Lee v Carlton Crest Hotel (Sydney) Pty Ltd - [2014] NSWSC 1280

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280
Hearing dates: 2 to 13 December 2013
Decision date: 19 September 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The proceedings stand over to 17 October 2014 at 9:00am for directions.
(2) There be liberty to apply.

Catchwords:
NEGLIGENCE - deceased's vehicle passed through exterior fence on second level of commercial car park - fact finding - role of faulty wheel stop in cause of accident - fence non-compliant with relevant standard - role of fence in cause of accident.

DUTY OF CARE AND BREACH - owner of commercial car park - duty owed to users of car park - obligation to inspect for repairs and defects - scope of obligation to take action in response - burden of doing so.

TRADE PRACTICES ACT 1974 (CTH) - implied term - whether contract between driver of vehicle and operator of car park - whether contract for supply of services to consumer - whether wife of deceased driver can bring claim under Compensation to Relatives Act 1897 (NSW) in respect of breach of contract containing term implied by Trade Practices Act - whether such a claim is governed by Civil Liability Act 2002 (NSW).

NEGLIGENCE - liability of Council - power and functions exercised by Council from 1985 to 1991 in relation to development approval for car park, building approval for car park, inspection and licensing of car park - whether Council owed user and occupants of car park a duty of care in respect of exercise of statutory powers - whether Council committed misfeasance or non-feasance - whether Council breached duty - whether Council protected from liability by s 43A of Civil Liability Act - applicability of s 44 of Civil Liability Act.
DAMAGES - nervous shock and claim under Compensation to Relatives Act - relevance of possibility that but for husband's death plaintiff would raise adopted child - plaintiff's economic loss - mixture of contract income and wages - plaintiff's share of late husband's likely income.
Legislation Cited:
- Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5E, s 5R, s 5T, s 12, s 13, s 16, s 17A, s 30, s 31, s 32, s43A
- Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (No 92 of 2002)
- Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW), s 46
- Compensation to Relatives Act 1897 (NSW), s 3, s 4
- Environmental Planning and Assessment Act 1979 (NSW), s 90, s 91
- Judiciary Act 1903 (Cth), s 80
- Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
- Local Government Act 1919 (NSW), Part XI, s 305, s 306, s 310, s 311, Div 4, s 312, s 313, s 314, s 316, s 317AB, s 317AD, s 317AE, s 317AG, Div 4D, s 317B, s 319, s 586, s 591, s 615, s 632
- Local Government Act 1993 (NSW), s 674
- Local Government (Building and Construction Industry Long Service Payments) Amendment Act 1986 (NSW) (No 20 of 1986)
- Local Government (Building Regulation) Amendment Act 1989 (NSW) (No 80 of 1989)
- Local Government (Residential Flat Buildings) Amendment Act 1986 (NSW) (No 131 of 1986), s 4 and Sch 7
- Statute Law (Miscellaneous Provisions) Act (No 1) 1987 (NSW) (No 48 of 1987)
- Trade Practices Act 1974 (Cth), s 4, s 4B, s 74
Cases Cited:
- Austin v Bonney [1999] 1 Qd R 114
- Baden Cranes Pty Ltd v Smith; Brambles Australia Ltd v Smith [2013] NSWCA 136
- Benic v State of New South Wales [2010] NSWSC 1039
- Blatch v Archer [1774] Eng R 2; 98 ER 969
- Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
- Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202
- Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; 173 CLR 33
- Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
- Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
- Curtis v Harden Shire Council [2014] NSWCA 314
- De Sales v Ingrilli [2002] HCA 52; 212 CLR 338
- Drotem Pty Ltd v Manning [2000] NSWCA 320
- G v H [1994] HCA 48; 181 CLR 387
- Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151
- Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1
- Harris v Empress Motors Ltd; Cole v Crown Poultry Packers Ltd [1983] 3 All ER 561
- Insight Vacations Pty Ltd v Young [2010] NSWCA 137; 78 NSWLR 641
- Jones v Bartlett [2000] HCA 56; 205 CLR 166
- Jones v Dunkel [1959] HCA 8; 101 CLR 298
- Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; 171 LGERA 165
- Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154
- Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361
- MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416
- Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727
- Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49
- Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313
- Paul Dainty Corporation Pty Ltd v Sydney City Council [1983] 2 NSWLR 147
- Payne v Parker [1976] 1 NSWLR 191
- Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330
- Rasmussen v South Western Sydney Local Health District [2013] NSWSC 656
- Roads and Traffic Authority v Cremona [2001] NSWCA 338
- Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
- Roads and Traffic Authority v McGregor [2005] NSWCA 388
- Ryan v A F Concrete Pumping Pty Ltd [2013] NSWSC 113
- Shaw v Thomas [2010] NSWCA 169
- Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
- Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215
- Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424
- Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317
- Taylor v The Owners - Strata Plan No 11564 [2013] NSWCA 55, 83 NSWLR 1
- Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
- Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234
- Tweed Shire Council v Hancomatic Music Pty Ltd [2007] NSWCA 350
- Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
- Wallace v Kam [2012] NSWCA 82
- Wallace v Kam [2013] HCA 19
- Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388
- Warren Shire Council v Kuehne [2012] NSWCA 81; 188 LGERA 362
- Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515
- Woolworths Ltd v Crotty [1942] HCA 35; 66 CLR 603
Texts Cited: - Law of Negligence Review Panel, Parliament of Australia, Review of the Law of Negligence Final Report (September 2002)
- Dominic Villa, Annotated Civil Liability Act 2002 (NSW) (Thomson Reuters, 2nd Ed, 2013)
Category: Principal judgment
Parties: Michelle Lee (Plaintiff)
Carlton Crest Hotel (Sydney) Pty Ltd (First Defendant)
City of Sydney Council (Fourth Defendant)
Representation: Counsel:
R.A. Cavanagh SC, A.J. Bowen (Plaintiff)
L. King SC, J. Sheller (First Defendant)
D.T. Miller SC, C. Purdy (Fourth Defendant)
Solicitors:
Beswick Lynch Lawyers (Plaintiff)
Thompson Cooper Lawyers (First Defendant)
Moray & Agnew (Fourth Defendant)

File Number(s): 2009/297394

Judgment

Introduction

On the evening of Sunday, 5 March 2006, the plaintiff in these proceedings, Michelle Lee, was a passenger in a car driven by her husband, Thomas Lee. Mr Lee drove the car to a multi-level commercial car park in the Haymarket area operated by the first defendant, Carlton Crest Hotel (Sydney) Pty Ltd (the "car park" and "Carlton" respectively). The car park was attached to the Carlton Crest Hotel, which was also owned and operated by Carlton (the "Hotel").

Mr Lee drove to the second level of the car park and found a car space. Ms Lee alighted from the vehicle while Mr Lee endeavoured to reverse the car further into the car space. What followed was the commencement of an ongoing nightmare for Ms Lee. She heard the engine idling and observed it slowly reverse further into the car space. She then heard the engine rev and saw the car reverse towards a metal railing that was the perimeter barrier for that part of the car park. To her horror the barrier disintegrated and the car fell off the edge. She rushed to the ground floor. She found her husband fatally injured. He never regained consciousness and was later pronounced dead.

This brief recounting of the events of the accident suggests that Mr Lee was grossly reckless in his control of the vehicle. However, this was not so. An examination of the area of the accident revealed two matters of significance. The first was that only one end of the wheel stop at the rear of the car space was affixed to the floor of the car park. This meant that it had the capacity to rotate when force was applied to it. The second was that the perimeter railing on that level of the car park was grossly inadequate. It was described by one of the engineers as no more than a "pedestrian railing". It was meant to be constructed in accordance with a particular design standard that prescribed a specific level of load resistance. It did not comply with that standard. If it had, then Mr Lee's car would not have left the second level of the car park. It was travelling at no greater speed than 5km per hour at the point it collided with the fence.

In these proceedings Ms Lee sues Carlton as the owner and occupier of the car park and the entity otherwise responsible for its operations. She also sues the fourth defendant, the City of Sydney Council (the "Council"), as the body vested with certain powers concerning the approval of the proposed design, construction, occupation and use of the car park. (The proceedings against the second and third defendant were not pursued and it is not necessary to consider them further.) Ms Lee sues for so-called "nervous shock", that is psychological harm, she has suffered as a result of witnessing her husband's death. She also sues under the Compensation to Relatives Act 1897 (NSW) in respect of the alleged "wrongful act, neglect, or default" of Carlton and the Council towards her late husband.

I find that, after Ms Lee alighted the vehicle, Mr Lee placed the car's engine in reverse and allowed it to idle until it came to a stop. I find that it stopped when some part of the undercarriage of the vehicle came into contact with part of the wheel stop. I find that Mr Lee then applied some accelerating force because the car had not reversed as far back in the car space as he thought necessary. Due to the inadequate manner in which the wheel stop was affixed to the floor of the car park, it did not provide the tactile resistance that Mr Lee was expecting. At this point the wheel stop rotated and the car collided with the railing, which then gave way.

I find that Carlton was negligent. I find that it owed a duty of care to users of the car park that required it to have a reasonable system of inspection of the surface of the interior and exterior of the car park to ascertain the existence of any potentially significant and obvious defects or disrepair, including such defects or disrepair concerning its external railings and wheel stops, and to take reasonable steps in response. I find that it did not have such a system and that, if it had, an inspection would have revealed that the state of the car park was such that an inspection by an engineer was required. In turn, this would have resulted in the problems with the railing and wheel stop being addressed, and the accident would not have occurred. I also find that Carlton was aware that there were some unattached wheel stops and that at least one of the perimeter railings was loose. This should also have resulted in an inspection by an engineer and ultimately rectification works being undertaken.

Ms Lee also pleaded the existence of a contract between herself or her husband or both and Carlton in relation to the provision of "car parking services". I do not accept that she contracted with Carlton. I accept that her husband did but, for the reasons explained below, this does not advance Ms Lee's case beyond her successful claim in negligence.

I also find that the Council was negligent. In particular, I find that the car park was not erected in compliance with the provisions of former Ordinance 70 made under the Local Government Act 1919 (NSW) (the "LGA 1919"). The perimeter railing did not comply with the standard noted above which was incorporated into Ordinance 70. Towards the end of the construction of the car park and the Hotel in 1989, the Council inspected the premises. Based on its inspection and presumably such other material available to it, the Council issued a building certificate and a classification certificate under Ordinance 70, which had the effect of enabling the building to be used as a commercial car park. The Council was otherwise satisfied that the car park was erected in conformity with the LGA 1919 and Ordinance 70 (see former s 310 of the LGA 1919). I am satisfied that there was no material upon which the Council could have concluded that the perimeter railing conformed with the relevant standard, and that the railing was a significant safety feature of the building as a whole. I find the Council's inspection and subsequent exercises of power were negligent and unreasonable. I also do not consider that any liability of the Council was excluded by the operation of s 44 of the Civil Liability Act 2002 (NSW) (the "CLA").

Carlton cross-claimed against the Council. I reject Carlton's contention that it was owed a direct duty of care by the Council, but nevertheless accept that contribution is available under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). Nevertheless, as between Carlton and the Council, I find that Carlton should bear responsibility for the bulk of the judgment in Ms Lee's favour, namely 75%, and that the Council should bear responsibility for 25%.

Further, I accept that the contention of each of Carlton and the Council that Mr Lee's own negligence contributed to his death, being his conduct in applying accelerating force in the circumstances already described. However the assessment of his level of culpability must take into account the fact that Mr Lee had no knowledge of either the faulty wheel stop or the grossly inadequate nature of the perimeter railing. I have determined that a reduction of 20% of the damages recoverable is warranted on account of his contributory negligence.

Otherwise, I have made the findings necessary to quantify the damages recoverable by Ms Lee. As a result of her husband's death Ms Lee has suffered an almost complete psychological collapse affecting every part of her life, including her promising career as a speech pathologist. Also, absent the accident, she could have expected to have derived significant economic benefits from her marriage. It follows from my findings that her damages will be substantial. The parties will need to prepare calculations and confer as to the appropriate orders necessary to give effect to this judgment.

