintiff’s left shoulder was reported as being abnormal, showing moderate degenerative narrowing of the left acromioclavicular joint with early osteophytic spurs and mild degenerative narrowing of the gleno-humeral joint: Exhibit “10”, pp 87 – 88: Exhibit “B”, p 182.

61. On 13 June 2013, the plaintiff underwent an arthrogram of the left shoulder which revealed that there was no evidence of a rotator cuff tear: Exhibit “10”, p 110: Exhibit “B”, p 183, p 190.

62. On 8 September 2013, the plaintiff underwent CT scans of his thoracic and lumbar spines. These were reported as showing multi-level diffuse disc degeneration involving L3-4 to L5-S1, old healed compression fractures at L1 and L2 and foraminal narrowing at L4-5 to the right, with facet joint arthrosis at several levels: Exhibit “10”, pp 111 – 112: Exhibit “B”, pp 188 – 189.

63. The records of the chiropractor, whom the plaintiff had consulted reveals a pattern of pre and post-accident consultation. Those notes record 1 consultation in 2005, 3 consultations in 2006, no consultations in 2007, 5 consultations in 2008, and 2 in 2009 before the subject accident, namely on 27 April 2009 and 5 May 2009: Exhibit “10”, p 115. Those notations were not inconsistent with the plaintiff’s claim of having had periodic chiropractic maintenance treatments over time.

64. The notes also show that after the subject accident, the consultations with chiropractors were for a time more numerous and more frequent: Exhibit “10”, pp 113 – 115.

65. On 1 April 2015, the chiropractor who has treated the plaintiff over the preceding 5 years prepared a report that recorded a marked change in the plaintiff’s physical status in that time: Exhibit “B”, pp 282 – 283. That report chronicled “unchanged chronic progressive osteoarthritis”: Exhibit “B”, p 282.

66. That statement is difficult to interpret, and must be read cautiously, in view of the expert evidence of Dr Davis to the effect that there is a difference between medical and chiropractic nomenclature: T85.35 – T86.27. The report went on to assert that the traumatic injury, which I infer from the context to refer to the subject accident, caused the plaintiff’s joint deterioration to proceed more rapidly and more painfully, which I interpret to mean that as a result of the subject accident, the plaintiff was experiencing aggravation of pre-existing degenerative changes.

67. On 16 April 2012, at the request of his solicitors, the plaintiff was assessed by Dr John Davis, an occupational physician. The examination took place in Los Angeles. Dr Davis’ resultant report dated 23 April 2012 was incompletely copied in the plaintiff’s tender bundle: Exhibit “B”, pp 135 – 137. The whole report fortuitously appears, unindexed, at pages 8 to 14 of Exhibit “B”.

68. In that report, Dr Davis recorded the following statements under the topic heading of the plaintiff’s prior medical history:

“He denies any knowledge of suffering with any general health difficulties and has not suffered with any serious health problems in the past.

He has from time to time suffered some minor symptoms in his lower back although had not suffered with any significant symptoms for many years prior to the accident which forms the basis of this report.”

69. Plainly, in light of the documentary evidence reviewed at paragraphs [26] to [34] above, that recorded history was understated, and therefore incorrect. In view of the fact that Dr Davis has recorded a summary rather than a verbatim account, I consider that no credit consequences turn on that matter: Mason v Demasi [2009] NSWCA 227.

70. After reviewing the plaintiff’s history of injury in the subject accident, and his post-injury complaints, Dr Davis recorded his findings on his examination of the plaintiff as showing some palpable right-sided cervical spine muscle guarding, elevation of the right shoulder due to spasm of the trapezius muscles, some wasting of the left shoulder and flattening of the deltoid contour. He also noticed palpable spasm in the lumbar spine on the right, and tenderness over the L4/L5 supraspinous ligaments, and the right lower facet and right sacro-iliac joint, with some restricted movements.

71. Dr Davis considered that in the subject fall, which was described as having been heavy, the plaintiff had suffered significant trauma to his upper and lower spinal regions and to both of his shoulders: Exhibit “B”, p 12.

72. In his 2012 report, Dr Davis considered that the plaintiff’s chiropractic treatment has been entirely appropriate: Exhibit “B”, p 13.

73. On the basis of his 2012 examination of the plaintiff, Dr Davis stated that the plaintiff had restrictions regarding his ability to lift, carry heavy goods, undertake repetitive or sustained flexion, work in confined or awkward spaces, comfortably travel for extended periods, and he foreshadowed restrictions in social and sporting activities: Exhibit “B”, p 13.

74. The opinions of Dr Davis on damages issues concerning domestic assistance and future treatment will be analysed separately in connection with Issue 5.

75. On 6 July 2015, Dr Davis provided a supplementary report in which he stated that the injuries from the subject fall, which aggravated “pre-existing asymptomatic significant degenerative changes” in the zygapophyseal joints, both shoulders, cervical spine and lower spine. He stated that those matters affected the plaintiff’s ability to carry out property maintenance tasks. I do not regard the opinion of Dr Davis suggesting 16 – 18 hours of such assistance to be prescriptive of that need: Exhibit “B”, p 385. Dr Davis had not been asked to re-examine the plaintiff before issuing that supplementary report.

76. Dr Davis gave oral evidence at the hearing: T80 – T98. That evidence indicated the plaintiff had not provided Dr Davis with the detailed medical history of prior injuries that had been made available to Dr O’Farrell who had examined the plaintiff on behalf of the defendant: T82.46.

77. However, that does not appear to be of significance because, before giving his oral evidence, Dr Davis briefly reviewed “that” history: T82.50. Before giving evidence, he had also reviewed the plaintiff’s prior medical records: T83.28. He stated that the history did not cause him to change his opinion as there was nothing in the plaintiff’s prior injury history that was proximate to the accident that made him change his views: T83.1 – T83.12.

78. Dr Davis elaborated on that position, agreeing that it was possible that the plaintiff’s pre-existing conditions had been asymptomatic for 2 years prior to the accident: T83.18. Dr Davis stated that the (radiological) evidence of degenerative changes in the plaintiff’s spine from the 1980’s did not necessarily equate to symptoms in the spine: T83.50. I accept his evidence in that regard.

79. Dr Davis reviewed the history of what was described as chiropractic maintenance adjustments or maintenance therapy or treatment to the spine, and expressed the view it was poor practice: T85.14. He later added that it was not an accepted medical treatment: T89.9. Dr Davis identified the order of causal importance of the plaintiff’s post-accident problems as being predominantly in the lumbar spine, the neck and the left shoulder: T87.21 – T87.40.

80. Dr Davis was unable to express a concluded view of the plaintiff’s need for chiropractic maintenance treatment in view of the limited history from the plaintiff: T88.43 – T89.13.

81. On the issue of the cause of the plaintiff’s lumbar problems, in answer to questions put to him in cross-examination, Dr Davis agreed that the plaintiff’s prior history of lumbar problems, as evidenced by an x-ray report dated 12 April 1990, the plaintiff’s lumbar spine was in a state that made it more vulnerable than usual to the effects of trauma, irrespective of whether there were pre-injury symptoms in the pre-accident period: T89.16 – T89.33. Dr Davis went on to explain that although signs of degenerative change tend to increase or progress with age, this does not necessarily mean that symptoms would arise: T89.35 – T89.50.

82. Dr Davis agreed that relatively minor activities such as sneezing, twisting, or jarring from using a ride-on lawnmower, horse riding, or using gardening tools, would be sufficient to cause the onset of back pain: T90.4 – T90.49.

83. Dr Davis confirmed that based on the plaintiff’s prior medical history, the fall in 2009 caused the plaintiff to suffer an aggravation or exacerbation of his pre-existing back problems: T92.5 – T92.8.

