Leman v HV Operations Pty Limited

[2017] NSWDC 113

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Leman v HV Operations Pty Limited [2017] NSWDC 113
Hearing dates:	20, 21 and 22 March, 3 May 2017
Date of orders:	24 May 2017
Decision date:	24 May 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Costs reserved. (3) Liberty to restore in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT – personal injury – plaintiff leaves covered walkway to car park to use earthen pathway contrary to warning sign and trips on a drain in heavy rain – liability – contributory negligence – causation – quantum
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5R Civil Procedure Act 2005 (NSW), ss 56-62
Cases Cited:	Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Blacktown City Council v Hocking [2008] NSWCA 144 Jackson v McDonald’s Australia [2014] NSWCA 162 Jermen v Shell Company of Australia Ltd [2003] NSWSC 1106 Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705 Metaxoulis v McDonalds Ltd [2015] NSWCA 95 Morgan v Owners Strata Plan 13937 [2006] NSWSC 1019 QBE Insurance (Australia) v Orcher [2013] NSWCA 478 R v Turner [1975] QB 834 Reid v Brett [2005] VSC 18 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 Smith v New South Wales Bar Association (1992) 176 CLR 256 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Tame v New South Wales (2002) 211 CLR 317 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Wright v Perpetual Ltd [2011] NSWDC 37 Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:	Principal judgment
Parties:	Plaintiff: John William Leman Defendant: HV Operations Pty Limited
Representation:	Counsel: Plaintiff: Mr C Hart Defendant: Mr D Talintyre   Solicitors: Plaintiff: Bale Boshev Lawyers Defendant: Yeldham Price O'Brien Lusk
File Number(s):	2016/160748
Publication restriction:	None

Judgment

Introduction

1. The plaintiff, by statement of claim filed in the Newcastle Registry of the District Court on 25 May 2016, seeks damages from his employer for negligence following the plaintiff’s injury on 18 November 2013.

2. The circumstances of the injury, according to paragraph 5 of the statement of claim, were as follows. The plaintiff was walking towards a car park area during heavy rain when he stepped on a gutter, contaminated with water and mud, causing him to slip and fall.

3. The particulars of negligence provided in paragraph 7 of the statement of claim are:

“7.1 By their servants and/or agents, failing to take reasonable care to provide a safe system of work, insofar as the system of work did control the risk of injury from the presence of muddy and slippery conditions in the area by which the Plaintiff accessed the carpark, giving rise to a risk that he would slip and fall (“the risk”).

7.2 By their servants and/or agents, failing to take reasonable care to provide a safe place of work, alternatively, providing an unsafe place of work, insofar as the place of work contained the presence of the risk.

7.3 By their servants and/or agents, failing to take reasonable care to identify the risk associated with the system and place of work.

7.4 By their servants and/or agents, failing to take reasonable care to carry out such inspections as were reasonably required to ensure the elimination of the risk.

7.5 By their servants and/or agents, failing to take reasonable care to comply with the provisions of the WHS and/or CMHS and/or their regulations insofar as the Defendant, as controllers of the system and place of work, failed to identify, control and eliminate the risk of injury.”

4. The amended defence filed on 19 January 2017 denies liability, quantum and causation and pleads the following particulars of contributory negligence:

1. Failing to keep a proper lookout for any obstacles before him, including any water, leaves and dirt on the ground (which is not admitted);

2. Failing to take any or any adequate care and/or precautions for his own safety;

3. Failing to look where he was placing his feet;

4. Failing to adhere to the defendant’s safety training on “eyes on the path”;

5. Failing to take note of the ground on which he was walking particularly in circumstances where there was heavy rainfall;

6. Failing to step carefully in an area where there was water, leaves and dirt on the ground (which is not admitted);

7. Hurrying through the car park during heavy rainfall;

8. Failing to adhere to warning signage directing him to use the designated walkways in the car park.

The issues in dispute

5. The issues in dispute, as helpfully identified by the defendant, are:

“Liability

1. Whether the defendant’s duty as occupier or controller of the premises included a duty to take reasonable care to provide the plaintiff with a safe place and/or system of work.

2. Whether the defendant’s duty of care as occupier or controller of the premises included a duty to carry out reasonable maintenance of the car park and its drainage system.

3. Whether the defendant’s duty of care included taking steps to prevent the plaintiff from engaging in the ordinary “every day” conduct of stepping over a gutter.