The balance of these reasons is structured as follows:

(1) The accident ([13] to [71])

(a) Ms Lee's evidence ([15] to [25])

(b) The vehicle and the wheel stop ([26] to [36])

(d) How the accident occurred ([42] to [63])

(e) Conclusion ([64] to [66])

(f) Some causation findings ([67] to [71])

(2) The car park ([72] to [117])

(a) The photographs of other railings and wheel stops ([73] to [80])

(b) Joe Yurdakul ([81] to [85])

(d) Vito Ricapito ([91] to [93])

(e) Sandy Aung ([94] to [100])

(f) Bobby Toh ([101])

(g) Kanwarpreet Kanwar ([102] to [107])

(h) Findings ([108] to [113])

(i) Expert evidence as to inspection regime ([114] to [117])

(3) Is Carlton liable in negligence? ([118] to [164])

(a) Duty of care ([120] to [141])

(b) Breach and precaution ([142] to [159])

(4) Contributory negligence ([165] to [170])

(5) Contract claim against Carlton ([171] to [186])

(6) Ms Lee's case against the Council ([187] to [402])

(a) Statutory powers and functions of the Council ([188] to [235])

(i) Environmental Planning and Assessment Act 1979 (NSW): Development Approvals ([189])

(ii) Local Government Act 1919 (NSW): Regulation of building work ([190] to [206])

(iii) Ordinance 70: Regulation of building work ([207] to [220])

(iv) Enforcement ([221] to [223])

(v) Inspections ([224] to [231])

(vi) Licensing of car parks: Ordinance 34B ([232] to [235])

(b) The railing and compliance with the 1981 Standard ([236] to [245])

(d) Council records ([259] to [305])

(i) 1983 to early 1987: Concrete barrier ([264] to [285])

(ii) 1987 to 1988: Metal railing ([286] to [297])

(iii) 1989 to 1991: Inspections and certification ([298] to [305])

(e) Which powers and functions were exercised by the Council and which were not? ([306] to [310])

(f) Was a structural diagram or an engineer's certificate for the railing supplied to the Council? ([311] to [336])

(i) Jones v Dunkel ([314] to [321])

(ii) Balance of submissions ([322] to [329])

(iii) Resolution ([330] to [336])

(g) The Plaintiff's pleaded case ([337] to [344])

(h) Duty of care: Negligent exercise of powers ([345] to [360])

(i) Rejected particulars of negligence ([361] to [365])

(j) Upheld particulars of negligence ([366] to [379])

(k) Causation ([380] to [381])

(l) Section 42 ([382])

(m) Section 43 (383])

(n) Section 43A ([384 to [388])

(o) Section 44 ([389] to [402])

(7) Carlton's cross-claim against the Council ([403] to [407])

(8) Damages for nervous shock ([408] to [502])

(a) Ms Lee's condition after the accident ([416] to [427])

(b) Medical evidence ([428] to [445])

(d) Nervous shock claim: Economic loss ([452] to [494])

(i) Ms Lee's career pre and post accident ([453] to [459])

(ii) Taxation records ([460] to [465])

(iii) Autism Central ([466] to [471])

(iv) Jane Purcell ([472] to [476])

(v) Other material ([477] to [478])

(vi) The Plaintiff's submissions ([479] to [482])

(vii) Carlton's submissions ([483] to [484])

(viii) Resolution ([485] to [494])

(e) Nervous shock claim: Past domestic assistance ([495])

(f) Nervous shock claim: Future domestic assistance ([496])

(g) Nervous shock claim: Past out of pocket expenses ([497]

(h) Nervous shock claim: Future out of pocket expenses ([498] to [502])

(9) Damages under the Compensation to Relatives Act 1897 (NSW) ([503] to [538]

(a) The income Mr Lee would have brought to his marriage ([509] to [527])

(b) The share of the benefit ([528] to 534])

(d) The period for which Mr Lee could reasonably have expected to receive the benefit ([538])

(10) Superannuation ([539])

(11) Costs of future funds management ([540] to [543])

(12) Future disposition ([544] to [545])

(13) Orders ([546]).

(1) The accident

On the evening of Sunday, 5 March 2006, Ms Lee's husband drove her to the Haymarket area. They were intending to have dinner with Ms Lee's family. Mr Lee drove into the car park. He was driving a 1996 model Toyota Camry. The car had an automatic transmission.

Mr Lee had parked in the car park on a number of previous occasions. He drove the car to the "white" level of the cark park, being the second level. Mr Lee found a spot on the perimeter of the car park. The external barrier of that section of the car park was a metal railing. Some of the external barriers for other parts of the car park were metal railings and some were made of concrete.

(a) Ms Lee's evidence

According to Ms Lee her husband reversed the car "into the space slowly". She recalled the engine stopped. She got out of the car and closed the door. She recalled thinking that "our vehicle was approximately 30 centimetres too far out into the car park". Her husband alighted from his side and looked towards the front of the car. They looked at each other and "simultaneously said the word 'reverse'".

Mr Lee returned to the driver's seat. In her witness statement Ms Lee described what happened next as follows:

"I heard the ignition sound and the engine running. I was watching the car in order to give him instructions so that he wouldn't hit the railings with the back of the car. After hearing the engine start the vehicle rolled slowly backwards for a short distance. The vehicle then stopped. I then heard it 'rev' which sounded like the engine moving from a low rev to a high rev. A second or two later after the high revving I saw the car suddenly move towards the steel barrier. It then rolled quickly towards the barrier. It appeared to me to remain on the same level during this passage towards the barrier. It then went straight through it without stopping." (emphasis added)

The vehicle flipped over by the time it reached the ground below. Ms Lee ran to the scene. Her husband was unconscious. She did not initially see any visible sign of injury, but then saw a rush of blood from his head and heard a "gurgle". She stroked his face. An ambulance arrived soon afterwards and transported Mr Lee to hospital. Within a hour of his arrival she was told he would not survive. I address below the consequences for Ms Lee of this tragedy. It suffices to state at this point that her life as she knew it was over.

Ms Lee spoke to a police officer on the night of the accident. The officer recorded what Ms Lee stated in a police notebook which she signed. It included the following:

"... Thomas got back into the car to reverse it further back into the spot. I saw the vehicle reverse slowly and then stop a short distance back. I then saw the vehicle accelerate quickly backwards. I heard the noise of the engine revving loudly. It was like the first time he went to reverse there was no power and the car barely moved, so he gave it more the second time." (emphasis added)

On 14 March 2006 Ms Lee gave a more detailed statement to the police. Her husband had been buried four days previously. In that statement Ms Lee stated that, after they parked, her husband did not leave the car but instead just "stuck his head out" to ascertain the car's position. She described the events that immediately followed in these terms:

"Tom started to reverse but the car didn't move very much. I heard Tom increase the acceleration and I turned to watch the rear of the car. All of a sudden I saw the car go through the railings. The barrier didn't even slow the car. The car just went straight through it. I saw the car flip, but I don't know how many times."

Three aspects of these accounts should be noted.

First, they each involve the car initially moving back slowly. In her oral evidence Ms Lee stated that if the car's transmission was in reverse then it would idle backwards without any depression of the accelerator. When she was asked about the movement of the car at this point, Ms Lee said:

"Q. The engine isn't revving at this point?

A. No, because it's slowly sort of going back, yep."

Second, in her statement in this Court and her initial statement to the police Ms Lee stated that the car stopped before revving. In cross-examination Ms Lee reiterated that the car moved a short distance back and then stopped.

Third, in her statement in this Court Ms Lee stated that the vehicle appeared to remain on the same level while moving towards the external barrier. This suggests that the vehicle did not mount any wheel stop before it struck the barrier.

This aspect of her evidence was queried in cross-examination. It was not mentioned in her two statements to the police, although they are not inconsistent with that assertion. In cross-examination it was suggested that it was "not a fair thing for you to say, is it, that it seemed to you to remain on the same level?" She replied that "I was just talking about what I thought I saw". I will return to address this shortly. It suffices to state that, given its provenance and the circumstances in which the accident occurred, I will treat this aspect of Ms Lee's evidence as no more than an impression rather than a firm recollection on her part.

For the sake of completeness, I note that in the cross-examination of Ms Lee it was asserted that a psychiatrist retained on behalf of Carlton who examined Ms Lee, Dr Klaas Akkerman, had recorded Ms Lee stating that the car "went over a wheel stop and then through the barrier". This appears to have been an unintentional slip on the part of the cross-examiner. Dr Akkerman only recorded the plaintiff stating it "hit" the wheel stop which is not the same. In any event, in the absence of Dr Akkerman being asked precisely what was stated, I do not attach any weight to the comment he recorded.

(b) The vehicle and the wheel stop

The length of the Toyota Camry was 4.795m. It was 1.77m wide. A police officer with the appropriate qualifications who assisted the coroner examined the vehicle and concluded that it did not suffer from a mechanical defect or failure. Photographs of the vehicle suggest little damage to its rear bumper. Beyond that, it was not suggested that anything revealed by the post-accident inspection of the vehicle was relevant.

Each of the parking spaces on the perimeter of the car park level that Mr Lee parked on was meant to have a concrete wheel stop located at the back of the car space. The car parking space was 2.5m wide. The distance from the end of the side lines on each side of the car space to the position the wheel stop was meant to be in was 5.3m. The distance from the position that the wheel stop was meant to be in to the start of the railing on the exterior of the car park was 750mm.

A consultant engineer retained by Carlton, Colin Simpson, stated that the form of wheel stop in use at the car park was approximately 2m in length, 150mm wide and 165mm high. The three engineers called on behalf of Ms Lee estimated that the wheel stop weighed just under 100 kg. The wheel stop was meant to be affixed by each of its ends to the concrete floor of the car park by a 16mm steel dowel of approximately 400mm in length, together with grouting along the length of the wheel stop.

As is to be expected, on the day of the accident, the police attended and took photographs. The only copies of those photographs that were tendered were black and white photocopies attached to one of the reports of the engineers retained on behalf of Ms Lee. One of the photos shows the wheel stop in the car space that Mr Lee parked in was displaced. It had rotated at an angle of 30 degrees at the northern end while the southern end remained fixed.

Six days after the accident a friend of Ms Lee and her husband, David Wilmshurst, went to the car park. Mr Wilmshurst took a number of photographs of the scene. Some of the photos included a tape measure and provided the evidentiary basis for some of the dimensions noted in this judgment.

One of the photographs taken by Mr Wilmshurst depicts a top view of the wheel stop at the site of the car space that Mr Lee parked in on the night of the accident. Consistent with the police photographs noted in [29], the photograph shows the southern end attached to the floor of the car park in the correct position at the back edge of the car space. However the northern end has rotated towards the railing. There are scratch markings on the floor of the car park adjacent to the wheel stop at a point covering an area approximately 30cm in length from the northern end. They suggest that at some point the wheel stop has swivelled at that end and scratched the floor while the southern end remained attached. There are also some black markings on the top of the wheel stop. The location of the wheel stop in this photograph appears to be the same as that shown in the photograph taken by the police on the day of the accident, i.e. it does not appear to have moved in the meantime.

The three engineers retained by the plaintiff were John Jamieson, a traffic engineer, and two structural engineers, Peter J. Taylor and John M. Alden. Reports from all three were tendered. Carlton tendered a report from Mr Simpson. All four engineers met in a joint session and provided a joint report. They were all due to provide evidence in a conclave but unfortunately Mr Simpson was too sick to attend. In broad terms the engineers addressed the circumstances of the accident and compliance by the railing with the relevant building standards. (They also addressed some matters of engineering knowledge that it could be expected to be possessed by any engineer considering the matter at the time that various Council approvals were sought for the design and construction of the car park in the 1980s: see [236] to [245].)

All of the engineers agreed that there was never a dowel at the northern end of the wheel stop affixing the wheel stop to the floor of the car park. In his report Mr Simpson stated that it appeared that "no grouting had [ever] been used" to affix the bottom of the wheel stop to the surface of the car park, which would have allowed the wheel stop to rotate more easily. In oral evidence Mr Alden qualified this. He was shown the colour photographs taken by the police on the day of the accident. He considered they indicated that there was some grouting on the bottom of the northern end of the wheel stop but not the remainder. This explained why there were only scrape marks at the northern end of the wheel stop. I accept that was the case. It meant that the rest of the wheel stop was elevated off the floor of the car park and the level of force required to rotate the wheel stop was commensurately reduced.

Three other points about the wheel stop should be noted. First it is not known whether or not the wheel stop was in a straight alignment (i.e. parallel to the exterior railing) at the time Mr Lee reversed into the car space. If it had been out of place, that would have been immediately noticeable to any staff member who inspected it. I describe the "system" of inspection of the car park below. Suffice to state that I am satisfied that any misalignment of the wheel stop would not have been corrected.