84. In answer to questions asked of him in cross-examination, Dr Davis was not prepared to agree that on the balance of probabilities the plaintiff would have suffered low back pain in the period between 2009 and the hearing in any event, the underlying assumption being absent additional traumas: T92.25 – T92.29.

85. Dr Davis explained that the superimposition of trauma on a spine with underlying vulnerability such as was the plaintiff’s position, results in further trauma that has an ongoing effect so that the condition of the spine does not revert to its pre-aggravation condition because a different level of damage occurs: T92.33 – T93.18.

86. Dr Davis obtained a different impression of the effect of the plaintiff’s injuries in comparison to Dr O’Farrell: T93.34. Dr Davis explained it was medically feasible that the previous traumas the plaintiff had suffered to his spine had healed, leaving him asymptomatic in that area by the time of the subject accident: T93.33 – T94.9. In that regard, Dr Davis was not prepared to agree that by the plaintiff’s present age of 72 years, it was more probable than not the plaintiff would have had back symptoms without the trauma of the accident. This was because of the wide scope for variation in the occurrence and the severity of such matters: T95.6 – T95.36.

Disabilities

87. The plaintiff still continues to have considerable pain and discomfort in his right shoulder which is aggravated by cold weather: T24.35 – T24.47. His shoulder movements are restricted: T27.5. He also experiences spasms in his low back in cold weather: T24.50 – T25.2. Activities such as sitting on a ride-on lawnmower are problematic for him: T26.34 – T26.42. He no longer pursues his recreational interest in ballroom dancing: T27.31. As a consequence of his injuries, he no longer carries out a wide range of domestic tasks that he would otherwise have performed without assistance: T32.21 – T33.22.

87. I accept the evidence of the plaintiff that whilst in his previously active life he had a number of accidents (T64.15) his symptoms from those accidents had healed by the time of the fall in the defendant’s premises in 2009: T70.5. In that regard, I also accept the plaintiff’s evidence that he had not experienced back problems in the two years before the subject accident: T72.9. Having regard to the uncontradicted evidence of Dr Davis, the plaintiff’s evidence to that effect cited at paragraphs [84] and [86] above, was not inherently improbable.

88. I accept that the plaintiff takes painkilling medications for his symptoms: T73.25 – T74.13. Whilst I accept that the plaintiff continues to pursue maintenance chiropractic treatment (T110.26; T127.7 – T127.31), on the evidence of Dr Davis as cited at paragraph [79] above, the advisability and benefits of such treatments appear to be doubtful.

89. Whilst I also accept that after the subject accident the plaintiff purchased a property in Arizona to help him to manage his aches and pains by moving to a warmer climate in the winter months (T112.11), the significance of that move to the assessment of damages requires further consideration in connection with Issue 5.

Opinions of liability experts

91. The expert evidence on the liability issues was in the form of reports and oral evidence, where the respective experts were sworn at the same time. The concurrent evidence of Mr Burn and Dr Cooke appears at T99 – T108.

92. Beforehand, Mr Burn provided a report dated 27 March 2013. Dr Cooke’s report dated 6 June 2013 commented on Mr Burn’s report. Mr Burn then provided a supplementary report dated 8 July 2013. That was then followed by a supplementary report from Dr Cooke dated 21 March 2014. The subsequent joint memorandum of those experts, which was arranged during the course of the trial, was dated 27 July 2015: Exhibit “D”.

93. Each of the expert witnesses agreed that Exhibit “D” fairly summarised, although it did not supplant, their earlier reports: T108.15 – T108.30.

94. In the paragraphs that follow, the respective reports of the experts are reviewed before considering their oral evidence and identifying the conclusions reached concerning their opinions.

95. At this point it becomes convenient, to identify the encapsulated opinions of the experts as embodied in their joint memorandum comprising Exhibit “D”: T98.32.

96. In that memorandum, the experts were asked to summarise their opposing views as to the evidence of negligence, or otherwise, as they had entered into that debate in a more detailed way in their respective reports.

97. In essence, Mr Burn was of the opinion that the variable lighting in the premises, and the high level of ambient light negated the LED edge lighting under the perimeter lip of the platform, and that the vertical raise of the platform was not readily noticeable on approach even though the platform was of a darker colour. He also considered that the visual cues, being the location of sculptures on the platform and the slotted timber wall in the background, drew visual attention away from the raised edge of the platform.

98. In contrast, in essence, Dr Cooke considered that the level and the quality of lighting was more than adequate and provided optimum conditions at the transition from the exterior to the interior within the foyer of the premises, and that the platform was within the field of vision of the plaintiff’s direction of approach, with high levels of illumination and strong visual cues to the existence of, and the position of, the platform.

99. In arriving at his opinions as summarised above, Dr Cooke made the assumption that there was “no adverse shading, glare or inappropriately pronounced differences between external and internal levels of illuminance”: Exhibit “D”, p 1. That assumption was contrary to the evidence of the plaintiff, which I have accepted.

100. The respective opinions in essence required the resolution of the factual matters that underpinned the foundations of those opinions.

101. Before reconciling the opposing expert opinions and reaching conclusions on which aspects of the expert opinions should be preferred, and why, it is necessary to engage with and analyse the respective reports of the experts.

Reports of liability experts

102. Mr Burn, a consultant engineer, prepared two reports before giving his oral evidence. Mr Burn’s first report, which was dated 27 March 2013, followed his inspection of the site of the accident: Exhibit “B”, pp 387 – 400.

103. On his inspection, Mr Burn observed that on entering the premises, pedestrians would walk with the light behind them, and whilst entering, they would walk into varying degrees of shadow, until the eyes adjusted to the conditions: Exhibit “B”, pp 388 – 390. Given that the plaintiff and his sister entered the premises and waited for some minutes before heading for the restaurant / bar area, I do not consider that an adjustment problem of the kind identified by Mr Burn relevantly arises in this case.

104. Mr Burn measured the raised platform on which the plaintiff tripped as standing 55mm off the floor, 151mm in height, 1770mm wide and 2625mm long, with a timber backdrop. He described the structure as being approximately 7m from the automatic entrance doors located in a direct route from the restaurant entrance to a bar and meeting area: Exhibit “B”, p 39.

105. Mr Burn described the lighting in the area at the time of his inspection as comprising 3 down lights at the rear and the centre of the platform, some bell shaped light fittings hanging from the ceiling in the foyer, a lamp located on the fixture, and a series of LED lights recessed under the fixture that illuminated the floor below, which when viewed from a distance, did not make the edge of the platform visually obvious as being a stepped structure. He said this was due to the reflected light source: Exhibit “B”, p 392.

106. Mr Burn’s opinion was to the effect that in those circumstances, the raised timber platform appeared as a visual extension of the timber floor surface used in the bar area, and as such it was not in the range of the plaintiff’s visual perception as he approached the corner of that structure: Exhibit “B”, p 392. I accept that perception was one that was available.

107. Mr Burn noted that a previous tripping incident had occurred at the site of the plaintiff’s fall, which he considered therefore required an appropriate risk assessment be undertaken by the defendant to identify hazards presented by the platform so that remedial steps could have been undertaken aimed at preventing further trips: Exhibit “B”, p 392.

108. In that regard, he identified a series of requirements of the Occupational Health and Safety Act 2000: Exhibit “B”, pp 392 – 394. There was no evidence as to whether the defendant had in fact undertaken any such risk assessment.