4. Whether the defendant discharged any duty of care it owed to the plaintiff by the provision of a paved pathway into the subject car park that did not require the plaintiff to negotiate the gutter he allegedly slipped on, together with a warning to use the designated walkways.

5. Whether the plaintiff, with knowledge and experience of the existence and location of the gutter he allegedly slipped on, was guilty of contributory negligence in failing to take reasonable care in the prevailing high rainfall weather conditions to either:

a. avoid the gutter by remaining on the designated walkways; or

b. identify and safely cross the gutter by reducing his ambulatory speed and keeping a better lookout as to where he was placing his feet.

6. Whether the gutter was contaminated with water and mud due to a failure in reasonable maintenance or as a result of the prevailing high rainfall weather conditions.

7. Whether the plaintiff has discharged his onus of proving that a reasonable maintenance system would have prevented the gutter and associated drainage system from becoming contaminated with water and mud, given the prevailing high rainfall weather conditions.

8. Whether the plaintiff has discharged his onus of proving that any breach of the defendant’s duty of care was a necessary condition of the occurrence of the harm that befell the plaintiff.

Quantum

9. Whether the chronic tendinosis of the plaintiff’s left Achilles tendon was present prior to 18 November 2013.

10. Whether the incident which occurred on 18 November 2013 caused any injury or aggravation of significance in the plaintiff’s left Achilles tendon, or alternatively, whether any injury or aggravation of the plaintiff’s left Achilles tendon was temporary or ongoing.

11. Whether the tear of the plaintiff’s left medial gastrocnemius muscle which occurred on 18 November 2013 recovered within 3-6 months.

12. Whether the surgery on the plaintiff’s left Achilles tendon in June 2014 resulted from the incident which occurred on 18 November 2013 or was due to the plaintiff’s pre-existing chronic tendinosis of the left Achilles tendon.

13. Whether the surgery on the plaintiff’s left knee in November 2014 resulted from the incident which occurred on 18 November 2013 and/or any treatment of injuries sustained by the plaintiff on that date or was due to the pre-existing chronic degenerative condition of the plaintiff’s knee.

14. Whether it is likely that the plaintiff would have required surgery on his left Achilles tendon and/or left knee whether the incident occurred on 18 November 2013 or not.

15. Whether the need for surgery on the plaintiff’s left Achilles tendon and/or left knee was accelerated by the incident which occurred on 18 November 2013 and, if so, to what degree.

16. Whether the plaintiff’s capacity for and ability to work would have been reduced by his pre-existing medical conditions whether the incident on 18 November 2013 occurred or not.

17. Whether the plaintiff is entitled to damages for non-economic loss and, if so, the assessment of same.

18. Whether the plaintiff is entitled to damages for out-of-pocket expenses and, if so, the assessment of same.

19. Whether the plaintiff is entitled to damages for economic loss and, if so, the assessment of same.

20. Whether the plaintiff is entitled to damages for domestic care and, if so, the assessment of same.” (Exhibit 4)

6. The plaintiff provided a statement of issues (Exhibit B) which dealt in a general fashion with liability, s 5B Civil Liability Act 2002 (NSW), contributory negligence and question of damages. The two specific issues in relation to causation identified by the plaintiff are:

1. Whether the injury caused the plaintiff’s need for surgery to his left ankle by Dr Rao on 14 June 2014, and

2. Whether it played any role in the plaintiff’s need for surgery on his left knee by Dr Harvey on 3 November 2014.

7. Although not specifically stated in the statement of issues by either party, both counsel agreed that the plaintiff’s credibility was also an issue in these proceedings, particularly in relation to quantum and causation.

The circumstances of the accident

8. On the day in question, it had been raining very heavily all day and was still raining by the time work finished at the mine site. There was a cement path to the car park which was under a covered walkway. The plaintiff, who had parked his car there and intended to drive home, left the walkway part of the way down:

“Q.  Can you please answer this question:  when you walked along, on 18 November 2013, when you'd finished work in the workshop, towards your car and you were on that walkway which you've marked as "A", approaching the south‑east corner of the carpark, did you sigh or make any observations of the condition and the surface of these uncovered paved areas that are represented in exhibits D or E, did you?