Second, the engineers appeared to be of the view that the scrape marks on the top of the wheel stop were caused by Mr Lee's motor vehicle. In their joint report they stated:

"It was agreed that the evidence, in the form of scrape marks on the slab and black markings on the top of the wheel stop, indicates that the wheel stop had moved during the accident." (emphasis added)

Third, notwithstanding this observation, it is not clear what part of the vehicle scraped the top of the wheel stop and at what point that occurred. As I will explain, one hypothesis put forward was that some part of the vehicle's undercarriage came into contact with the wheel stop before its tyres did. This scenario was certainly possible. A number of the photos of the wheel stops taken after the accident depict the undercarriage of cars coming into contact with a wheel stop before its tyres abut its edge (see [56] below).

(c) The external railing

The top of the external railing that the motor vehicle passed through was approximately 900mm above the floor of the car park. It was comprised of four horizontal rails. The top rail was circular and hollow. Its outside diameter measured 90mm. The three remaining rails were of 36mm outside diameter. At intervals of 1.96m these horizontal bars attached to a 90mm x 10mm vertical bar which was affixed to the edge of the car park's concrete floor.

Some of Mr Wilmshurst's photographs showed the remnants of the exterior railing that were destroyed by Mr Lee's vehicle. The bottom of the vertical poles that attached the railings to the floor of the car park have come away completely. Mr Wilmshurst made observations of the edge of the slab that gave way under the force of Mr Lee's car. He noticed cracks running parallel to the edge of the slab which coincided with the bolt holes on the attachment plates. Mr Wilmshurst observed that parts of the slab edge "had been cracked for some time". He photographed a rusty key that had fallen in the crack. Mr Alden considered that it was evident that the railing failed as a result of the concrete between the anchors at the base of the posts and the edge of the slab breaking away.

Each of the engineers identified the version of Australian Standard 1170 published in 1981, also known as the SAA Loading Code, as applicable to the design and construction of the external railing (the "1981 Standard"). I will return to address the legal significance of the standard to this case. At this point it suffices to note that clause 3.3 of the 1981 Standard deals with "[i]mpact and [i]nertia loads" that a building structure should be able to withstand including "[h]orizontal impact or braking forces arising from the movement of vehicles". The 1981 Standard identified loads for impact and braking calculated by reference to the mass of the vehicle, and specified a presumption as to the weight of the vehicle. Clause 3.3 also stated:

"The height at which vehicle impact forces are considered to act shall be generally 0.45m above floor level but in the case of motor trucks it shall be not less than 0.9m.

NOTE: Special consideration should be given to the design of kerbings and guard rails to alleviate possible vehicular impact on the structure and it should be noted that the impact forces from runaway vehicles on ramps can considerably exceed the loads specified above."

In their joint report all of the engineers recorded their agreement that the steel perimeter railing failed to comply with the loading requirements in the 1981 Standard. In his report Mr Taylor addressed this is in detail. In particular he noted that the horizontal rails, the bolts anchoring the rail to the baseplate, the location of the anchors and the anchorage depths were inadequate to withstand the vehicle impact loadings specified in the 1981 Standard. He also concluded that two of the steel barrier standards would fail under a horizontal impact that was equal to or greater than 50% of the 1981 Standard. He also concluded that the edge of the concrete slab and the anchorage would fail under a load that was equal to or greater than 62% of the 1981 Standard.

These conclusions were not contested. The only issue that was raised concerning compliance with the 1981 Standard was whether the notation in the extract at [39] above either did suggest, or was capable of suggesting, that the level of resistance presented by a wheel stop could be taken into account as part of the calculation of the impact resistance of the barrier in question. I address this below.

(d) How the accident occurred

In finding the basal facts surrounding the accident I must be mindful that, while overall Ms Lee bears the onus of proof on the balance of probabilities, both Carlton and the Council sought to positively assert various facts relevant to either the cross-claim or pleaded allegations of contributory negligence, and in that respect they also bore an onus. While the onus is an undemanding standard only requiring a "preponderance" of evidence, the Court must nevertheless "feel an actual persuasion" of the relevant fact's occurrence before it is established, and that cannot be reached by a "mere mechanical comparison of probabilities [independent] of any belief in its reality" (Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361 per Dixon J).

The starting point is the unchallenged portions of Ms Lee's evidence that I have described above, as well as the characteristics of the wheel stop and the railings.

In his written submissions, senior counsel for Ms Lee, Mr Cavanagh SC, contended that the accident occurred in the following way:

"When the undercarriage came in contact with the wheel stop Mr Lee was reversing in the normal way. However, the wheel stop moved and the vehicle was suddenly released. This sudden and unexpected movement of the car caused an unintended reaction in Mr Lee in the sense that his foot, which was on the accelerator, may have been depressed by the sudden movement of the car causing the vehicle to move backwards in an uncontrolled manner, hitting the railing and going through the railing."

Neither of the defendants descended to the point of putting forward an all embracing hypothesis which sought to explain how and why Mr Lee behaved as he appeared to. Instead they both asserted that at some point the vehicle reversed to a point and stopped, and then Mr Lee applied accelerating force. Both defendants contend that this involved contributory negligence on Mr Lee's part, a matter I will return to.

The submissions of senior counsel for Carlton, Mr King SC, hotly disputed Mr Cavanagh SC's contention of an involuntary reflex explaining the sudden acceleration. Senior counsel for the Council, Mr Miller SC, went further. In his submissions he contended that the "only rational conclusion is that Mr Lee somehow drove up and over [the wheel stop] after he had already brought his vehicle to a stop when correctly positioned in the car bay".

It is convenient to deal with the evidentiary basis for Mr Cavanagh SC's submission first. The submission was based on the following passage from Mr Alden's evidence:

"Witness Alden: ... Yeah, basically my expectation would be that the car has reversed, something on the undercarriage has caught the wheel stop north of the pivot point. ... And that at some point of load being applied, that's slipped, the car has gone back, basically the car has gone over the wheel stop. It is not clear that the wheels would have gone over the wheel stop because they may have gone beside the wheel stop. As it rotates, of course, the barrier becomes narrower and so from that point of view, the car can then travel back over the edge, through the railing over the edge and fall to the ground.

[Mr Alden was then asked to repeat what he stated.]

Okay. Basically as the scenario I think seems to be most likely is as the car has reversed, some part of the undercarriage of the car catches on the wheel stop and causes some constraint to the movement of the car. I think it's likely that in fact it's some part of the undercarriage of the car because if the wheels were back at the wheel stop position, the car would be well back in the car parking bay. There would be no perceived reason for it to go any further. So it seems to me more likely that part of the undercarriage of the car, so the rear of the rear wheels, has caught the wheel stop, applied some sort of force to the wheel stop. If it's some sort of wedging action, there would be a horizontal and a vertical force and at some point the slip has occurred and as the slip has occurred, the car has gone back and - and then gone through the railing and over the edge.

[Senior Counsel for the plaintiff]: And when this slip occurs, what happens to the driver when the slip occurs in terms of what the driver is doing with his foot? Is there some motion in the car or movement?

...

Witness Alden: If it's a sudden slip, in other words if there is a sudden release of constraint, then there is some sort of dynamic effect and - and so one of the things that can happen in that case is that your body is sitting there. If the car suddenly moves back, then your body is trying to stay still and of course your foot on the pedal would be - if your foot is there -

...

Witness Alden: It is just a simple matter of inertia. If your body is there and the car suddenly moves relative to you, then there will tend to be a relative movement and that, you know, if - unless the person reacts very quickly, that could cause an acceleration." (emphasis added)

Mr Jamieson agreed with this scenario. Mr Taylor also agreed, although he added the caveat "but I am a structural engineer".

It is important to isolate the steps in Mr Alden's explanation. He describes the car being reversed and the undercarriage catching on the wheel stop. Twice in the above extract he states that some sort of force was then applied as the car was caught on the wheel stop ("[a]nd that at some point of load being applied"; "applied some sort of force to the wheel stop"). While not clear, it seems that the only sort of force that can be applied at that point is the depression of the accelerator. As the car was encountering resistance it would be unlikely to exert such force in an idle state. The questioner then elicits from him the suggestion of an involuntary and strong (further) depression of the accelerator which is presumably meant to account for the loud revving heard by Ms Lee.

Thus, on Mr Alden's theory, after the car reversed further back into the car space two levels of accelerating force were applied. Mr Lee would have had to first apply some force to the accelerator when he encountered resistance and then a greater level of force would have been applied involuntarily when the wheel stop gave way.

Three points about this theory should be noted. First, to an extent it is consistent with the primary contention of both Carlton and the Council, namely that, at a point after the vehicle came to a stop, Mr Lee applied accelerating force. Second, the theory addresses why force was applied after the vehicle came to a stop, namely because the undercarriage of the car caught the wheel stop. I address this aspect of the theory below and accept it. Third, overall the theory involves three levels of revving of the vehicle, namely the low level of revving as it reversed without accelerating force being applied (see [21]), a higher level of revving when Mr Lee applied force when the car encountered resistance, and an even greater level of revving when the wheel stop gave way as Mr Lee's foot slipped.

Leaving aside this aspect of Mr Alden's evidence, the competing submissions direct attention to why the car stopped, what part of Mr Lee's vehicle came into contact with the wheel stop, and what was the mechanism by which the car passed either through or over the wheel stop.

In relation to the first issue, I have already noted Ms Lee's evidence that the car idled backwards without revving and then stopped before she heard further revving. The most likely explanation for those events is that the car encountered some resistance. If there was no resistance and Mr Lee was still dissatisfied with the position of the car he would have let it continue moving backwards rather than applying the brakes.

This undermines Mr Miller SC's contention that "Mr Lee drove up and over the wheel stop after he had already brought his vehicle to a stop when correctly positioned in the car spot". By "drove up" I understand this to mean he drove at the wheel stop from some (small) distance. However, if the car did not encounter any resistance in reversing, there was simply no reason for Mr Lee to put his foot on the accelerator. Instead the far more likely scenario is that some part of the car came into contact with the wheel stop at the point the car stopped.

The second issue is what part of the car came into contact with the wheel stop at the point it stopped? This is bound up with the third issue, namely the means by which the vehicle could have passed through or over the wheel stop.

Mr Alden's theory involved the vehicle catching on the wheel stop, rather than the vehicle mounting the wheel stop. As I have indicated, it is possible for the undercarriage of a vehicle to make contact with the type of wheel stops in use, although no specific tests were undertaken on a Toyota Camry. Sixteen days after Mr Wilmshurst visited the car park, another friend of Ms Lee and her husband, Andrew Gardyne, attended and took some photographs. A number of the photos show the top of other wheel stops in contact with or at least very close to contacting the undercarriage of other cars. Figure 3.10 of Mr Alden's report shows the undercarriage of a particular type of vehicle coming into contact with a wheel stop well prior to its tyres making contact with it.

In his oral evidence Mr Alden suggested that the undercarriage of the vehicle became caught on the wheel stop and rotated the northern end so that it became "a narrower obstruction so it is possible for the car, the wheels to miss it". When pressed, he qualified this by accepting that "if the car was approximately centrally parked in the bay, then at least one wheel would have had to pass over the wheel stop". However he added that it would require "some momentum in travel" before it could pass over.

In the joint report the engineers accepted that the vehicle had the "mechanical ability to climb over the wheel stop even when it is properly affixed", but added that the "movement of the wheel stop will certainly facilitate the ability of the vehicle to climb over it". This statement did not address whether the vehicle could mount the wheel stop if its tyres were immediately abutting it or could only mount the wheel stop if it had momentum when it struck the wheel stop.

In his report Mr Simpson stated that the radius from the centre of the Camry's wheel to the ground was 284mm. Mr Simpson concluded that the vehicle had the capacity to mount the wheel stop if it has acquired momentum before coming into contact with the stop, but also from standstill if the tyres abutted it. However, in oral evidence Mr Alden contended that there was an error in Mr Simpson's calculations of a factor of ten, and when corrected they support his conclusion that it was unlikely that both wheels of the car could mount the wheel stop if it was abutted against it. Earlier in his oral evidence Mr Alden addressed this, stating:

"... if you were travelling freely with enough velocity you could carry it over the wheel stop, but I don't think that's likely to have occurred if you actually had gone to the point where the wheel touched the barrier [ie the wheel stop] and at a standstill."

I accept Mr Alden's evidence on this issue.