109. On his consideration, Mr Burn concluded there had been a relevant safety failure in that the plaintiff’s fall could have been avoided by not locating the platform and its associated artwork in the direct route of pedestrian traffic, or by removing that platform from the foyer, or rearranging sculptures or potted plants in the area in a manner that prevented people from attempting access to the bar area by walking near the edge of the low platform: Exhibit “B”, p 394. That “preventability” was rejected by Dr Cooke for reasons that will be examined in due course.

110. On 6 June 2013, at the request of the solicitor for the defendant, Dr Cooke, who was amongst other things, a consultant architect, provided a report commenting on the plaintiff’s claim of negligence. He also commented upon the opinion of the plaintiff’s expert Mr Burn. In that report Dr Cooke rejected the proposition that there was any substance to the plaintiff’s allegations of negligence: Exhibit “1”. For that purpose, Dr Cooke inspected the premises at 12.45pm on 6 June 2013. Dr Cooke took photographs of the area in question, and those photographs were appended to his report.

111. Dr Cooke’s analysis seems to have been based on the assumption that the plaintiff was “hurrying” when traversing the foyer to the point where he fell: Exhibit “1”, p 10. That assumption remains unproven. I do not accept that the plaintiff’s description of himself as having walked at a brisk pace necessarily equates to him “hurrying”, as was assumed by Dr Cooke.

112. Dr Cooke’s approach to the liability analysis was to use instruments to objectively measure light levels that were apparent on the day of his inspection, in conjunction with his own visual appraisal, to assess aspects such as glare, shadows, reflectivity of surfaces and large contrasts in lighting levels likely to result in debilitating adaptation affecting the ability of pedestrians to see when moving from bright external daylight to a dimly lit interior: Exhibit “1”, p 5, par 23.

113. At paragraphs 24 and 25 of his report, Dr Cooke stated:

“24   Based on my visual appraisal of the lighting under conditions not relevantly different from those that would have existed at the time of the incident, my assessment is that there is no shading of any significance within the foyer. The white marble floor of the foyer is highly reflective and the foyer is brightly lit. The primary source of illumination at the entrance area is daylight entering the main foyer via the intermediate lobby through the full height and full width glazing. The result is that there is no significant contrast in lighting levels causing adaptation problems for pedestrians (such as the plaintiff) entering the foyer from outside. Pedestrians entering the foyer do not have to adjust their eyesight from bright external daylight to the "dimmer" lighting of the foyer as asserted by Mr Burn. They do not enter the foyer with the light behind them as asserted by Mr Burn. The plaintiff was not "walking into varying degrees of shadow" as asserted by Mr Burn on page 3. There is an insufficient difference between the external and internal levels of illuminance to create the shadows suggested by Mr Burn. In addition to daylight entering through the intermediate lobby, exterior light reaches the foyer from both sides (from a restaurant on the north side and the bar area on the south side, with full height external glass walls), further reducing the possibility of any significant shading as suggested by Mr Burn.

25   I measured the level of illuminance within the porte cochere at the outer face of the doorway into the intermediate lobby to be 353 lux (at 12:50 pm). Within the intermediate lobby, the level of illuminance at the door face was found to be 263 lux. On the face of the raised timber platform on which the plaintiff is alleged to have tripped, the level of illuminace [sic] was measured at 237 lux. The level of illuminance on the top surface of the platform at the outer corner was 226 lux. The level of illuminance was therefore found to be uniformly high and with little variation on the approaches to the foyer from the exterior and within the foyer.”

114. A difficulty with Dr Cooke’s analysis emerges immediately from paragraph 24 of his report as cited above where he stated that the lighting conditions were not relevantly different from those that existed at the time of the incident.

115. There was nothing in the evidence that supported Dr Cooke’s assumptions in that regard. In particular, the plaintiff said there was bright sun with intense glare. In contrast, Dr Cooke’s examination of the premises involved sky that was covered with light cloud, although the day was bright: Exhibit “1”, p 4, par 17. There was no evidence to support the unfounded opinion of Dr Cooke to the effect that the conditions that prevailed at the time of his inspection were similar to those which applied to the time of the incident. For a start, commonsense dictates that sun angles at 12 noon and 12.45pm would have been different, and Dr Cooke’s description of the clouded sky was very different to that of the plaintiff. As there was no evidence as to the different sun angles taken on 6 June and 19 June, no conclusions can be drawn on that point.

116. Significantly, in his oral evidence, Dr Cooke shifted his previous assumption of light conditions from clouded sky to “very bright daylight”: T100.39. That description seemed at odds with the sky being covered with light cloud, as stated in the cited portion of his report.

117. That divergence of assumptions is of some significance given that the hotel foyer relied for much of its illumination on light transmitted from outside. The light from the bright intense glare of sunlight as described by the plaintiff, would have been very different to the quality of the light emanating from a sky covered with light cloud. This caused me to doubt the reliability of Dr Cooke’s analysis.

118. In any event, in his report, Dr Cooke acknowledged that it was difficult to analyse glare “entirely objectively”: Exhibit “1”, p 7, par 28.

119. On the basis of his visual inspection and his measurements taken at the scene, Dr Cooke concluded that the arrangement of daylight and artificial light sources on the premises avoided any debilitating glare and adaptation effects, and he considered “there is no shadowing of any significance”: Exhibit “1”, p 7, par 29. As that opinion involves a subjective element, it requires evaluation alongside the description of the glare and its effect as provided by the plaintiff. The fact that Dr Cooke expressed that view is not sufficient to displace the plaintiff’s factual observations.

120. After pointing out an apparent word processing or textual error at p 3 of Mr Burn’s report, Dr Cooke expressed his disagreement with Mr Burn’s opinion (at p 5 par (d) of his report) to the effect that the platform in question was not in the plaintiff’s visual perception as he approached the front corner of the platform: Exhibit “1”, p 7, par 30. His disagreement with Mr Burn was based on Mr Burn’s diagram of the assumed cone of vision that would have applied at the time. Dr Cooke thought Mr Burn’s assumption related to someone reading a sign at close quarters and not to the visual perception of pedestrians entering and walking through a hotel foyer: Exhibit “1”, p 8, par 30.

121. I consider that the cone of vision analysis adopted in the expert evidence to be of limited assistance and not determinative of the issues because such analyses seem to involve static conditions, and were not akin to the dynamic process of making visual observations whilst walking in the face of a glare source from the direction of the windows in the restaurant area ahead of the plaintiff on the day in question. This is particularly so in view of what I consider to be Dr Cooke’s qualifying comment that glare is difficult to analyse “entirely objectively”, as cited at paragraph [118] above.

122. Dr Cooke’s opinions draw upon research concerning locomotion amongst obstacles and other irregularities where the vision is “cast down” to look at the terrain: Exhibit “1”, p 8, par 38.

123. I consider that theoretical research to be of limited assistance in the analysis of the facts of this case where, as I have accepted, the plaintiff’s visual perception of the floor area in the vicinity of where he was walking was the subject of influence from the intense glare which he described, and which interfered with that perception.

124. Dr Cooke also argued that Mr Burn’s analysis in his Figure 5 “is not natural behaviour for a person taking reasonable care”: Exhibit “1”, p 9, par 34. The opinion within that argument must be viewed in the context of the presence of glare that interfered with the plaintiff’s ability to take in the visual cues in the area in which he was walking, and where it was not expected that he would encounter obstacles such as a trip hazard of the kind he actually encountered. Also, it seems to me that Dr Cooke’s argument was based on his incorrect assumption that the plaintiff was “hurrying”, which he was not.

125. Dr Cooke’s opinion was that the platform was not on main direct routes within the foyer, and that direct access was provided to the bar and restaurant at the ends of the foyer. He concluded the platform on which the sculpture stood was to the side of the carpeted area at the side of the foyer, and that visual cues pointing to the existence of the platform were sufficient. Consistent with those views, he did not consider it was necessary to re-arrange any sculptures or potted plants on the platform: Exhibit “1”, p 11, par 39. He argued the platform was obvious and clearly visible on an approach from the entrance door: Exhibit “1”, pp 9 – 10, par 35.