A.  I did.

Q.  What did they look like?

A.  They were wet and muddy.

Q.  Then did you continue to walk along the covered pathway?

A.  Yes.

Q.  Then what did you do?

A.  I took an earthen pathway that was a direct line to my car.

Q.  What was the condition of that area as you were walking across to the edge of the carpark, what was the condition of that area, including the edge of the carpark, the gutter of the car washing, to your observation on that day?

A.  It was wet and muddy.

Q.  Did you observe the level of any water in that area?

A.  It was up to and offer the height of the gutter.

Q.  Were you moving quickly or slowly?

A.  I was walking, but I was ‑ it was raining and I was walking at a fast pace to get out of the rain.

Q.  As you were walking towards that area, what happened?

A.  I got to the edge of the gutter behind my car or to the left of my car ‑ actually to the left of the car which was in between two car spaces, slipped off the edge of the gutter‑‑

Q.  Stopping you there, was there any water at or about that area?

A.  Yes, there was.

Q.  Where was that water?

A.  It was out over the gutter and on to that earthen area behind the area.

Q.  Over the top of the gutter?

A.  Over the top of the gutter.

Q.  If you like, as a pool, if you like, or an area of water‑‑

A.  That's correct.

Q.  ‑‑over the level of the gutter?

A.  That's correct.

Q.  Then what happened then?

A.  I slipped off the edge of the gutter.

Q.  Which foot?

A.  The left foot

Q.  What happened then?

A.  It slipped off the gutter and fell underneath me, and I feel down into the carpark area just beyond the gutter with‑‑

Q.  Then, when you fell, firstly, what did you notice about your body in terms of your anatomy?  Did you experience anything?

A.  Immediate pain.

Q.  Where did you experience that pain?

A.  Ankle and calf.

Q.  Did you fall to the ground?

A.  I did.

Q.  Well, to the carpark floor, if you like?

A.  Yes.

Q.  The bitumen surface there?

A.  Yeah.

Q.  What did you notice about your, apart from the, I think you've described pain in your ankle and your calf, were they both on your left side?

A.  On the left side.

Q.  What did you notice about the clothing and other things that you were wearing?

A.  Well, they had just fallen into about 5 inches of water, so I was very wet.

Q.  What did you do then?

A.  I was able to get up.  I didn't report it then.  I got up and got in my car and drove home.

Q.  When you were at home, did you make any observations about your person, that is, we know your clothes were wet?

A.  Yeah.”

9. As is set out in more detail below, this covered walkway was designed for employees to reach the car park by walking on a cement footpath rather than across the ground. The plaintiff describe the gutters of the covered walkways which adjoined the cement path (at T 47):

“Q.  Did you make any observations of the covering to the covered walkway related by the oblong "A" in diagram Exhibit F at any earlier time than the date you were injured on 29 November 2013?

A.  Yes.

Q.  What did you observe about the state of the covering, including the gutter, from time to time, in the period up to 29/11/2013, if anything?

A.  There were grass and plants growing out of the gutters of the covered walkways.

Q.  Now, in relation to the surface area of the carpark, again, in the period up until ‑ in the period of your experience of attending the Howick carpark operated by Hunter Valley Operations, the defendant, in terms of the surface of the carpark and the drainage areas of the carpark, did you make any observations, from time to time, prior to 29/11/2013 about the condition?

A.  Yes.

Q.  What did you observe?

A.  They were unkempt; they were muddy and full of debris.

Q.  In the period up to the time, on the day of your injury, did you observe anything in relation to the way water would either drain from the covered way or drain into the carpark during periods of rain?

A.  Well, the water‑‑

Q.  Did you make any observation?

A.  Yes.

Q.  What did you observe?

A.  That the water wasn't piped from roofing to any stormwater area.  The water just ran off the roof on to the ground, off the gutters.

Q.  In terms of the surface area of the floor of the carpark and the drainage areas, did you notice anything about the way the water would ‑ well, anything about water during periods of rain?

A.  Yes.

Q.  What did you observe?

A.  That the drains were blocked preventing the water from getting away.

Q.  Did anyone from Howick or Hunter Valley Operations, did you see anyone employed by Howick/Hunter Valley Operations in the area of the carpark, from time to time, during these observations that you made?

A.  No.

Q.  Did you ever observe employees of Howick/Hunter Valley Operations walking in and about the carpark area on which day when you made observations about the condition of the covered way, its gutters or the drainage that you've referred to?