As I have explained, Mr Alden's version described above at [47] necessarily involved the deliberate application of force by Mr Lee to the accelerator at a point after the car came to a stop. The defendants seize upon his doing so as demonstrative of contributory negligence. However this begs the question why the force was applied? The most likely explanation is that the car had stopped after encountering some resistance, yet Mr Lee felt he had not achieved his objective of reversing his car as far as he thought it should go. It also suggests that he did so in circumstances where the level of tactile resistance was not as great as what he would expect from, say, a properly functioning wheel stop. This could have been the case if some section of the car's undercarriage came into contact with any part of the wheel stop from its middle to its northern end. On this scenario if the back wheel of the car on the southern end travelled over the wheel stop then it would have some momentum at that point having travelled some distance.

An alternative scenario involves the rear wheels of Mr Lee's car abutting the wheel stop and then significant accelerating force being applied. This scenario has two difficulties. The first is that the level of accelerating force necessary to take the car over the wheel stop is significant, and the second is that it involves the car being placed further back into the car space when accelerating force is applied. If the wheel stop was level then, for the car to move, the back wheel would have to pass over the wheel stop. As explained by Mr Alden, to do so would have required the application of very significant accelerating force by Mr Lee, and even that was "unlikely". However, why would he do that? By this time the car would have been well back into the car space. Even if the wheel stop was not straight, he would have been encountering significant resistance from the wheel stop at its fixed end. The probabilities point away from this scenario. The further back that Mr Lee was when the car stopped, the more force that was required to pass over the wheel stop, yet the less reason there was to apply it. The probabilities point to the car reversing without accelerating force being applied, and coming to a stop at a point when the undercarriage of the vehicle came into contact with the wheel stop.

I have already described Mr Alden's theory, which involved two levels of accelerating force being applied after the vehicle stopped after reversing, one of which was intentional, and a greater level of force which was accidental (at [47] above). While I am satisfied that Mr Lee intentionally applied accelerating force, I am left unpersuaded that a further level of force was applied accidentally. It sits uneasily with Ms Lee's evidence.

Finally I note Mr Miller SC's contention that Mr Alden's proposition that the undercarriage of the car pushed the wheel stop out of the way does not "explain the scrape marks on the top of the wheel stop". To the contrary, they are completely consistent with it in that the scrape marks could have been caused by some part of the undercarriage of the car catching on the top of the middle or northern end of the wheel stop and by that means marking it.

(e) Conclusion

I am satisfied that when he returned to the car Mr Lee placed the car in reverse and allowed it to idle until it came to a stop. I am uncertain whether the wheel stop was in its correct position when the car pulled into the car stop. However, I consider it more likely than not that the car stopped when some part of the undercarriage of the vehicle came into contact with some part of the wheel stop at a point between its middle to the northern end. I so find. At this point Mr Lee applied some accelerating force. He did so because the car had not reversed as far back as he considered necessary. It is likely he did not encounter the tactile resistance expected from a wheel stop or similar barrier at that point. As a result of his applying accelerating force, the wheel stop rotated and the car moved backwards towards the railing.

I am satisfied that the northern back wheel of the car did not pass over the wheel stop. However I am uncertain as to whether the southern back wheel did so. I am not persuaded that some further revving may have occurred after the wheel stop gave way in the manner outlined by Mr Alden.

Consistent with the evidence noted at [37] to [41], the perimeter railing was wholly inadequate. It simply gave way under the car's force.

(f) Some causation findings

At this point it is appropriate to note some of the evidence concerning whether an adequately constructed wheel stop and perimeter fence would have prevented Mr Lee's accident.

As noted, in their joint report the engineers recorded their agreement that if the wheel stop had been properly located and fixed then the vehicle would still have been capable of mounting the wheel stop. However, I have also noted and accepted Mr Alden's qualification on this in relation to the circumstance where both of the car's back wheels were abutting the wheel stop. Further, it follows from the findings I have made that, if the wheel stop had been properly affixed to the floor of the car park, then it would have provided the necessary tactile response when Mr Lee's vehicle came into contact with it. In those circumstances, I accept that Mr Lee would not have applied accelerating force and the accident would not have happened.

In their joint report the engineers recorded being asked whether it would have been preferable to construct the perimeter barrier with concrete rather than a steel railing. All the engineers agreed that the perimeter barrier could have been constructed with concrete or metal railings and complied with the 1981 Standard, but that this barrier did not. They also agreed that a concrete barrier of the kind that was suggested in certain drawings placed before Council (date-stamped 24 February 1986, 5 March 1987 and 8 April 1987; see [259]ff below) "would have arrested the progress of the vehicle".

What if the barrier had been constructed using a railing, but also in conformity with the 1981 Standard? Would it have prevented the accident? In his report, Mr Alden identified a potential deficiency with the 1981 Standard being that it did not address the effectiveness of a barrier to absorb energy. Thus he addressed the position based upon the exterior barrier being constructed of concrete which he stated "would have moderate ductile capability". Mr Alden calculated the force exerted by Mr Lee's vehicle on impact as 20.9 kilonewtons based on the assumption that it was travelling at 1.9m per second and other assumptions as to the dissipation rate of energy across a concrete barrier. He stated that the force nominated by the 1981 Standard as to what should be resisted was 33.1 kilonewtons.

In the joint report the engineers agreed that the likely speed of the vehicle on impact with the fence was "of the order of say up to 5kph" or 1.39m per second. I suspect, but am not sure, that metal is more ductile than concrete. Even if it was less, it still seems likely that the collision of Mr Lee's vehicle with such a railing would not destroy a metal railing that conformed with the 1981 Standard. I am satisfied that, had a perimeter barrier been constructed using metal railings but in conformity with the 1981 Standard, then the accident would not have occurred.

(2) The car park

The car park is attached to the Carlton Crest Hotel (the "Hotel"). The Hotel has approximately 250 rooms. The car park extends over at least eight levels. Carlton's chief engineer, Mr Aung, stated that the car park held approximately 500 cars, but the Hotel's manager stated its capacity was 600 cars. Nothing turns on this. Mr Aung stated that in 2006 the Hotel was usually fully booked and the car park was often full. Carlton acquired the Hotel together with the car park in August 1996.

(a) The photographs of other railings and wheel stops

I have already referred to the photographs taken by Mr Wilmshurst six days after the accident. When he attended, Mr Wilmshurst observed that there were a number of wheel stops lying on their side or otherwise out of position. This is supported by one of his photographs which shows a row of eleven car spaces on one of the levels. The photograph depicts three adjacent wheel stops completely unattached from the floor and turned on their side. One of Mr Gardyne's photographs appears to show the same wheel stops although they have moved since the time that Mr Wilmshurst first attended.

As previously noted, the external metal railing that failed Mr Lee was also used as an external barrier to other parts of the car park. Mr Wilmshurst took photographs of the attachment points for the vertical rail posts for some of these railings. In one of the photographs the distance between the edge of the horizontal plate attaching the vertical railing to the floor of the car park and the edge of the concrete was only 48mm. With a number of these attachment points Mr Wilmshurst observed large gaps between the bottom of the plate and the concrete floor, and that there was no "sign of concrete or grout packing". Mr Taylor also observed cracking in the slab near the point where a railing is attached to the concrete floor, and noted that this would reduce the load carrying capacity of that railing.

Some of Mr Wilmshurst's photographs are taken from outside the car park. They show a clearly visible bent and damaged railing on one of the upper floors. Mr King SC addressed these photographs in his written submissions:

"The deformation in one of the railings shown in the photograph looks more like a downward deformation than an outward one as the expert evidence orally agreed, and it could conceivably have been brought about in the space of time between the accident and the taking of the photograph. Somebody trying to unload something and dropping it could have caused it. In any event, a member of the first defendant's staff observing this damage comfortably before the accident would have been entitled to conclude that it was a demonstration that the railing could withstand a degree of impact, especially if there were some outward rather than downward deformation."

As noted, the photograph was taken six days after the accident. In circumstances where I am satisfied that there was no system of inspection for such defects in place (see below) and the car park has been in operation for over a decade, the likelihood is that this defect existed well prior to Mr Lee's accident (Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [34]). The deformed railing depicted in the photographs is the second from the bottom. It is dented downwards. The railing immediately above it is not dented. It is possible to conceive of something being taken out of the boot of a car and being dropped at a particular angle so as to cause the indentation, but it seems very unlikely. This theory was not taken up with any of the engineers.

In his evidence Mr Jamieson suggested that the dent could have been caused by "a vehicle backing into it and causing some wedging effect", possibly a "tow bar". I accept Mr Jamieson's assessment as representing the most likely cause of the dented railing. Otherwise, it is true that if any Carlton employee had noticed it they might have concluded that that railing could "withstand a degree of impact" (although none said they did). However they should have also concluded that it was weakened, and wondered how it was caused in the first place.

Two of Mr Gardyne's photographs show obvious stretching of the connection between some exterior railings. It is apparent to any observer who noticed that the capacity of that railing to resist force is diminished.

The deficiencies with the wheel stops and grouting described above appear to be relatively long-standing, although it cannot be concluded that they date from the time of construction. However, attached to Mr Taylor's reports were photographs of two anchor bolts attaching the base plates of a metal railing to the floor of the car park. The bolts are skewed. Mr Alden considered that these bolts were not installed correctly. Mr Taylor also identified and photographed an inadequately welded base plate.

In his report Mr Alden stated that the dislodged wheel stops, gaps under the base plates, incorrectly installed anchor bolts and concrete cracking at and adjacent to the base plates were "clearly visible". However, visible from what distance and for what period? The dislodged wheel stops would have been obvious to anyone who walked in the vicinity of the car parking spaces. It is likely that at least some of them were dislodged for a significant period prior to the accident. The incorrectly installed anchor bolts would be noticeable from a distance of at least 1 to 2 metres, although the viewer would most likely need to be inspecting the railing. The same applies to the gaps under the base plates and concrete cracking. The deficiencies in the installation of the two anchor bolts and the welded base plate most likely date back to the construction of the car park, and I so find. There is nothing to suggest that railings were repaired or reinstalled sometime after construction. It is not clear whether the gaps under the grout plates date back to the construction of the car park. They are certainly not recent, but I cannot conclude that they were present at the time of installation. The same applies to the cracks in the concrete near the base plates.

(b) Joe Yurdakul

Joe Yurdakul knew Ms Lee through her vocation as a speech therapist. Some time after the accident he was speaking to her and realised that her husband's death had occurred at a car park that he had used for many years. He said that on one occasion in 2005 he had parked at the car park and found himself close to the edge and held onto the railings for support. He said that "[a]s soon as I touched the railings, they swayed and I realised they were not secure". He said the railings swayed at least "5cm".

In his statement Mr Yurdakul said he then spoke to the cashier about the unsteady railings. The relevant part of his written statement was as follows:

"... As I had a small child I was worried about the unstable railings. I told the cashier, whom I think was called Vito, where in the car park it had happened and warned him of the loose railings. The cashier said to me in words to the following effect 'the whole place needs to be looked at'. He subsequently took my telephone number and informed me that he would 'let the management know and get them to call you'. I received no calls from the managers of the Carlton Crest Hotel or the car park." (emphasis added)

Mr Yurdakul also stated that about two months later he parked at the cark park. He noted that the "railings were swaying in the wind on a rainy, windy day".

When the statement was tendered objection was taken to the italicised portion set out in [82] above. I rejected it. Mr Yurdakul then gave oral evidence. He was asked about this conversation. He said that:

"I approached the cashier and explained the circumstance of what I just experienced [ie the unsafe railing] and he advised, he took my name and number down and he said that I would expect a call from Vito."

In cross-examination Mr Yurdakul was taken to the inconsistency between his statement and his oral evidence as to which person was called Vito, being either the cashier or the manager. (This cross-examination had the effect of reading back into evidence the italicised portion of his statement set out in [82] above.) Mr Yurdakul struggled to explain the discrepancy, although he ultimately explained that when he made the statement the name that "stuck in my head was Vito", and added that it was possible that the person who he was told would call him was "the same individual that was taking cashier payments on the day". Ultimately it was put that Mr Yurdakul made his evidence up in an effort to assist Ms Lee's case. I address the challenge to Mr Yurdakul's evidence below.

(c) Huseyn Salicioglu

Huseyn Salicioglu was working as a cashier at the car park at the time of Mr Lee's death. He said he reported it to the duty manager, Vito Ricapito.