126. In my view, the difficulty with Dr Cooke’s analysis of the raised platform not being on a main access route is that there were no defined access routes within the foyer, and in such an open area, pedestrian traffic could be expected to adopt a variety of angled approaches to the restaurant and bar areas, dependent upon prevailing pedestrian traffic or guest conditions, including the presence of pot plants or other persons in the foyer.

127. In those circumstances, the placement of a raised platform such as the one encountered by the plaintiff, that could pose a trip hazard, created a foreseeably dangerous condition of the premises that could result in a person tripping and falling, as occurred with the plaintiff, and with someone else some few months earlier. It also appears from Dr Cooke’s report dated 27 March 2013 that he was instructed that someone else had fallen on a different part of that same platform 7 months after the plaintiff’s fall, namely on 13 December 2010: Exhibit “1”, p 1, par 7. In my view, all of those occurrences, when taken together, tend to undermine the reasonableness of Dr Cooke’s opinion in that regard.

128. Acceptance or rejection of Dr Cooke’s disagreement with Mr Burn’s opinion (as summarised in Dr Cooke’s materials at Exhibit “1”, p 9, par 35) is dependent upon a factual analysis.

129. Dr Cooke’s disagreement with the views of Mr Burn proceeded as follows:

1. Dr Cooke maintained the opinion that the presence of the timber platform was obvious. Whilst that opinion was available for him to express on the occasion he visited the premises four years after the event, that was not the experience of the plaintiff, whose perception of the layout of the floor area was affected by glare on the day of the accident. Those conditions of glare have some bearing on the plaintiff’s ability to pick up “the strong visual cues” of contrast between the timber platform and the marble floor. I accept that in the circumstances of the prevailing lighting on the day, the plaintiff was misled into perceiving the platform to be part of the floor, albeit of a different colouring. I do not accept Dr Cooke’s argument to the contrary;

2. Dr Cooke argued that the LED lights reflected on the marble floor were clearly spaced points of light that were not like reflected ceiling light. Whilst that observation may well have been open to Dr Cooke on the day of his inspection, unlike the position that faced the plaintiff on the day of the incident, that observation was made without the visual hindrance posed by the intense prevailing glare that the plaintiff had experienced;

3. Dr Cooke’s argument that there was a strong visual cue to the existence of the platform created by the contrast of the white marble and the darker timber platform surface, and the lighting from the base, was made without the hindrance of the glare that had affected the plaintiff’s view of the area on the day of the accident;

4. Dr Cooke argued the platform was clearly visible on approach from a considerable distance, arguing there was an expectation for the raised platform to be encountered by pedestrian traffic en route. That statement also has to be considered and read subject to the plaintiff’s observation that his vision of the area was affected by the presence of intense glare. There is no evidence that the prevailing conditions that faced the plaintiff at the time he fell, were the equivalent of those that faced Dr Cooke, when he inspected the premises four years later. Furthermore, the different descriptions of bright sun, as opposed to clouded sky suggests otherwise;

1. Dr Cooke argued that the raised timber platform is “low on the floor” and the sculpture on it was higher, and the structure therefore did not create a trip hazard: Exhibit “1”, p 10, par 35. I do not agree with Dr Cooke’s explanation in that regard. This is because although the platform in question was low on the floor, the sculptured item which rested on that platform was likely to attract the visual attention of passers-by such as the plaintiff, thereby taking visual attention away from the floor, and therefore, the juxtaposition of the raised platform to the floor.

130. Mr Burn provided a supplementary report dated 8 July 2013 which commented upon the report of Dr Cooke, and in which he expressed his disagreement with the opinions expressed in the report of Dr Cooke: Exhibit “B”, pp 401 – 405.

131. Mr Burn disagreed with the opinion expressed by Dr Cooke at paragraph 3 of his report dated 6 June 2013 to the effect that the platform on which the plaintiff tripped was obvious to any person exercising a proper lookout. Whilst experts can proffer such views, ultimately, that is a question of fact to be determined in connection with the consideration of Issues 1 and 2.

132. Mr Burn pointed to a 36% variation in the light meter readings relied upon by Dr Cooke for his conclusion and considered that variation to be significant: Exhibit “B”, p 402.

133. Mr Burn disagreed with Dr Cooke’s assessment of the location and path of travel analysis that had been earlier identified by Mr Burn in his first report. In doing so, Mr Burn again drew attention to the appearance of the platform as an extension of the timber floor of the bar area, and what I interpret from his report to be the deceptive appearance of the left edge of the platform as it relates to the marble floor below, and the deceptive appearance of the sculpture on the platform which could easily be interpreted as sitting on the timber floor surface so that persons walking in the vicinity and looking forward, would not see a raised platform at their feet: Exhibit “B”, pp 402 – 403.

134. Mr Burn considered the “perception” argument raised by Dr Cooke at paragraphs 32 and 33 of his report dated 6 June 2013, and argued that there were degrees of lesser clarity in the “zone of perception”. I considered the debate about perception to be somewhat artificial given that there was scope for individual differences in degrees of perception and responses to changed lighting conditions, especially in the presence of intense glare.

135. Mr Burn took issue with Dr Cooke’s statement at paragraph 34 of his report dated 6 June 2013, which was in the form of a submission, in which he stated that the plaintiff ought to have seen the raised platform. In that regard, Mr Burn stated that when the platform was viewed from a distance it was not “obvious” as stated by Dr Cooke, especially where the person in question had no reason to take a further look when approaching the platform, not having earlier perceived the area to have comprised a raised platform: Exhibit “B”, p 403. In my view, the conditions of glare, as described by the plaintiff, render Dr Cooke’s analysis somewhat artificial and theoretical.

136. Mr Burn further rejected Dr Cooke’s “obvious” formulation at paragraph 35 of his report of 6 June 2013 based on visual cues, arguing that the change in colour of the raised area does not make the difference in level obvious, particularly having regard to the vertical timber slats at the back of the platform and the level of illumination, when viewed from a distance: Exhibit “B”, p 404.

137. I now turn to identify and analyse the salient points of the oral evidence of the respective experts.

Oral evidence of the experts

138. The standout observation in the oral evidence of Dr Cooke was his assumption of the “very bright daylight outside” (T100.39) which seemed at variance with his recorded contemporaneous observation of clouded sky as stated in his first report. The basis of Dr Cooke’s shift in the assumptions he adopted was unsourced, and unexplained.

139. That is a matter of some significance when it is noted that his instructions were that there was similar daylight at the time of the accident and the time of his inspection: T100.47. The two comments cannot stand together. His assumptions as to the absence of cloud cover and very bright daylight at the time of the accident came from his instructions: T101.4. Those instructions accorded with the plaintiff’s evidence, which were not supported by Dr Cooke’s clouded sky observations.

140. At the time of Dr Cooke’s inspection, he said that he saw no source of glare: T102.29. Presumably the clouded sky had some influence on that observation.

141. Dr Cooke agreed that in some conditions there could be glare from reflected light through glazed windows, and from a polished floor. He did not make such an observation, although he saw a “very high level of daylight”: T103.3 – T103.14; T103.34.

142. I consider that the cloud covered sky was a very likely factor that resulted in Dr Cooke not seeing reflected light at that time: T103.23.