A.  Yes.

Q.  Did they work there every day?

A.  Yes.”

10. In cross-examination, the plaintiff was shown the defendant’s film footage of the path the plaintiff actually took, which was to leave the covered walkway, walk across the wet ground, cross over another pathway, leave that pathway and go back onto the wet earth again and then arrive at the spot where his vehicle was parked:

“Q.  You will see from that that the fellow who filmed that bit of footage made an assumption about the path you actually took on the day that you slipped off the gutter.

A.  Mm.

Q.  According to the best of your recollection, does he have it right, or was there some deviation in your path of travel from what he showed on the video there?

A.  No.  In my recollection he was right.

Q.  And you would agree with me then that after leaving the covered walkway, you walked across an urban patch of ground and crossed over another pathway, left that pathway and you were back on earth again before you got to where your vehicle was parked on the side of the car park there.

A.  Correct.”

11. Although he did not mention it during his evidence in chief, the plaintiff acknowledged in cross-examination that there was a sign at the spot where he left the covered walkway to follow this uncovered pathway. That sign said: “Use Designated Walkways”:

“Q.  I'm not sure if you picked it up on the video, and I'm happy to play it for you again, but at the part of the covered walkway where you left the pathway, do you agree that there was a sign on a post there that says, "Use designated walkways"?

A.  I have seen that sign.

Q.  And that sign was there on 18 November 2013, wasn't it?

A.  Correct.

Q.  In fact, it had been there for some months before then, hadn't it?

A.  I'm unaware of that, but I had seen the sign there.  I don't know how long it had been there, but, yes.

Q.  You'd certainly seen it before that day?

A.  Yes.  Yes.

Q.  When I say, "that day", I mean 18 November 2013.

A.  Yes.

Q.  You agree with me that by stepping off the covered walkway, you deviated from the instruction in that sign?

A.  I disagree.

Q.  Do you agree with me that when you came to the end of the pathway closer to your car that you crossed to get to your car and left that pathway you also deviated from the instruction in that sign?

A.  Yes.”

12. The plaintiff agreed that the covered walkway had been in place for some considerable time and was the path to the car park (T 88). His explanation for deviating from it to walk across the muddy ground, contrary to the sign, was because the whole car park was flooded, but he acknowledged that he had to walk through four or five inches of water to get to his car in any event:

“Q.  Raining constantly I think you said?

A.  It was raining constantly.

Q.  And it was heavy rain.

A.  On and off.

Q.  Would you agree with me that had you taken the side path which skirted the car park and took you to the driveway entry into the car park, you could have avoided the gutter which was flooded on 18 November 2013.

A.  Had I taken that designated pathway, I would have gone to a flooded car park.  There was no difference where I went.  The car park was under water there, or the car park was under water down there.  The whole car park was flooded.  Had I gone the pathway, the long way, to get to my car, I would have had to walk through four or five inches of water to get to my car.

Q.  But you had to walk through four or five inches of water to get to your car in any event, didn't you?

A.  Only at the back of my car.  My car was parked right there.  I only had two or three feet of water, underwater, to get to my car.

Q.  But you knew the gutter was there, didn't you?

A.  I did.

Q.  You knew that in order to get to your car you had to negotiate the gutter?

A.  I did.”

13. The plaintiff denied that he was running but agreed that he was “hurrying along walking” because the pathway he was following was uncovered (T 89). However, he did not agree that he was hurrying in such a way that he was not paying attention to where the gutter was:

“Q.  You were walking very quickly?

A.  I was hurrying along walking, yes.

Q.  You were hurrying in such a way that you weren't paying attention to where the gutter was, weren't you?

A.  No.

Q.  So you're saying you could see where the gutter was as you approached your car

A.  I could.

Q.  Nevertheless, you didn't step over the gutter, did you?

A.  I didn't get a chance to do that, no.

Q.  When you say you didn't get a chance to do it, are you saying that you could see the gutter on your way to the car?

A.  I could see the gutter.

Q.  And didn't you have every chance to step over it?

A.  I did have every chance to step over it.  As I stepped on to the gutter to step over it, I slipped off the gutter.

Q.  You've already given evidence that on your way to the car that day you could see it was wet and muddy?

A.  Yes.

Q.  It's a matter of common human experience that when things are wet and muddy they're slippery is it not?

A.  They are.

Q.  And you would agree with me, or you know yourself from slipping off your truck that if you're trying to go up or down a step or a ladder or a stair that's got ‑ it's mud or something on it, you can slip on it and fall?