Mr Salicioglu had worked at the car park part-time since 2001. He stated that he had parked in the car park in that time and observed the car stops and perimeter safety rails. In his statement he said that "they were in a satisfactory state and I did not have any concerns about them from a safety point of view or concerns of any kind". He denied ever having received any complaint or adverse comment about the safety of the car park. He said that if he had received a complaint he would have passed it on to a person "at the hotel concerned with maintenance of the car park". He recalled there was such a person but could not recall their name.

He also recalled that "[m]aitenance or engineering personnel did come to the car park on what were obviously inspection trips". However he was asked in cross-examination whether he observed Carlton's chief engineer, Mr Sandy Aung, carrying out inspections of the car park. He denied that he did so.

In cross-examination, and after some prompting, Mr Salicioglu accepted that if anyone asked him to report something to the manager he would tell them that he would pass it on to "Vito". He denied receiving a complaint that the metal railing was unsafe. He said that if he received a complaint about someone breaking into a car he would fill in a form, but otherwise if he received a complaint about a defect with the car park he would not write it in a book, and otherwise had no system of recording complaints.

Mr Salicioglu also explained that in 2005 and 2006 he usually worked afternoon shifts and another person worked the morning shifts. That other person still worked for the hotel. He said that on occasions there were other people working as cashier on the morning shift. No other cashiers were called to give evidence.

(d) Vito Ricapito

As at 2006 Mr Ricapito was the assistant manager of the Hotel. He had worked for Carlton at the Hotel since 2004. He disclaimed responsibility for the car park and said he had no involvement with its "maintenance, upkeep, supervision or repair". However, he stated that he would usually undertake a "security patrol" at least once a shift. He said that to his observation the "perimeter safety guardrails" did not appear to be "anything other than solid and safe", although he never applied any physical force to them. In cross-examination he clarified that this conclusion was only based on visual inspections from no closer than 15m. I have already noted that one of the railings was visibly damaged from what appeared to be a collision with a vehicle (see above at [75]).

Further, in cross-examination Mr Ricapito stated that during his inspections he did not notice any wheel stops out of position, but if he had he would have contacted the engineering section. He was shown various pictures of wheel stops out of position and agreed he would have reported those. He stated that his inspections were "more like security, making sure there were no spills". He called it "housekeeping". He said that he did not walk along the area between the cars and the edge railings.

When cross-examined by Mr Miller SC, Mr Ricapito accepted he "may have occasionally" walked in the area between the cars and the external railings. He stated that he parked in the car park during this time. He was then questioned as follows:

"Q. And despite parking there five days a week, you never once saw wheel stops out of position or toppled over in the way that they are shown on the photographs that you have been taken to?

A. I may have but I wouldn't have known what to do.

Q. When you say you wouldn't have known what to do, you might have seen them but if you had seen them it wouldn't have been something that would have been of terrible importance or consideration for you to take any action?

A. No.

Q. As long as they were lying approximately in the position that they should have been in, that was good enough?

A. Probably, yeah. Unfortunately."

(e) Sandy Aung

Sandy Aung was employed by Carlton as the Chief Engineer of the Hotel from August 2004 to 2009. In his statement Mr Aung stated that he had noticed a "few" of the wheel stops had "tipped over" but recalled they remained in position. He thought that they would have "been struck by the wheels of any car comfortably before it was at risk of striking the barrier". In oral evidence he explained that the wheel stops were extremely heavy. He said they were not meant to operate as a barrier but instead to provide "an indication" to the driver.

In his statement Mr Aung said that he had seen "no need to institute safety checks or testing of the concrete wheel stops or perimeter barriers". He continued:

"Prior to the incident I had seen no need to institute safety checks or testing of the concrete wheel stops or perimeter barriers. Inspections of the wheel stops and perimeter barriers by my staff were made visually. Occasionally members of the staff would lean against them putting some weight on them. There was never any sensation of insecurity reported to me or observed by me.

At all times preceding 5 March 2006, the perimeter barriers in the car park building had given the appearance of being solidly and safely secured. No one, including both staff and members of the public, had ever voiced any concerns [to me] about the perimeter barriers. [I never observed] any sign of impact damage affecting them, or any damage at all." (emphasis added)

The concept of "my staff" as discussed in these passages needs to be explained further. Mr Aung was trained as a marine engineer. He said that his department consisted of five full time staff, but he was the only person in the maintenance department with engineering qualifications. The remainder were labourers or had a "handyman type of a qualification".

In the first paragraph of the above extract Mr Aung stated that prior to Mr Lee's accident he had seen no reason to institute safety checks or testing of the concrete wheel stops or perimeter barriers. Whatever force this assertion had soon evaporated. Under cross-examination he explained that he did not have any responsibility for the car park, and that the only role of his department was to undertake minor repairs if requested, such as changing light bulbs.

Mr Aung was pressed concerning his assertion that the barriers and wheel stops were inspected. He stated that he never saw that happen. He was then pressed on whether he heard his staff say they had inspected those items. He did not hear them say that they did. In answer to questions from the Court he stated that he had placed his hands on "some of [the rails], one or two or three" over the period he was employed, but he was never advised by his staff that they had done so.

Mr Aung was asked whether anyone with engineering qualifications ever inspected the car park during the period he was employed by the Hotel. He said that he was not aware, but added that "I was in charge of the hotel side of it, and I'm not in charge of the car park side of it, so I am not aware of what the car park has been doing". He stated that the car park "has their own management". He said they never requested his advice about whether Carlton should engage an independent engineering consultant or about what should be observed during maintenance inspections. Ultimately he stated that "I never get involved in any car park matters".

In cross-examination Mr Aung agreed that if a car collided with the railing at speed it could fail completely. He was asked whether reduced force was required if the railing "was a bit loose". He asserted that the "car cannot hit the barrier without hitting the slab on the floor [ie the wheel stop]". However he agreed that one of Mr Gardyne's photographs showed a wheel stop out of position such that the car would hit the railings without moving the wheel stop. He also accepted that one of the photographs showed the base plate for a railing was not properly connected to the concrete floor and rendered the railing "fundamentally unsafe".

(f) Bobby Toh

Carlton tendered a statement from Bobby Toh dated 10 March 2006. Mr Toh was the general manager of the Hotel from July 2004. Mr Toh had passed away by the time of the hearing. He stated that "[a]t none of the Hotel's OH&S meetings had any issues been raised by any member of staff or any outside agency, that there were problems with the design and construction of the perimeter safety rails". His statement recounted his belief that the perimeter railings were safe.

(g) Kanwarpreet Kanwar

Carlton tendered a statement from Kanwarpreet Kanwar dated 15 July 2013. Mr Kanwar was Carlton's Revenue and Car Park Manager during the period June 2004 to May 2006. From 2001 to June 2004 he was employed as the Business Unit Manager - Car Parks. Mr Kanwar was in Pakistan during the hearing. His statement was tendered without his being called on the understanding that the inconvenience of adjourning the proceedings to call him was not justified, but that the other parties did not have the opportunity to test his evidence in cross-examination.

Mr Kanwar stated that cleaning contractors were engaged to clean the car park twice per day. He also said security staff patrolled the car park out of hours. He said that if any "damage or maintenance issues" were identified by the cleaners or security they would be reported to him. He said the cashiers would conduct inspections a "couple of times per day" and "make similar reports if required". He said if the reports required action they would be reported to Mr Aung.

Mr Kanwar also stated that "monthly OH&S meetings" were held. He said that no concern was raised at any of those meetings concerning the perimeter rails. He denied that, at any time prior to 5 March 2006, he had received any comment from either staff or customers regarding the perimeter barriers. He also stated:

"I had always considered that the perimeter barriers had been properly and safely installed. They appeared sound to visual inspection and felt sound if you leant against them. I did not ever see any indication that one of them had been damaged or loosened through being struck by a vehicle or otherwise.

In relation to the concrete wheel stops, to visual inspection it was apparent that some of them had tipped over but to my recollection they were all in position. This was not surprising to me. Although I had never weighed one of them they seemed very heavy ..." (emphasis added)

This extract only emphasises the problems with Carlton's maintenance system. The photographs described above demonstrate that the perimeter railings were not sound on "visual inspection", regardless of whether the inspection was undertaken up close or from a distance. As I have stated, one of the perimeter railings had an obvious dent that was visible from the ground outside the car park. Mr Kanwar's denial that he had seen any of them "damaged ... through being struck by a vehicle or otherwise" is flatly contradicted by that photograph. If any reasonably close inspection of the perimeter barriers had been undertaken it would have revealed all of the defects that I have identified above. Otherwise, the wheel stops were clearly not "all in position".

The above extract from Mr Kanwar's statement suggests that he leant against the barriers at some point, but he does not state whether he leant against all of them. If he had, then he could not have missed the various defects identified in the various photos that I have described.

It is not necessary to dwell on this further. Due to the difficulties I have identified, I attribute no weight to Mr Kanwar's assertions concerning the safety of the perimeter railings.

(h) Findings

Carlton's witnesses did not advance its case. To the contrary they damaged it. When confronted with the state of the car park as revealed by the photographs, both Mr Ricapito and Mr Aung disclaimed responsibility for its maintenance. I have just outlined the difficulties with Mr Kanwar's evidence.

In the end result I am satisfied that there was no system of inspection of the car park to detect maintenance or structural defects such as the loose wheel stops or the problems with the railings that I have identified. The only "system" identified in the evidence is that noted by Mr Kanwar which involved security personnel and cleaning staff.

Further, I am satisfied that there was never a structural inspection of the car park by an engineer or anyone with building qualifications in the period after its acquisition by Carlton. None of the witnesses asserted there had been such an inspection. If there had been, I expected that any competent inspection would have identified the various deficiencies in the railings and wheel stops that have already been discussed.

This brings me to the two relevantly contested aspects of Mr Yurdakul's evidence, namely, that he leant on a loose perimeter railing (and noticed one swaying in the wind), and that he advised a cashier to that effect. In relation to the former claim, there was no direct evidence from Carlton establishing that any member or members of staff had checked all the perimeter railings. Having considered the matter, I accept Mr Yurdakul's evidence in that respect. It is consistent with the generally lamentable state of at least some of the perimeter railings, as revealed by the photographs.

I also accept Mr Yurdakul's evidence that he advised a cashier on what he encountered when he leant on the railings. I accept that he contradicted himself between his written statement and oral evidence as to whether the cashier's name was "Vito", or the person to whom the cashier would report the complaint was called "Vito". At the time Mr Yurdakul gave his evidence I formed the impression that he was clear in his recollection that he told the cashier, but confused as to what the cashier said he would do with the information. That impression has only strengthened over time. Carlton's evidence did not suggest that any such complaint would be taken seriously. Mr Yurdakul attributed to the cashier the statement "the whole place needs to be looked at". This comment reflects the reality of the state of the car park.

I am, however, not prepared to find that Mr Salicioglu was the cashier that Mr Yurdukal spoke to, or that any such complaints were passed on to Mr Ricapito. With the latter, there was no system for recording complaints or comments of that kind. Nevertheless I am satisfied that members of Carlton staff were specifically aware that wheel stops had become unfixed and were out of place. I also infer that Carlton staff must have noticed that at least one of the perimeter railings was damaged, being the railing described above at [75]. However, there was no evidence that any of Carlton's employees were aware that the wheel stop at the location of Mr Lee's accident was not fixed at one end, or were aware or warned that the particular railing that failed in this case was incapable of providing any real resistance to an impact.

(i) Expert evidence as to inspection regime

In their joint report the four engineers were asked whether "[h]aving regard to the role of [Carlton] as the owner and occupier of the car park ... what preventative measures might have been taken by ... [Carlton]"? They responded:

"Normal maintenance would have involved periodic inspections, which should have detected problems with the metal barrier base fixings [as described in Mr Alden's report at figure 4.4] sufficient to call in a structural engineer. This should have resulted in the structural problems with the metal barriers being identified and addressed ... Likewise normal maintenance inspections should have identified problems with the fixings of wheel stops (due to displacement of these at various locations), prompting rectification works."

Mr King SC's submissions asserted that the engineers, especially Mr Alden, were suggesting the car park be inspected "annually by a structural engineer". This is not what is stated in the above nor in his report. Instead, Mr Alden stated that in his experience part of a maintenance regime "typically involves monitoring the structur[al] elements of the building through periodic inspections". He stated that if any problem was identified, a structural engineer could then be consulted. Mr Alden nominated a typical inspection interval as one year, at least for a building that had been constructed a number of years previous.