143. Whilst Dr Cooke satisfied himself that on the occasion of his inspection, there was no glare from any source, he agreed he could not rule out the possibility that a particular person with different eyesight might experience a different condition: T103.42 – T103.44; T104.6. That opinion merely serves to emphasise the subjective nature of the observations that he was recounting, as he stated in his first report: Exhibit “1”, p 7, par 28.

144. In that regard, Dr Cooke avoided answering the question as to whether there was any aspect of his expertise that enabled him to say that the plaintiff’s subjective experience (of glare) was an unlikely description: T103.35 – T103.44. His answer was to the effect that on his inspection, he saw no glare, which was not the question he was asked to address.

145. Dr Cooke was asked to explain whether, in making the statement that the factors of lighting, contrast and reflection, affect visual cues, he made allowance for the possibility that (the plaintiff’s) field of vision could have been disturbed by glare or reflected shadow: T104.22 – T104.25.

146. In answering that question, he said glare was a factor that he took into account as a possibility, but he stated that he was satisfied there was no glare (which had affected the plaintiff): T104.33.

147. I found that answer by Dr Cooke to be unpersuasive because he did not indicate a sound factual basis for that view. As a result, I consider his opinion on that issue should be afforded very little weight: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87]; UCPR Sch 7, cl 5(1)(c).

148. In his oral evidence, Dr Cooke stated the level of lighting was an important fact in the observability of the different levels of the floor and platform: T105.30 – T105.38.

149. In my view, that was a matter of some significance, because in that context, Mr Burn responded to a question on the observability of the platform being different dependent upon whether the day was bright or dim, answering affirmatively: T105.7 – T105.11. Mr Burn had seen a greater degree of observability of the platform on a dim day in conjunction with the LED lighting which made the platform very clear: T105.3 – T105.5. Conversely, he stated that on a bright day, the white LED lights would tend to become less apparent to a casual observer: T105.15.

150. Dr Cooke was given the opportunity to ask Mr Burn questions on those matters and he declined that opportunity: T105.22 – T105.32.

151. With a qualification, Dr Cooke agreed with the proposition that from the position of the pot plants in the foyer on the day of the plaintiff’s fall, the tendency of pedestrian traffic would have been to possibly move towards the right (towards the platform). The qualification he adopted concerned the variability of the angle of approach: T106.41 – T107.8.

152. The only matter upon which Mr Burn was cross-examined concerned the time taken for visual adjustment to take place in relation to lighting conditions on entering the foyer: T107.15 – T107.43. Nothing turns on that topic because the plaintiff had been in the premises for about 10 minutes before going to the bar area (T15.47) and Mr Burn stated that his eyesight would have largely adjusted to the conditions inside the foyer after 10 – 15 minutes: T107.43. There was no dispute on that issue.

153. Adjustment to inside conditions was not the issue. Rather it was the glare that interfered with the plaintiff’s visual observations that became the critical factual issue which influenced the events.

Conclusions on expert evidence

154. For the reasons outlined at paragraphs [91] to [153] above, I found Dr Cooke’s opinions unpersuasive, and without adequate factual foundations.

155. In contrast, the evidence of Mr Burn was minimally challenged in cross-examination. I consider his opinions were soundly based, reasoned and I found them persuasive, as explained in the preceding paragraphs. I have therefore preferred the opinions of Mr Burn to those of Dr Cooke, as critically evaluated above.

Issue 1 – Whether obvious risk : s 5F and s 5G of the CL Act

156. The defendant argued that the raised timber platform was an obvious risk within the meaning of s 5F and s 5G of the CL Act: Paragraph 10 of the amended defence filed on 13 August 2014.

157. Section 5F of the CL Act provides:

5F Meaning of "obvious risk"

(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

158. Section 5G of the CL Act provides:

5G Injured persons presumed to be aware of obvious risks

(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

159. The defendant submitted that it owed no duty to the plaintiff to warn him of the risk of tripping over the raised platform because the risk of doing so was an obvious one which was clearly apparent or easily recognised to a hypothetical reasonable person in the circumstances of the plaintiff: Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394, at [23] – [24].

160. In my view, the hypothetical reasonable person in the circumstances the plaintiff found himself in, would not have readily seen the raised timber platform on which the plaintiff tripped because of the particular circumstances where the intense presence of glare from bright sunlight outside was affecting the plaintiff’s view of the area towards where he was walking, and which affected the perspective view of the area ahead, so that it was not apparent that the area comprised a raised platform that posed a potential trip hazard.

161. That raised platform structure had also been the location of a previous fall by another guest in the defendant's hotel some 4 months earlier. In those circumstances, I do not accept the proposition that the defendant had no duty to warn patrons of the risk. This is because that earlier incident had been reported to the staff of the hotel, who had made a formal risk management record of the occurrence.

162. It is therefore plain that at the time of the plaintiff's injury, the defendant was aware, and ought to have been aware, that there was a risk of tripping at that place within its hotel premises where persons such as the plaintiff were likely to be walking within the premises.

163. The defendant argued that even though the day of the fall was the first time the plaintiff had visited the hotel, because of the walking route the plaintiff had chosen to take, he had sufficient time whilst taking that route, to see the raised platform as he walked towards it.

164. I do not accept that submission because it ignores the evidence of the plaintiff, which I accept, that his view of the area in question was affected by the intense glare coming from the windows from the restaurant and bar area so that he was unable to see the raised characteristic of the platform.

165. In my view, there is insufficient evidence to justify the assumption made by Dr Cooke, four years after the plaintiff's injury, to support the assumption Dr Cooke and the defendant make to the effect that the lighting conditions Dr Cooke observed on the occasion of his inspection of the premises, replicated the conditions that confronted the plaintiff, including concerning matters of glare which the plaintiff had described.

166. A raised timber platform of the kind shown in the photographs reproduced at paragraphs [7] to [15] above could only have been obvious to the plaintiff if he actually knew that the platform was raised, which is not the case here, or if the raised nature of the platform was observable to a reasonable person in the position of the plaintiff when traversing the area in the same conditions experienced by the plaintiff. Obviousness is a characteristic that must be viewed in context. Here, the context was the absence of prior knowledge of the raised platform and the effect of the lighting conditions, which included the effect of intense glare.

167. In that regard, it should be noted that the plaintiff's injury occurred at about noon on 19 June 2009. There was no evidence supported by sun and shadow diagrams, or window angles to the sun, to justify a conclusion that at the time of Dr Cooke's inspection at 12.45pm almost four years later in conditions of a clouded covered sky, that the intensity of the sunlight, included reflected glare, which may have been influenced by the state of the windows and any window coverings, was sufficiently similar to the conditions that confronted the plaintiff at the time of his fall.

168. The plaintiff gave un-contradicted and not otherwise improbable evidence that he could not see the raised platform in the circumstances of the prevailing lighting conditions at the time. He did not know of the raised platform beforehand, and the effect of the intense glare precluded him from seeing it before he tripped. I do not regard his evidence in that regard to be unreasonable or improbable, and I therefore accept it.

169. In contrast, the position of the defendant was somewhat different, because, some 4 months earlier, another hotel guest had tripped in the same location, and the defendant's employee, Rhian Adlam, had recorded the observation that at that time, the point at which the plaintiff had tripped, described as a "step", was not clearly visible. That was an important contemporaneous factual observation that was not relevantly contradicted by other contemporaneous evidence to suggest it might have been incorrect.

170. The plaintiff’s attention was attracted to the basket-like display to his right on the raised platform: T16.48. He therefore did not see the platform as he walked forward to the bar area even though he was looking where he was going. As he perceived the light coming into that area, he thought the object in his sight was sitting on the floor: T16.46 – T17.3.

171. The perceivability of the raised platform was not obvious in the light conditions as described by the plaintiff. In my view, a reasonable person in his position, similarly affected by the conditions of glare the plaintiff had experienced, would have had the same perception.