A.  On a ladder, most certainly.  Yeah, it's a dangerous exercise going up and down ladders, especially when they're covered in mud.  This was flat ground ‑ flat ground.  I could see the gutter.  I just slipped off it.

Q.  Well, it's not flat ground when there's a change in surface level from where the gutter is to a car park below it, is it?

A.  No, it's not.

Q.  It is a change in height?

A.  It is a change in height.

Q.  And you knew that it was wet and muddy?

A.  I did.

Q.  And you say you could see the gutter in front of you?

A.  It was covered in water and mud, but I could see the gutter.”

14. The plaintiff was asked about the method he employed to step across the gutter:

“Q.  Don't you agree the sensible thing for you to have done was instead of stepping on the edge of the gutter where you could slip, it would have been safer for you to put your entire foot over the gutter on to the ground below it?

A.  That was the plan.  That was the plan, until my left foot hit the gutter and slipped off it.

Q.  So you're saying your left foot hit the gutter because you didn't take proper care to step over it properly?

A.  I wouldn't say that, no.

Q.  Well, how did it come about if you could see the gutter in front of you, you've agreed with me that you know that if things are wet and muddy they can be slippery.  You've agreed with me that changes in surface height can give rise to a fall.

A.  Yes.

Q.  Why didn't you take the care to ensure that your foot didn't strike the edge of the gutter such that you slipped?

A.  I'm sorry, but accidents happen.  It was a complete accident.  I didn't mean to do it.  It just slipped off the gutter.”

15. Mr Talintyre then put to the plaintiff:

“Q.  And that complete accident happened because you didn't want to negotiate through more water in the car park than you could avoid; is that correct?

A.  That's correct.

Q.  In other words, instead of using a designated pathway which would have taken you around the gutter and down a driveway exit to the car park, you decided you would cut short how much water you might have to walk through?

A.  Correct.”

16. The plaintiff also provided instructions to Mr Jason Wagstaffe of SAFEgroup Pty Ltd with information (both in a telephone call and by way of a letter of instructions from his solicitor) concerning the circumstances of his accident. Mr Wagstaffe’s report was tendered (Exhibit C, pages 10-70).

17. Mr Wagstaffe described the circumstances of the plaintiff’s accident as occurring “whilst walking towards the car park area” when the plaintiff “mis-stepped” and fell when he stepped on a gutter camouflaged by plant debris, water and mud (page 8).

18. Mr Wagstaffe’s report sets out the basis upon which his expert opinion would support findings of negligence. No expert report was tendered in reply, but he was cross-examined as to his conclusions.

The report of Mr Wagstaffe

19. As noted above, in the general description of the plaintiff’s accident (see above) and of the car park (see paragraph 26 on page 10), Mr Wagstaffe makes no reference to the covered walkway constructed to enable employees to access the car park without walking onto wet or muddy terrain. He mentions the “covered pedestrian walkway that ran from the main workshop through to the bathhouse” in paragraph 31 on page 12, but does not identify it as the means of access to the car park, or refer at all to the sign which the plaintiff acknowledged was present on the day.

20. This is only the first of the deficiencies in Mr Wagstaffe’s report. Although he refers to the need for there to be a “clear understanding of the factors leading to injury”, such as the “design and physical condition of the walking surface, the provision and maintenance of available drainage and the environment that the plaintiff was required to contend with” (page 9, paragraph 20), he never directed himself to the identity of the defendant beyond noting that it “owned and operated Howick mine” (page 8), or to the adequacy of the walkway system and use of the sign.

21. In particular, Mr Wagstaffe did not trace the path that the defendant says the plaintiff should have taken, namely to follow the covered walkway and comply with the sign, and compare that with the path the plaintiff would otherwise have taken, which would have meant walking on cement and avoiding the choked gutter. He appears to have thought that the plaintiff was expected or obliged to leave the pathway and walk across muddy terrain in the rain and out of shelter.

22. The plaintiff himself acknowledged that the walkway was there to be used. His reason for not doing so is that he wanted to get to his car and it was quicker for him to do so by using what he considered to be an easier shortcut, namely to walk along the muddy track which came closer to his car than the slightly longer route under the covered walkway where he was walking on cement.