In the above extract from the engineers' joint report the authors considered that the outcome of a building inspection would have been to reveal sufficient structural problems to warrant calling in an engineer, and that this would have led to those problems being "identified and addressed". For the sake of completeness I note that in his oral evidence Mr Alden expanded upon what an engineer would have concluded had she or he inspected the railing, stating:

"I think I did give evidence before that an engineer, being asked to look at the connection of the railing to the floor, would have, in order to look at that, would have had to give consideration to the required capacity and that would have, in my opinion, led him to the conclusion that that was only ever meant to be a pedestrian railing. It was certainly not robust enough to be considered a vehicle barrier." (emphasis added)

Whether the discharge of Carlton's duty of care required the undertaking of regular inspections of the fabric of the car park and, if so, by whom is a matter I will address next. At present the significance of this evidence is that the uniformity in the engineers' opinion demonstrates two matters. First it demonstrates what would have been revealed by a maintenance inspection, namely "problems with the metal barrier base fixings" as well as the wheel stops. Second it demonstrates that if an engineer had inspected the premises they would have identified a number of substantial structural problems with the railings, especially their non-compliance with at least the 1981 Standard, and recommended that those wider structural problems be addressed.

(3) Is Carlton liable in negligence?

There was no dispute between the parties that Carlton owed both Mr and Ms Lee a duty of care, although the scope and content of that duty was very much in dispute. Paragraph 14 of Ms Lee's Amended Statement of Claim ("ASOC") pleaded a vast number of particulars of negligence on the part of Carlton which also constitute "precautions" for the purposes of ss 5B and 5C of the CLA. However Mr Cavanagh SC's written submissions only identified six matters which he submitted Carlton was required to undertake, namely:

(v) Other material

Carlton tendered a document indicating average speech pathologist salaries for the capital cities for the period 2012-2013. In the Sydney area the average wage for a speech pathologist is $75,000 to $100,000.00, and for a speech pathologist grade 1-2 it is in the range age of $54,000 to $78,000.00. The designation "speech pathologist grade 1-2" was not explained by the evidence.

It seems that this document is the source of the figures nominated by Carlton as Ms Lee's earning capacity but for her husband's accident. These figures only relate to salaried speech pathologists. However, I accept Ms Lee's evidence that, absent her husband's death, she would have pursued a significant amount of contract work.

(vi) The Plaintiff's submissions

Mr Cavanagh SC's written submissions in respect of past economic loss divided the time up to the hearing into two periods. The first was for the period from the accident to June 2008. He submitted that it should be assessed on the basis that Ms Lee was working "to 50% of her capacity", and that the Court should allow $40,000 for that period. Given that the period covers approximately 27 months this assumes that, but for the accident, Ms Lee would have earned approximately $36,000.00 per annum net of tax.

On the basis of Ms Bloom and Ms Purcell's evidence, Mr Cavanagh SC submitted that Ms Lee's past economic loss from June 2008 to date of judgment should be assessed on the basis that she would have exclusively undertaken "private" work from the end of 2008. He submitted that such work was available in abundance. He submitted that she would have earned approximately $1,500 "net" per week up to 30 June 2011 and $2,000 net per week thereafter. I understand these figures to be net of expenses and tax.

In relation to expenses Mr Cavanagh SC's written submissions asserted:

"The expenses in conducting the business are limited. They consist of petrol and buying some toys and books. They could not be more than 10% of the income."

In relation to the future, Mr Cavanagh SC adopted a net figure that corresponded to three times average weekly earnings (CLA, s 12(2)) and projected it over the remainder of Ms Lee's working life, with a deduction for vicissitudes. From this he deducted the amount of $667 (after tax) which was said to represent her current earnings.

(vii) Carlton's submissions

Carlton accepted that Ms Lee has been working twenty hours a week for a significant period. It "accepted" (or submitted) that this translated to a 50% impairment of earning capacity and that past loss of earning capacity should be calculated on a "stepped up gross figure at 50%".

Carlton submitted that Ms Lee's gross income at the time of her husband's death was $50,000 per annum, although the source for this was an accountant's report which was not tendered. Otherwise it submitted that only a modest increase in income to $75,000.00 up to the time of the trial should be allowed. In respect of future economic loss, it submitted that it should be calculated on the basis that her income would have risen to $100,000.00 seven years hence. Carlton pointed to the absence of any evidence in relation to the expenses involved in supplying speech pathology services under contract, and the absence of any evidence that either Ms Bloom or Ms Purcell earned the level of income sought on behalf of Ms Lee. Carlton also sought a deduction for vicissitudes of 25% to allow for the prospect of improvement in Ms Lee's condition.

(viii) Resolution

It is evident from [479] and [483] that there was little difference between the parties in respect of the period up to 30 June 2008. As noted, Carlton was prepared to concede that Ms Lee's income was $50,000 gross. The only evidence capable of rebutting that concession is Ms Lee's taxation returns, which suggest that if her income was doubled it would be slightly less than that amount. Nevertheless I will act on Carlton's concession. Ms Lee's past economic loss for the period up to 30 June 2008 should be assessed on the basis that, absent her husband's death, she would have earned $50,000 gross per annum, but she was only able to earn half of that amount.

From this point the parties diverge sharply. I accept Ms Lee's evidence that, absent her husband's death, she would have commenced undertaking contracting work from around the middle of 2008. It is supported by the fact that she did do that in the events that happened. However I consider it likely that she would have continued with some part time employment, given the job security it provided, but the mix between contracting work and employed work was likely to be more tilted towards the former had her husband not died.

Further I found Ms Bloom and Ms Purcell's evidence as to the high level of demand for speech therapy services for children diagnosed as being on the autism spectrum, that has prevailed since at least 2008, persuasive. I accept it. I expect that the level of demand will continue, although whether it will be able to be satisfied by State funding and, if so, to what extent, are obvious adverse contingencies affecting whether that demand can translate into earning potential for professionals with Ms Lee's skills.

As noted, Carlton submitted that none of the speech pathologists that were called gave evidence as to having received a gross income above the amounts that it identified (at [477]). However, as its submissions recognise, Ms Purcell had family commitments which preclude her working full time ("lifestyle choices"). Ms Bloom repeatedly referred to other practitioners who were in the same position. No doubt the flexibility and more lucrative nature of such work is what makes it more attractive to those practitioners, even if the employment is less secure. However, for the reasons already outlined, this aspect of the assessment is not to be approached on the basis that Ms Lee's ability to work full time might have been compromised by the possibility that she had competing family responsibilities.

However the principal difficulty with Mr Cavanagh SC's formulation of Ms Lee's case is his assertion that the level of expenses associated with undertaking contract work is minimal. From that premise he seeks to use Ms Bloom and Ms Purcell's evidence to demonstrate that, absent the accident, Ms Lee could have received a very high level of contract income. He then uses that contract income as the basis for determining past economic loss and for submitting that, in the future, her net income before tax would exceed the figure in s 12(2) of the CLA.

However the premise was put in issue by Carlton and has not been made good. The only material concerning the level of expenses incurred in providing speech therapy services under contract are the accounts for Alpha Nova included in Ms Lee's taxation returns, which are summarised above. Even removing some of the items such as depreciation on a motor vehicle which may represent a benefit available to Ms Lee that may not be claimable if she was employed, those expenses are still relatively high. While the oral evidence suggests that, as a general proposition, full time contracting can be expected to yield a higher income than an employed position, I cannot accept that the differential between paid employment and contract work is of the degree suggested by Mr Cavanagh SC.

This difficulty is exemplified by the calculations Mr Cavanagh SC includes in his submissions. These involved the deduction of Ms Lee's actual income from a projected income calculated using a bottom up assessment based on Ms Bloom's estimate of the contract income Ms Lee could receive, with a low level of deductions for expenses. However, as best as I can ascertain, the figure for her actual income includes contract income that has been reduced by deducting a large amount of expenses whereas the latter does not. Why should different approaches to expenses be adopted when comparing hypothetical income but for the accident with income that was in fact earned?

In my view the appropriate course is to make an assessment of Ms Lee's income after expenses but before tax had the accident not occurred, and then allow recovery of the net (of tax) equivalent of 55% of that amount. The figure of 55% reflects the fact that she is physically only able to work half a full time load, and my acceptance of Ms Lee's evidence that her health problems make her now more inclined to take less lucrative employed work rather than contract work. Further this approach avoids having to closely interrogate her taxation records to assess the true value of her earnings, an exercise that was not undertaken by any of the parties. Nevertheless a comparison of her actual pre-tax income with 45% of the figure determined to be her income after expenses but before tax provides a form of reality check for the figures derived for the past period.

I have already accepted a notional starting point for Ms Lee's salaried income of $50,000.00 as at the date of the accident. Allowing for a slightly different mix of paid employment and contract work from 1 July 2008 to the time of the judgment to that which occurred and, bearing in mind the expectation that contract work would exceed the salary ranges suggested by Carlton, I consider that the assessment of Ms Lee's earning capacity but for the accident from 1 July 2008 to the date of judgment should be based on an average annual figure of $85,000.00, net of expenses but before tax. As time progressed it can be expected that Ms Lee's practice would have continued to build. As relationships with schools and clients grew, so could the level of referrals and fees charged. Forty-five per cent of that figure is $38,250.00. That amount is generally in the range of her actual income, allowing for the benefit she derived from some of the matters the subject of her expense claims.

In respect of the future, I consider that the figure of $100,000.00 per annum net of expenses but before tax should be adopted for three years, and thereafter $115,000.00 should be utilised. This represents an amount above the salaried figure nominated by Carlton and reflects the undertaking of contract work by a person with Ms Lee's skills. This resultant loss of 55% converted to an amount net of tax should be calculated to an expected retirement age of 67 with a deduction of vicissitudes of 17.5% to reflect that contingency noted in [487] and the limited potential for her to recover (see [445]). These figures accord with my assessment of Ms Lee's most likely future circumstances (CLA, s 13(1)). Subsection 12(2) of the CLA is not engaged.

(e) Nervous shock claim: Past domestic assistance

This was agreed at $40,400.00.

(f) Nervous shock claim: Future domestic assistance

Ms Lee sought an amount for the future based on four hours a week at $40 per hour for cleaning services. Carlton contended that the appropriate figure was two and half hours per week, as that was the basis for agreement as to the figure for past domestic assistance, with the real dispute concerning the amount of services provided by Mr Lee for the benefit of Ms Lee, a matter addressed below (at [535] ff). I am not persuaded that an allowance for anything beyond two and half hours for cleaning has been made out. Thus, the amount for future domestic assistance should be calculated on the basis of $100 per week.

(g) Nervous shock claim: Past out of pocket expenses

These were agreed in the amount of $53,882.00.

(h) Nervous shock claim: Future out of pocket expenses

Ms Lee sought an amount for future out of pocket expenses of $186,343.00. The basis for that figure was set out in Mr Cavanagh SC's written submissions as follows:

"The Plaintiff will require approximately 6 to 10 psychiatric consultations annually at $350 each ($53.85 per week), 8 to 10 psychology sessions annually at $230 each ($46.44 per week), medication at $33 per week; making a total of $133,29 in weekly recurring expenditure (apply the 944.5 multiplier) plus admissions to hospital from time to time at $15,750 ($750 per day for 3 weeks), say 3 times, occasionally day patient programs at $400 per day over a 10 to 12 week cycle, say $4,400 on 3 occasions total: $186,343." (emphasis added)

Carlton only took issue with the amount sought for admissions to hospital and day patient programs. It submitted that the only evidence bearing on the likelihood of any need for such amounts was part of one of Dr Cassidy's reports, and these amounts should only be allowed as a contingency.

The relevant part of Dr Cassidy's report dated 22 February 2011 addressed the likely treatment that Ms Lee would require, stating as following:

"From time to time [Ms Lee] will need admissions to hospitals. ... [Ms Lee] may be referred to Day Patient Programs which are charged at between $350 - $450 per day. These typically occur over a 10-12 week cycle and she may require these on an annual or biannual basis as an adjunct to her treatment." (emphasis added)

In the six years since her husband's death Ms Lee has already been hospitalised. The assessment of her future expenses involves a projection of the medical expenses Ms Lee was likely to incur for the remainder of her life. This is to be undertaken in circumstances where I have found that her prospects of recovery are low. In my view a calculation based on three hospital admissions and three day patient programs properly reflects the contingencies associated with the items claimed.

I accept the plaintiff's figure.