172. Based on the plaintiff’s evidence, which I accept, on the balance of the probabilities, I find that the plaintiff was not aware of the risk posed by the raised timber platform: s 5G(1) of the Act. The defendant ought to have had a sign of some kind drawing attention to the raised platform if it desired the continued presence of that platform in its raised state because the risk posed by the raised timber platform in the circumstances was not obvious.

173. I therefore find that the defence of obvious risk is not made out: s 5F and s 5G(1) of the CL Act. In the circumstances, the defendant did owe a duty to provide a warning about the raised nature of the decorative timber platform.

Issue 2 – Duty of care, alleged breach, causation of harm

174. As occupier of the premises, the defendant owed the plaintiff a duty to take reasonable care, including to take precautions against the risk of injury occurring to entrants on the premises due to a condition of the premises which the defendant knew or ought to have known would be likely to represent a foreseeable risk of injury to persons such as the plaintiff: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at p 488.

175. In my view, the raised decorative timber platform within the premises, on which a sculpture was placed on the day of the plaintiff's fall, posed such a risk to persons walking in the foyer taking reasonable care for their own safety. This is because transmitted glare within the premises from sunlight made it difficult to see the raised nature of the platform, especially where the sculpture on the platform was of a kind and at a location that attracted the visual attention of persons walking in the foyer, and where the ambient lighting could give rise to a reasonable perception that the raised timber structure was part of the floor, but of a different colour.

176. The allegations of negligence against the defendant, upon which the plaintiff relied, were as follows:

1. Failed to take adequate precautions for the safety of the plaintiff;

2. Failed to warn the plaintiff of the dangers to which he was exposed;

3. Exposed the plaintiff to a foreseeable risk of injury which could have been avoided by reasonable care;

4. Failed to observe that the plaintiff was in a position of peril.

177. In my view, those circumstances engage the duty of the defendant to take reasonable care by way of precautions and warnings of the kind embodied in items (a), (b) and (c) of the immediately preceding paragraph. This raises questions as to whether any failure of the defendant to act along those lines should be seen as constituting negligence, and if so, are the necessary statutory pre-conditions satisfied to justify such a conclusion.

178. Section 5B of the CL Act provides the required framework for consideration of the question of whether the defendant had been negligent as alleged. That section provides as follows:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

179. As to s 5B(1)(a) of the CL Act, it was plainly foreseeable that a low raised platform located in a hotel foyer near where people would be expected to walk, posed a risk of such persons tripping on such a structure. That is not only something that the defendant ought to have known, but it was also something the defendant actually knew about, as is evident from the defendant's incident report dated 1 February 2009, when another hotel guest tripped on that platform four months before the plaintiff's fall: Exhibit "B", p 495.

179. As to s 5B(1)(b) of the CL Act, the risk of a tripping incident occurring in the circumstances described by the plaintiff was not insignificant when viewed prospectively: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. Indeed, the raised platform has been instrumental in other persons falling there both before and after the plaintiff's accident.

180. As to s 5B(1)(c) of the CL Act, I consider that a reasonable person in the position of the defendant would have taken reasonable care in the way of precautions against the risk of someone such as the plaintiff tripping on the platform in question because of the likelihood of harm arising from the possibility of tripping there.

181. In those circumstances, when determining whether a reasonable person in the position of the defendant would have taken precautions against the risk of tripping, it is necessary to consider the requirements of s 5B(2) of the CL Act.

182. Before undertaking that consideration, it is relevant to identify the range of precautions that could be taken. These include: removing the platform altogether; isolating it from pedestrian contact by roping it off; better illuminating it to cater for a variety of lighting and visibility conditions that may vary according to the time of day; placing strategic pot plants on the edge or the corners of the platform; or placing warning signs to draw attention to the risk posed by the platform.

183. I now turn to a consideration of the requirements of s 5B(2) of the CL Act.

184. First, there should be no issue that if precautions were not taken, there would be a significant probability that harm from tripping would occur, as is evident from a consideration of the other incident that occurred on 1 February 2009. The incidents on 19 June 2009 and 13 December 2010 simply reinforce the point: s 5B(2)(a) of the CL Act.

185. Secondly, there should be no issue that a person tripping at the edge of the platform was likely to incur serious harm of the general kind that was suffered by the plaintiff: s 5B(2)(b) of the CL Act.

186. Thirdly, I consider that the burden of taking precautions of the kind outlined above, and as identified by Mr Burn, is not an unreasonable one, or one that would involve the defendant in undue expense or inconvenience, having regard to the fact that the hotel was operated as commercial premises, and the structures involved had only decorative and non-functional purposes: s 5B(2)(c) of the CL Act.

187. Fourthly, any social utility that might arise from the amenity of decorating the hotel foyer with the raised timber platform and the placement of related sculptures would be outweighed by the need to observe the requirements of safety: s 5B(2)(d) of the CL Act.

188. Fifthly, the fact that a similar tripping incident had occurred four months earlier on 1 February 2009, required that a risk assessment of the area be undertaken, as was suggested by Mr Burn. In my view, such a risk assessment, which would have recognised the difficulty in perceiving the stepped nature of the raised platform, ought to have reasonably given rise to a conclusion that precautions along the lines of those identified needed to be taken. Whether or not such an assessment took place, the fact remains that the trip hazard remained between 1 February 2009 and the date of the plaintiff's fall.

189. On the foregoing analysis, it becomes necessary to consider the provisions of s 5C of the CL Act, which provides

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

191. In my view, at the time the other hotel guest tripped and fell when walking past the platform on 1 February 2009, in circumstances where she reported that she did not expect the platform to be there, that occurrence engaged s 5C(a) of the CL Act, in that the need to take precautions, at least by undertaking a risk assessment, had crystallised at that time.

192. In my view, the defendant's failure to take any precautions from the array of argued options available to it at that time, and afterwards, amounted to a breach of the duty of care that it owed to persons such as the plaintiff who were likely to be foreseeably present on the premises.

193. I now turn to consider the question of whether, in the relevant sense, the plaintiff's injuries were caused by such breach or breaches of the duty of care owed. In that regard, s 5D of the CL Act provides:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ( "factual causation" ), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( "scope of liability" ).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

194. In considering the issue of factual causation, it is clear that the negligence that led to the plaintiff's fall was a necessary condition of the harm suffered by the plaintiff: s 5D(1)(a) of the CL Act; Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182.

195. It is also clear that the scope of the defendant's liability in negligence should be appropriately held to extend to the harm suffered by the plaintiff in the fall: s 5B(1)(b) of the CL Act. In arriving at that conclusion, there is no sound reason from within the evidence to suggest that the scope of the defendant's liability should not result in the defendant being held liable to the plaintiff for its negligence: s 5D(4) of the CL Act.

196. In seeking to resist that conclusion, the defendant argued that no one else has complained about conditions of glare in the hotel. In my view, that question approaches the analysis from the wrong direction.

197. This is because in placing an unusual object such as a raised platform in an area of the foyer that was accessible to pedestrian traffic, in a visual context where the timber background could provide misleading visual cues, those responsible for safety in the premises should have viewed the issue of whether the raised nature of the platform was sufficiently visible from a number of perspectives. That included the distracting effect of placing an ornamental sculpture on the platform and considering the visibility and the definition of the raised edge of the platform in the whole array of lighting conditions, including glare, that might from time to time apply at different times of the day or the year, and which were likely to affect what guests could see within the premises.

198. In that consideration, those responsible also needed to take into account the need to alert guests to the unusual and raised nature of the structure and its placement. This could have readily been achieved by appropriate warnings. Aesthetic considerations should take second place to safety considerations.

199. Contrary to the submission made on behalf of the defendant, I do not accept that the identified precautions ask too much of the hypothetical reasonable person in the position of the defendant as occupier of hotel premises, especially as the structure in question was intended only for decorative purposes, and served no other function.

200. Accordingly, on the above analysis, the plaintiff has established his case in negligence against the defendant.

Issue 3 – Alleged contributory negligence

201. By paragraph 12 of its filed defence, the defendant raised the following allegation of contributory negligence:

“(i)   The plaintiff in walking briskly from the lobby to the bar did not look where he was walking, specifically by not observing the display base, which a reasonable person in the position of the plaintiff would have done in walking from the lobby to the bar.”

202. Consequently, the defendant argued that the cause of the accident was as a result of the plaintiff not looking where he was going. I do not accept those submissions.

203. Instead, I accept the un-contradicted evidence of the plaintiff to the effect that he had been looking where he was walking at the time of the fall, but that he had not seen the raised timber platform on which he had tripped because of the glare he experienced at the time, and because at the time, the area was poorly lit.

204. The plaintiff was wearing his spectacles at the time. There was no contemporaneous evidence to suggest that a reasonable person in the position of the plaintiff, in the circumstances that then prevailed, would have seen the raised platform. The record made by the defendant’s employee Rhian Adlam, suggests otherwise.

205. There was no evidence to support the contention that the plaintiff had been moving too quickly as alleged. The fact that the plaintiff was walking briskly does not necessarily equate to, or constitute proof that the plaintiff had been walking too quickly at the time he tripped and fell.

206. For the above reasons, I reject the pleaded defence of alleged contributory negligence.

Issue 4 – Causation of ongoing disabilities

207. The plaintiff must prove that his ongoing disabilities have been relevantly caused by the negligence of the defendant: s 5D and s 5E of the CL Act.

208. The terms of s 5D have already been set out at paragraph [193] above.

209. The plaintiff had pre-existing degenerative changes in his spine which were as a result of the ageing process and as a result of his prior history of injuries. Dr Davis considered those matters, together with the plaintiff's history of being symptom free in his lumbar spine for about 2 years before the subject accident. The unchallenged, un-contradicted and not otherwise improbable evidence of Dr Davis, was to the effect that the plaintiff had suffered significant trauma to his upper and lower spinal regions and to both shoulders: Exhibit "B", p 12.

210. Similarly the evidence of Dr Davis confirmed the feasibility of the plaintiff's evidence in that regard, which I have accepted, at paragraph [78] above.

211. I have also accepted that the effect of the plaintiff's heavy fall has produced the post-accident symptoms of which he complained. In my view, factual causation has been established because, but for the fall in question, the plaintiff would not have had those injuries and the resultant symptoms: Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182, at [18].

212. It is well settled that the defendant must take the plaintiff as he is found in terms of any underlying vulnerable conditions of health that would predispose the plaintiff to injury and to further resultant ongoing symptoms: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

213. Although the evidentiary onus is on the defendant to show that the effects of any additional trauma on those underlying conditions has receded so that the effects of the trauma for which the defendant is responsible has ceased to have effect, it still ultimately remains for the plaintiff to prove that his claimed disabilities are relevantly caused by the subject accident: Glen v Sullivan [2015] NSWCA 191.

214. In my view, the plaintiff has discharged that onus by calling evidence from Dr Davis to show that the additional trauma has had its own ongoing effect in terms of damage to the underlying structures that have been the subject of exacerbation through the additional injury from the fall so that the condition of the spine has not reverted back to its pre-aggravation condition: T92.33 - T93.18.

215. The evidence of Dr Davis in that regard was not contradicted and it was not otherwise improbable. Accordingly, I find that the plaintiff has discharged the onus resting upon him to prove, in the legal sense, the causal connection between his fall, and the ongoing symptoms of which he complains: s 5D(2) of the CL Act.

Issue 5 – Assessment of damages

216. I now turn to the assessment of the plaintiff’s claims for damages.

Plaintiff’s probable life span

217. There is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 72 years, the plaintiff has a rounded down probable median statistical life span of a remaining 13 years.

Non-economic loss

218. The parties were at a significant difference as to the allocation of an appropriate percentage for the assessment of damages for non-economic loss according to a comparison with a most extreme case as required by statute: s 16 of the CL Act.

219. On behalf of the plaintiff it was submitted that the appropriate assessment was 28 per cent. On behalf of the defendant it was initially submitted that 18 per cent represented the appropriate assessment for this head of damage: MFI “4”. In the defendant’s final submissions, that submission was later increased to 23 per cent.

220. In my assessment, neither of those submissions should be accepted. Having regard to the plaintiff’s significant disabilities and restrictions, as outlined in paragraphs [87] to [90] above, and having regard to the significant aggravating effects of the fall on the plaintiff’s underlying condition in his spine which predisposed him to further trauma, and which significantly affects the amenity of his life, I consider the defendant’s submitted assessment of 23 per cent of a most extreme case to represent insufficient compensation.

221. On the other hand, I consider that the plaintiff’s submitted assessment of 28 per cent of a most extreme case is too high having regard to the discounts that are required to reflect the plaintiff’s situation described by Dr Davis, as summarised at paragraph [81] above, to the effect that the plaintiff’s lumbar spine was always vulnerable to the effects of even minor trauma that could render it symptomatic.

222. Whilst that factor does not negate the plaintiff’s entitlement to an award for non-economic loss because, as earlier observed, the defendant must accept the plaintiff as he is found, it is a relevant vicissitude to take into account: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406.

223. Furthermore, the plaintiff’s age is a discounting factor in this case, where the damages ought not be as high as those that would otherwise be awardable to a much younger person with the same disabilities: Reece v Reece [1994] NSWCA 259.

224. In my view, in the circumstances, the appropriate award for non-economic loss should be 26 per cent of a most extreme case. The present indexed monetary value of that assessment is the amount of $47,500. I therefore assess the plaintiff’s damages for non-economic loss in the amount of $47,500.

Past domestic assistance

225. The plaintiff makes various claims for past paid domestic care and assistance in employing maintenance staff or groundkeepers in the total amount of $110,075 (MFI “1”) or $104,675 (final submissions).

226. Those claims involve two component categories. The first involves the cost of maintaining the plaintiff’s Arizona property at the rate of $300 per month over a period of 18 months from the time that property was purchased, until the time of the hearing, variously identified in submissions at either $16,615 or $22,015. The second component involves the cost of maintaining the plaintiff’s Canadian property at the rate of $1200 per month from the time of his injury to date, namely $88,060.

227. The idea behind the plaintiff’s purchase of a property in Arizona, located in a warmer climate in the months of the Canadian winter, was to a degree supported by Dr Davis. Whilst the plaintiff’s use of that property undoubtedly assists him in coping with the deleterious effects of cold weather on his spinal symptoms, the claim for the cost of maintenance of the Arizona property is in my view too remote to reasonably sound in damages in this case.

228. This is because the plaintiff came to the claimed loss after his injury. He did not necessarily incur that expense as a natural and probable consequence of his injury. Whilst sojourning in Arizona is undoubtedly more agreeable for the plaintiff in the winter months, there must have been other less expensive ways for him to manage his symptoms in the winter months in Canada. Travel to Arizona is not a medical prescription. Accordingly, the cost of maintaining the Arizona property should not be allowed. The position might have been different if the plaintiff had already owned that property at the time of his injury.

229. Turning then to the balance of the claim for this head of damage, namely, maintenance for the Canadian property at the rate of $1200 per month for 318 weeks, this must be analysed in view of the evidence.