(9) Damages under the Compensation to Relatives Act 1897 (NSW)

As noted, Ms Lee also brings an action under the Compensation to Relatives Act 1897. She is the only person eligible to bring such an action in respect of Mr Lee's death (s 4(1)). Subsection 3(2) enables the recovery of funeral expenses. In this case they are agreed at $10,249.00. Otherwise, s 4(1) entitles her to recover such damages as are "proportioned to the injury resulting from such death".

In De Sales v Ingrilli [2002] HCA 52; 212 CLR 338 ("De Sales") Gleeson CJ summarised the principles applicable to recovery under the Compensation to Relatives Act 1897. First, his Honour noted that "damages are calculated by reference to the pecuniary benefit[s] that could reasonably have been expected from the continuance of the life had death not occurred" (at [11]). Second his Honour noted that "damages for injury are calculated on a balance of pecuniary gains and losses consequent upon the death" (at [11]). Third, the claim for the loss of the expected benefit is not restricted to the loss of direct financial support, but extends to the "value of services the deceased would have provided around the home" (at [13]).

Further Gleeson CJ described the "three main elements" of the assessment for the amount of damages referable to the loss of a reasonable expectation of a pecuniary benefit as follows (at [14]):

"Calculating damages for the loss of a reasonable expectation of pecuniary benefit usually involves calculating a primary sum and then making such further adjustments or allowances as are necessary to produce a result that gives a true reflex of the loss. The nature of such adjustments and allowances will be influenced by the manner in which the primary sum is calculated. In a case like the present, there are three main elements in determining the primary sum. Each element involves speculative judgments, which cannot be made with accuracy. The court assesses what benefits the deceased would have brought to the family, in the form of either income or the provision of services. The court determines the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime. And the court determines the period for which a relative could reasonably have expected to receive the benefit." (emphasis added)

At the time of the hearing the parties made submissions on the assumption that a determination of the benefits that Mr Lee would have brought to his relationship in the form of income was to be determined on the basis that an assessment of Mr Lee's earnings but for his death were limited to three times average weekly earnings by the operation of s 12(2) of the CLA. As at the date of judgment the amount referred to in s 12(2) is approximately $174K. This assumption was consistent with the Court of Appeal's decision in Taylor v The Owners - Strata Plan No 11564 [2013] NSWCA 55; 83 NSWLR 1. However, after the hearing, the High Court published its judgment on the appeal from that judgment (Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 ("Taylor")). Mr Cavanagh SC made a brief submission in respect of Taylor. Carlton did not provide any further submissions.

In Taylor, the High Court held that with a claim under the Compensation to Relatives Act1897 the reference to the "claimant's gross weekly earnings" in s 12(2) of the CLA was not a reference to a deceased's earnings (at [41] per French CJ, Crennan and Bell JJ). It would follow that s 12(2) only imposes a limit on Ms Lee's earnings in determining the amount she recovers for the loss of expectation of future benefit (and her nervous shock claim). This could affect, in a manner beneficial to Ms Lee's case, the assessment of the second element described by Gleeson CJ in De Sales, namely "the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime". However, as I do not accept that Ms Lee's earnings will reach the point of exceeding three times average weekly earnings, s 12(2) is irrelevant.

In its written submissions (which pre-dated Taylor) Carlton queried whether s 13 of the CLA was also applicable to an assessment of loss of the pecuniary benefits that could reasonably have expected to have been received had Mr Lee lived. It is difficult to see how "claimant" in s 13 could refer to Mr Lee given Taylor's construction of "claimant" in s 12. In any event the findings below accord with my assessment of Mr Lee's "most likely future circumstances" but for his death (CLA, s 13(1)).

(a) The income Mr Lee would have brought to his marriage

Consistent with the passage cited from De Sales, the first matter to determine is the "income" that Mr Lee would have brought to his marriage with Ms Lee.

Mr Lee attended the National University of Singapore from 1993 to 1995. After graduating he commenced working for Singapore Press Holdings as a journalist. From 1997 he worked in a number of editorial positions with different publishing companies. In July 1999 he commenced working for Fairfax Publications ("Fairfax") as editor of their web site "MISweb". He was based in Singapore. In August 1999 he began working from the Sydney office of Fairfax.

However Mr Lee decided to pursue a different career path. He had undertaken a number of computer software courses. In October 2000 he commenced employment as a Technical Support Representative for a software company. In March 2001 he was appointed a "Chinese Helpdesk Support Officer" with Dow Corning. In August 2001 he was employed as a Systems Engineer by "Coefficiency".

In July 2002 Mr Lee obtained work as a "Network/Desktop Support Officer" with the Smith Family. His commencing salary was $46,000 per annum.

On 19 January 2005 Mr Lee commenced employment with the Sydney Ports Corporation ("Sydney Ports") as a "Network Support Analyst" in the Corporation's "Finance and Information Services Unit". His commencing salary was $55,837.00 per annum excluding superannuation contributions. Sydney Ports is a State owned corporation responsible for the harbour, traffic control and emergency response services for Port Jackson, Botany Bay, Port of Eden and Port of Yamba.

In October 2005 his position was reviewed and re-evaluated. He was re-designated as "Information Systems Support Analyst" and his salary was increased to $65,374.00 per annum, with superannuation contributions of $5,884.00. He was entitled to a weekly on-call allowance of $311.00 and access to overtime payments.

Mr Lee's second last tax return was for the financial year ended 30 June 2005. His gross salary is recorded as $49,452.00. This reflects a combination of the income while he was employed at the Smith Family and his first six months at Sydney Ports. After some modest deductions his taxable income for that year was $48,491.00.

After Mr Lee's death his estate lodged his tax return for the financial year 2005/2006. His return records his gross payments from his employer of $48,708 and a taxable income of $46,846.00. There is nothing in his return to indicate that any special payment was made by Sydney Ports on his death. Thus he received approximately $48,000.00 for eight months work which corresponds to $72,000.00 per annum. This significant increase is consistent with the re-evaluation of his position in October 2005 and the payment of allowances and overtime.

At the time of his death, Mr Lee's supervisor was Niklas Power the then Manager of Infrastructure and Support. Mr Power described Mr Lee's position as Network Support Analyst as a "technical IT support role with customer facing supporting aspects". Mr Power has since been promoted to Senior Manager IT Strategy and Architecture in Business Change at Sydney Ports. He described Mr Lee as both "technically proficient" and someone he was "very comfortable putting in front of customers as well".

Mr Power explained that in 2009 a number of new roles were created within Sydney Ports. Mr Power was promoted, and a position of Service Delivery Manager was created out of his old position, which was filled by internal and external candidates applying for the position. Mr Power explained that had Mr Lee remained in his old position then, through a process of review and re-evaluation, he would have been automatically redesignated as a Senior Infrastructure Specialist ("would have been promoted to that position almost by default"). As at 2009 the salary for that position was $93,589.00 with an eligibility for a bonus of 5%, and an on-call allowance of $378.00 per week when rostered on.

The current salary for that position is $123,735.00 inclusive of superannuation plus an on-call allowance when rostered on call. Mr Power stated that, in the ordinary course, a person in that position can expect to be on call for a quarter of the year. Thus the total expected remuneration for the position in 2009 was $103,182.00 including a 5% bonus, and as at 2013 was $134,835.00 including a 5% bonus.

Mr Power stated that the Service Delivery Manager position that was created in 2009 was less technically focused and more customer orientated. He said the role was selected by the general manager of IT, although his recommendation would have been sought. He described Mr Lee as a "valid candidate" for that position. The current salary for that position was $135,000.00 inclusive of superannuation with an "at risk bonus" of $8,000.00.

Mr Power explained that his current position was one of two managerial positions at Sydney Ports reporting to the General Manager of IT. His salary was approximately $200,000.00. Mr Power was 46 years of age at the time of the hearing. He said that promotion to his level was based on managerial experience and performance. He agreed that it was possible that Mr Lee could have achieved that position. His observation was that Mr Lee displayed more than technical skills and was developing managerial skills. In cross-examination Mr Power explained that a candidate would typically possess ten to fifteen years experience before obtaining such a position.

The evidence clearly supports an assessment of Mr Lee's earnings up to judgment on the basis that he continued to be employed by Sydney Ports. None of the parties suggested to the contrary. Thus, for the period from Mr Lee's death until 23 December 2009 Mr Lee's earnings but for his death can be assessed on the basis that he was employed as a Network Support Analyst on a salary that commenced around $72,000.00 gross and was modestly increased. An average of $75,000.00 gross should be used for this period. For the period from 23 December 2009 until judgment his earnings should be assessed on the basis that he was employed as a Senior Infrastructure Specialist until the time of judgment, initially earning $103,182.00 and earning $134,835.00 gross as at the date of the hearing. In the absence of further evidence and allowing for the time between hearing and judgment, the calculation of his earnings for the period from 23 December 2009 to the date of judgment should utilise an average of $120,000.00 per annum gross.

I would also allow an amount of $10,000.00 as a contingency against the possibility that he might have been selected for the position of Service Delivery Manager in 2009. Although Mr Power was complimentary of Mr Lee's capabilities, he did not appear to assess his prospects of obtaining that position at that time as more than a possibility.

At the time of his death Mr Lee was thirty-four years old. Had he lived to the time this judgment is published he would be forty-two years old. In his early career he demonstrated flexibility, effectively re-skilling and changing careers. He was intelligent, competent and strategic No position, including one in the public service, confers absolute job security. Nevertheless Mr Lee's employment by Sydney Ports appears comparatively stable by current standards, at least in the information technology area. That said, information technology is self evidently an area where technological change can render jobs redundant and alter work structures. Information technology positions are often outsourced, although the operation of a port offshore seems difficult to contemplate.

The starting point for considering Mr Lee's future earnings is the current salary and benefits for a Senior Infrastructure Specialist, namely $134,835.00 including bonus and on-call allowance. However as he acquired experience his prospects of promotion would have increased. No doubt, as one ascends the hierarchy at Sydney Ports the available senior positions reduce and the internal and external competition for them becomes intense. However, bearing in mind Mr Power's salary, it can be expected that Mr Lee's gross remuneration would have increased, and that in his late forties and fifties it may or might have been very substantial.

There are a number of contingencies that affect this. There is an element of speculation in extrapolating a long career path for Mr Lee at Sydney Ports based on an eighteen month work history. I have already noted the potential for change in the information technology area. The more senior the position that Mr Lee may have attained the greater the likelihood that, if he had lost his employment, it would have taken a longer period to find employment at the same level. That said, as I have stated, Mr Lee may have left Sydney Ports for more lucrative employment. Mr Power described the salaries at Sydney Ports as being "in the middle of the range" for the IT industry as a whole.

In my view Mr Lee's earnings absent his death from the date of this judgment should be assessed to age 67 on the basis that he would have earned $134,835.00 for a period of six years, and then an income of $190,000.00 thereafter (before deduction of the usual amount for vicissitudes). This necessarily rough calculation is intended to reflect the likelihood of him continuing in the position of Senior Infrastructure Specialist, the contingency that he may have been promoted to Senior Delivery Manager, that in the medium to longer term he had reasonably strong prospects of promotion to one level higher and some prospects of promotion beyond that. It also reflects the potential for him to lose his employment and that, if he lost employment, it may have been difficult for him to obtain employment at the same or similar level, especially bearing in mind his likely age at that time.

(b) The share of the benefit

The second step described by Gleeson CJ in De Sales at [14] involves "determin[ing] the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime". In Halvorsen at 15C Clarke JA referred to the decision in Harris v Empress Motors Ltd; Cole v Crown Poultry Packers Ltd [1983] 3 All ER 561 in which O'Connor LJ held that, where the family unit was a husband and wife, the "conventional figure" that was adopted as the proportion of the (late) husband's net income that was spent exclusively on himself was one third, with one third for the benefit of his widow, and the remaining one third for the couple's joint benefit. His Honour then explained (at 15D to 15G):

"Although every case must be determined upon its own facts and care must be taken in applying conventional figures there is, in my view, much sense in this approach. For instance, while a husband may provide, and derive benefit from, the family home it is obvious that the wife also derives benefit from it. Where there are joint incomes, and the parties pool those incomes, there is much to be said for adopting the conventional approach in the absence of particular circumstances which tell to the contrary. That would not mean that the wife's benefit would be assessed at 66 per cent of the husband's earnings. Rather it would mean that they would be assessed upon the basis that she was receiving the benefit of 66 per cent of their joint incomes. In this case looking at the matter broadly, and that is the only way one can look at it, it would seem to me that that result would be achieved by assessing her dependency at 40 per cent. Let me give an example to demonstrate why I reach that conclusion. If we assume that at the time of the deceased's death he was earning $500 nett per week and his widow was earning $400 nett per week an allowance of 40 per cent of the husband's earning would result in an assessment of the dependency at 66 per cent of the total. (Forty per cent of $500 is $200 and if one adds that figure to the wife's earnings of $400 it will be seen that she would receive the benefit of $600 of a combined income of $900.) In the circumstances of this case that seems to me to effect broad justice in the assessment of the damages." (emphasis added)

This approach involves the combining of the two incomes of the spouse and then the application of a dependency rate similar to that applicable to a surviving spouse who is not earning an income. Otherwise it should be noted that the approach outlined by Clarke JA is one that involves an appeal to effecting "broad justice". It does not require a bottom up itemised assessment of the spouses' respective contributions and spending patterns, although it accepts that "every case must be determined upon its own facts".