230. For the purposes of assessment the parties pragmatically agreed that the currency values for the Canadian dollar should be dollar for dollar Australian: T157.35 – T158.2. The claim is for $12 per hour.

231. According to s 15 of the Act, which prescribes the maximum hourly rate for such damages, when the amount of $12 per hour is viewed against that standard, even being a commercial rate, it must be recognised as being inherently reasonable.

232. The plaintiff spends six months of the year in Canada where he lives on a property comprising 5.4 acres which requires regular maintenance work which he now supervises because he cannot do the work himself: T28.31 – T29.26.

233. Before the subject injury the plaintiff was self-sufficient in attending to the maintenance needs of his property in Canada: T29.12; T29.35.

234. I accept that because of his accident related injuries and disabilities the plaintiff finds the maintenance work required for his Canadian property to be too difficult due to his pain and restricted mobility, and he therefore employs others to do the work for the six months of the year that he is in Canada.

235. I do not accept the defendant’s submission that there should be no allowance made for this head of damage. The plaintiff’s evidence is sufficiently descriptive of the need and the extent of the need and I accept his evidence as it is not inherently improbable. Furthermore, the plaintiff’s evidence gains general support from the evidence of Dr Davis. It is not necessary for this aspect of the plaintiff’s claim to be supported by a medical prescription, either as to the need generally or as to the hours required: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343; Sampco Pty Ltd v Wurth [2015] NSWCA 117.

236. The evidence is that he pays $12 Canadian per hour for a 6 hour day (for handyman type work) in Canada, 5 days per week. This is the equivalent of $360 per week: T28.20 – T29.9. The plaintiff described the maintenance work as being quite substantial: T29.9.

225. The plaintiff’s description of the work which he previously did himself was that it comprised painting, damage repairs on the occasions when his tenants move out, renovation work, and the care of horses on his property: T29.14 – T29.31. On the Canadian property, the plaintiff has a maintenance man who carries out fencing and roof repairs: T115.30. that person also attends to other chores, such as shovelling horse manure and taking it to a dump (T116.3) maintaining the plaintiff’s town houses on the property (T116.32) cleaning the pool and surrounding areas, including gardening (T117.4 – T117.30), managing the storage and return of vehicles when the plaintiff is away from Canada (T118) and managing the plumbing due to climate issues (T123.8). The plaintiff has employed a number of casual handymen for those tasks over the years since his accident: T121.44.

226. The evidence of the number of hours per week the maintenance employees spent on tasks the plaintiff would otherwise have done was imprecise. On the evidence, the plaintiff’s claim is for the value of a 6 hour day 5 days per week, or 30 hours per week or $360 per week for 26 weeks per year at $12 per hour. This is the equivalent of $9360 per annum. Over a period of a little over 6 years, this yields an approximate total of $56,280.

227. Allowing for factors such as variability of the work tasks over time, some inherent imprecision and overlap, I propose to allow a rounded down figure of $55,000 for this head of damage.

228. I therefore assess the plaintiff’s damages for past paid domestic handyman / maintenance assistance for the plaintiff’s Canadian property in the amount of $55,000.

Future domestic assistance

241. The plaintiff makes a claim for the cost of future handyman assistance for both his Canadian and his Arizona properties. That claim has been identified as being for $15 per hour, for 18 hours per week, for what appears from the submissions to be the equivalent of a little over 7.5 years having regard to the multiplier selected by the plaintiff for that submission: (x 333.1).

242. I consider the discount reducing the claim to the next 7.5 years to be sufficient and appropriate because, at age 72, with the plaintiff’s past accident history, and his underlying vulnerability to suffer back problems from commonplace activities as was described by Dr Davis and summarised at paragraph [81] above, absent the subject accident, I consider it to be most unlikely that after that time, despite being otherwise healthy, the plaintiff would have continued to be self-sufficient in the required maintenance tasks without seeking the assistance for which he now claims.

243. I therefore consider that an allowance for future handyman assistance for a rounded off period of a further 8 years would be a reasonable basis after making due allowance for the likely adverse vicissitudes that will inevitably face the plaintiff, notwithstanding his more optimistic view of his health and fitness for such tasks.

244. The claim of 18 hours per week applies to both the Canadian and the Arizona properties but at the highest rate. In identifying the Canadian component, it may seem arbitrary to simply halve the weekly figure that emerges from the claim, but the result may be pragmatic where accuracy is not possible on the evidence.

245. There is no explanation for the differential hours claimed for past services (30 hours per week) and the lesser estimate for the future (a proportion of 18 hours per week). The assumption may well be a progressive lessening of the need for the activities, for whatever reason, most probably due to the impact of vicissitudes, thus calling for an increase in the non-compensable component of the expenditure.

246. Recognising the assessment exercise is imprecise, I propose to allow for an approach that assumes 9 hours per week at $12 per hour as identified at paragraph [231] above, which is $108 per week, at 5 per cent for 8 years (x 345.6).

247. That projection yields an amount of $18,662, which should be further rounded down for imponderables and vicissitudes to the amount of $18,000. I therefore assess the plaintiff’s damages for future domestic assistance in the amount of $18,000.

Future treatment expenses

248. The plaintiff makes a claim for future treatment expenses in the amount of $13,396. That sum comprises a claim for $1200 per annum for physical therapies projected over 5 years, an initial gymnasium membership of $2700 and annual gymnasium membership fees of $1200 per annum over the next 5 years, those amounts totalling $13,396.

249. In my view those amounts need to be reduced on account of several factors. First, Dr Davis considers the benefits of ongoing chiropractic treatments to be doubtful: T85.14; T89.9. Secondly, from the plaintiff’s own evidence it seems unlikely that he would pursue the gymnasium recommendation in view of his stated attitude to such matters: T126.38 – T126.45.

250. Nevertheless, some monetary sum should be allowed for occasional medical and allied consultations and treatment, and occasional painkilling medication. The pattern of engagement with such treatments (apart from habituated maintenance therapy which Dr Davis does not support) appears not to follow a fixed regime. Accordingly, I consider that an assessed buffer sum is the more appropriate method of assessment rather than using weekly figures for projection. In my view, an appropriate buffer amount would be $5000. I therefore assess the plaintiff’s damages for future treatment in the amount of $5000.

Out-of-pocket expenses

251. On behalf of the plaintiff it was submitted that the claim for past out-of-pocket expenses in the amount of $4382 should be accepted as being representative and reflective of the chronology of the plaintiff’s post-accident attendances at the chiropractor, and for medication: Exhibit “E”.

252. The defendant submitted that the claim for such expenses should be reduced to reflect the pre-accident pattern of the plaintiff’s attendances in any event. I consider that latter submission to have some force.

253. On the other hand, Dr Davis stated, as is cited at paragraph [73] above, the initial treatment obtained by the plaintiff, including the chiropractic treatment, was appropriate. Given that the plaintiff was symptom free in his lumbar spine for 2 years before the fall, I consider that a modest discount to past out-of-pocket expenses should be applied so as to reduce the amount claimed to $4000. I therefore assess the plaintiff’s damages for out-of-pocket expenses in the amount of $4000.

Summary of damages assessment

254. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non economic loss	$47,500
(b) Past domestic/handyman assistance	$55,000
(c) Future domestic assistance	$18,000
(d) Future treatment expenses	$5,000
(e) Past out-of-pocket expenses	$4,000
Total	$129,500

Disposition

255. As the plaintiff has succeeded in the litigation he is entitled to a verdict and judgment in his favour against the defendant in the sum of $129,500.

Costs

256. Having succeeded in the proceedings, it follows that the plaintiff is entitled to have his costs of the proceedings paid by the defendant on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

257. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $129,500;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

**********

Decision last updated: 18 December 2015