Mr Cavanagh SC pointed out that in Roads and Traffic Authority v Cremona [2001] NSWCA 338 ("Cremona") the deceased and the surviving spouse were both working, but nevertheless the trial judge allowed a dependency rate of 63% (at [82]) which on appeal was increased to 71% (at [136]). Two aspects of Cremona should be noted. First, those rates concerned the proportion of the joint income which was for the wife's benefit (ie they correspond to the 66% figure in the above extract, not the 40%). Second the differential between the respective incomes of the husband and wife in Cremona was substantial. The late Dr Cremona was a busy medical practitioner while Mrs Cremona was likely to return to work as a part time pharmacist (at [134]).

Mr Cavanagh SC submitted that the appropriate proportion that Ms Lee would share in the income of her late husband was 50%. He submitted that the possibility that Ms Lee would have children by adoption was a contingency that warranted an increase in the dependency rate. I have already explained that I am bound by Halvorsen to reject that submission. Otherwise Mr Cavanagh SC pointed to the high income earning potential of Mr Lee and his relative youth at the time of his death. He referred to various personal characteristics of Mr Lee as described by Ms Lee, namely that he was intelligent, deliberate, fastidious, "particular and safe", careful with money, and had discussed investing their money for their joint benefit. Thus for example his salary was paid directly into their mortgage.

Carlton submitted that, in the event that the Court found that Mr Lee and Ms Lee's earning capacities were similar, a rate similar to that adopted in Halvorsen should be adopted, but otherwise the resolution of this should await the Court's findings as to respective earning capacities of Ms Lee and Mr Lee.

Given the approach stated in Halvorsen and the relatively narrow range between the parties' respective figures, I consider it appropriate to determine the matter at this point.

The figures I have found suggest there would have been a substantial but not dramatic difference in earning capacity between the late Mr Lee and Ms Lee opening up in future years. Further, the couple's combined income would have been substantial and they appear to have been relatively prudent. These factors all tend to raise the proportion of Mr Lee's income that Ms Lee was likely to receive the benefit of. I consider a dependency rate of 45% to be appropriate.

(c) Services provided by Mr Lee

In her evidence Ms Lee said that she and her husband maintained a very clean house and shared many household tasks. Ultimately It was agreed that Mr Lee performed washing, some aspects of cleaning, shopping, car cleaning and spring cleaning, and that this amounted to eight hours per week at a rate of $40 per hour.

Mr Cavanagh SC submitted that a further one hour per week in respect of Mr Lee providing such services for investment properties was sought. Carlton resisted this on the basis that it was too speculative. I agree. Ms Lee recalled that her husband discussed using their income to purchase such properties. However, given that I have accepted the likelihood that Mr Lee would have been promoted to a more senior position, I consider it was likely to reduce the available time he had to maintain them, especially bearing in mind that if someone else was paid to maintain the investment properties the expenditure might be tax deductible.

Otherwise the plaintiff sought a further two hours a week for maintaining a garden. This amount was reduced from what was initially claimed because Ms Lee occupied a smaller house. I will allow one and a half hours per week. Accordingly this head of damages should be allowed on the basis of 9.5 hours per week at $40 per hour.

(d) The period for which Mr Lee could reasonably have expected to receive the benefit

The third step described by Gleeson CJ in De Sales involved the Court determining the period for which a relative would have been likely to receive the relevant pecuniary benefit. Mr Cavanagh SC's calculations were premised on Mr Lee's services being available for the rest of his life expectancy, subject to the usual vicissitude rate of 15%. One of his calculations calculated Mr Lee's income by adopting the cap in s 12(2) of the CLA, but contended that no deduction for vicissitudes should be adopted because of the cap's application. I have explained the effect of the decision in Taylor so that Mr Cavanagh SC's submission falls away. No submission was made on behalf of Carlton that the allowance for vicissitudes should be any higher on account of any matter such as the possibility of her forming a new long term relationship. This accords with principle (see De Sales at [76] to [77] per Gaudron, Gummow and Hayne JJ). Otherwise Carlton did not take issue with this aspect of Mr Cavanagh's submission. Accordingly, the calculations of Mr Lee's income will be undertaken on the basis that he would have worked to a retirement age of 67 and able to provide services until the end of his expected life expectancy. This will be subject to a 15% discount for vicissitudes.

(10) Superannuation

The parties should address superannuation in their calculations.

(11) Costs of future funds management

It follows from the above findings that Ms Lee will recover substantial damages. A claim for the costs of fund management was made on her behalf.

The mere fact that a plaintiff will be required to manage a fund, perhaps a substantial fund, for the rest of his or her life, will not justify the inclusion in the award of an amount to cover professional costs of assistance in managing the fund, unless the need for such assistance itself flowed from the tortious conduct of the wrongdoer (Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49).

In this case none of the medical reports tendered on behalf of Ms Lee specifically addressed her capacity to manage a large financial fund. There is no reason to doubt that Ms Lee has the intellectual capacity to understand the concepts involved in managing a fund of the size she will receive. Her level of despair raises a possible concern that she may make some deliberately reckless financial decisions, but that is the prerogative of all successful plaintiffs.

I am not satisfied that Ms Lee has established an entitlement to this head of damages.

(12) Future disposition

As previously noted, the parties will need to prepare calculations and confer as to the appropriate orders necessary to give effect to this judgment. If further findings are required to complete the calculations the parties can make the appropriate application.

For the present, I will stand the proceedings over for a mention to allow the parties to perform calculations and confer. If agreement as to the outcome can be reached in the meantime, the parties can exercise liberty to apply.

(13) Orders

Accordingly, the Court orders:

(1) The proceedings stand over to 17 October 2014 at 9:00am for directions.

(2) There be liberty to apply.

*****************

Decision last updated: 19 September 2014

Medium Neutral Citation:	Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280
Hearing dates:	2 to 13 December 2013
Decision date:	19 September 2014
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1) The proceedings stand over to 17 October 2014 at 9:00am for directions. (2) There be liberty to apply.
Catchwords:	NEGLIGENCE - deceased's vehicle passed through exterior fence on second level of commercial car park - fact finding - role of faulty wheel stop in cause of accident - fence non-compliant with relevant standard - role of fence in cause of accident. DUTY OF CARE AND BREACH - owner of commercial car park - duty owed to users of car park - obligation to inspect for repairs and defects - scope of obligation to take action in response - burden of doing so. TRADE PRACTICES ACT 1974 (CTH) - implied term - whether contract between driver of vehicle and operator of car park - whether contract for supply of services to consumer - whether wife of deceased driver can bring claim under Compensation to Relatives Act 1897 (NSW) in respect of breach of contract containing term implied by Trade Practices Act - whether such a claim is governed by Civil Liability Act 2002 (NSW). NEGLIGENCE - liability of Council - power and functions exercised by Council from 1985 to 1991 in relation to development approval for car park, building approval for car park, inspection and licensing of car park - whether Council owed user and occupants of car park a duty of care in respect of exercise of statutory powers - whether Council committed misfeasance or non-feasance - whether Council breached duty - whether Council protected from liability by s 43A of Civil Liability Act - applicability of s 44 of Civil Liability Act. DAMAGES - nervous shock and claim under Compensation to Relatives Act - relevance of possibility that but for husband's death plaintiff would raise adopted child - plaintiff's economic loss - mixture of contract income and wages - plaintiff's share of late husband's likely income.
Legislation Cited:	- Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5E, s 5R, s 5T, s 12, s 13, s 16, s 17A, s 30, s 31, s 32, s43A - Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (No 92 of 2002) - Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW), s 46 - Compensation to Relatives Act 1897 (NSW), s 3, s 4 - Environmental Planning and Assessment Act 1979 (NSW), s 90, s 91 - Judiciary Act 1903 (Cth), s 80 - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 - Local Government Act 1919 (NSW), Part XI, s 305, s 306, s 310, s 311, Div 4, s 312, s 313, s 314, s 316, s 317AB, s 317AD, s 317AE, s 317AG, Div 4D, s 317B, s 319, s 586, s 591, s 615, s 632 - Local Government Act 1993 (NSW), s 674 - Local Government (Building and Construction Industry Long Service Payments) Amendment Act 1986 (NSW) (No 20 of 1986) - Local Government (Building Regulation) Amendment Act 1989 (NSW) (No 80 of 1989) - Local Government (Residential Flat Buildings) Amendment Act 1986 (NSW) (No 131 of 1986), s 4 and Sch 7 - Statute Law (Miscellaneous Provisions) Act (No 1) 1987 (NSW) (No 48 of 1987) - Trade Practices Act 1974 (Cth), s 4, s 4B, s 74
Cases Cited:	- Austin v Bonney [1999] 1 Qd R 114 - Baden Cranes Pty Ltd v Smith; Brambles Australia Ltd v Smith [2013] NSWCA 136 - Benic v State of New South Wales [2010] NSWSC 1039 - Blatch v Archer [1774] Eng R 2; 98 ER 969 - Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 - Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202 - Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; 173 CLR 33 - Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 - Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 - Curtis v Harden Shire Council [2014] NSWCA 314 - De Sales v Ingrilli [2002] HCA 52; 212 CLR 338 - Drotem Pty Ltd v Manning [2000] NSWCA 320 - G v H [1994] HCA 48; 181 CLR 387 - Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151 - Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 - Harris v Empress Motors Ltd; Cole v Crown Poultry Packers Ltd [1983] 3 All ER 561 - Insight Vacations Pty Ltd v Young [2010] NSWCA 137; 78 NSWLR 641 - Jones v Bartlett [2000] HCA 56; 205 CLR 166 - Jones v Dunkel [1959] HCA 8; 101 CLR 298 - Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; 171 LGERA 165 - Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 - Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361 - MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416 - Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727 - Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49 - Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 - Paul Dainty Corporation Pty Ltd v Sydney City Council [1983] 2 NSWLR 147 - Payne v Parker [1976] 1 NSWLR 191 - Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 - Rasmussen v South Western Sydney Local Health District [2013] NSWSC 656 - Roads and Traffic Authority v Cremona [2001] NSWCA 338 - Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 - Roads and Traffic Authority v McGregor [2005] NSWCA 388 - Ryan v A F Concrete Pumping Pty Ltd [2013] NSWSC 113 - Shaw v Thomas [2010] NSWCA 169 - Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 - Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 - Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 - Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317 - Taylor v The Owners - Strata Plan No 11564 [2013] NSWCA 55, 83 NSWLR 1 - Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 - Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234 - Tweed Shire Council v Hancomatic Music Pty Ltd [2007] NSWCA 350 - Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 - Wallace v Kam [2012] NSWCA 82 - Wallace v Kam [2013] HCA 19 - Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 - Warren Shire Council v Kuehne [2012] NSWCA 81; 188 LGERA 362 - Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 - Woolworths Ltd v Crotty [1942] HCA 35; 66 CLR 603
Texts Cited:	- Law of Negligence Review Panel, Parliament of Australia, Review of the Law of Negligence Final Report (September 2002) - Dominic Villa, Annotated Civil Liability Act 2002 (NSW) (Thomson Reuters, 2nd Ed, 2013)
Category:	Principal judgment
Parties:	Michelle Lee (Plaintiff) Carlton Crest Hotel (Sydney) Pty Ltd (First Defendant) City of Sydney Council (Fourth Defendant)
Representation:	Counsel: R.A. Cavanagh SC, A.J. Bowen (Plaintiff) L. King SC, J. Sheller (First Defendant) D.T. Miller SC, C. Purdy (Fourth Defendant) Solicitors: Beswick Lynch Lawyers (Plaintiff) Thompson Cooper Lawyers (First Defendant) Moray & Agnew (Fourth Defendant)
File Number(s):	2009/297394