23. In his closing submissions, Mr Hart made much of the fact that the path the plaintiff took was, as the photographs showed, one which had clearly been used by many others. However, this information does not appear to have been provided to Mr Wagstaffe. This means that I have no expert opinion as to whether this is in fact the case. Mr Hart invited me to infer regular use from the state of the path, but the dangers of making such assumptions from photographs are well known (QBE Insurance (Australia) v Orcher [2013] NSWCA 478 at [23]; Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 at [69] – [75]; Blacktown City Council v Hocking [2008] NSWCA 144 per Spigelman CJ at [7] to [13] and Tobias JA at [167] to [171]).

24. Finally, Mr Wagstaffe’s language, proposals for change and observations about risk are at times so vague as to be incomprehensible. A typical example is paragraph 80 which states:

“Once appropriate risk control measures had been identified; [sic] then appropriate systems should have been developed, implemented, monitored and reviewed to ensure that the risk of injury was effectively reduced and was being effectively managed.” (Exhibit A, page 31)

25. What Mr Wagstaffe needed to address was the question of whether the covered walkway and the warning sign to use the covered walkway and to keep to that path was sufficient to amount to a risk control measure which would effectively reduce the risk of injury.

26. Mr Wagstaffe complains (paragraph 81) that he had not been provided with any documentation that would indicate that these necessary hazard identifications and risk control measures had been undertaken and utilised in developing a safe and trafficable car park for use by pedestrians such as the plaintiff. How he could make such a statement when he must have seen the covered walkway and the sign in question is unclear.

27. Mr Wagstaffe’s eight conclusions concerning the failure of the defendant to develop, implement and “embed” appropriate systems to deal with this risk all suffer from a combination of the above failures to make proper enquiries from his own observations of the car park, considering the utility of the covered walkway and sign and asking the plaintiff about these matters.

28. Mr Wagstaffe acknowledged a number of these problems in cross-examination, such as the existence of the sign “Warning: Use Designated Walkways” which appears in one of the photographs he took but, as is noted above, is not otherwise mentioned in the report:

“Q.  I take you to page 19 of your report, do you see in the top photograph there is a sign on the yellow post and would you agree with me that that sign reads "Warning:  Use designated walkways"?

A.  Yes.  It does.

Q.  I want you to assume that that sign was on that post as at 18 November 2013 and had been for some time before that; do you understand that assumption?

A.  I do.

Q.  You've marked in that photograph with means of a red arrow the path that you were instructed that the plaintiff took on the day of his injury which caused him to leave the paved covered walkway and across a patch of earthen ground.  Would you agree with me that in doing so he deviated from the instruction in that sign?

A.  Yes.  That is correct, based on your assumption.

Q.  Looking at the diagram produced to you, which is copy of exhibit 2 already before the Court, I want you to assume that that's a representative diagram showing the covered walkway on the right‑hand side and then leading off the covered walkway, a paved walkway which leads in the general direction of the corner of the car park and then splits into two.  There is a short side pathway which terminates and then there is the pathway continues on past down the side of the car park and ends where the words "kerb" appear on the diagram; do you understand that?

A.  Yes, sir.

Q.  I want you to assume that that paved walkway had been laid and was in use as at 18 November 2013 and, indeed, for several months, if not years, beforehand; do you understand that?

A.  Yes.  I do.

Q.  Would you not agree that had the plaintiff complied with the direction in the sign that I've taken you to, that he would have walked along the covered walkway and then effectively followed the arrows along the paved walkway to arrive at the car park where the words "kerb" appear on the diagram?

A.  No.  I would disagree with that.

Q.  You'd agree that a designated walkway connotes a walkway that's been indicated by paving or posts or something of that nature?

A.  I do.” (T 224 line 40 to T 225 line 30)

29. Confronted with the designated covered walkway and sign, Mr Wagstaffe offered an alternate explanation:

“A.  I do, however, if I may place my opinion with that, the plaintiff explained to me that the car park was full of water, so, therefore, taking the route of either kerb, as you have suggested, would mean that he'd get significantly wet.  Also he had to place his crib bag in the boot of his car.  Therefore, the quickest or the shortest means of travel using the designated walkway, as you've drawn here, or has been provided here, would be via the short piece of concrete then towards the rear of the plaintiff's car.

Q.  You haven't said anything about any of that in your report, have you?  Indeed, if I could take you to page 37 of your report.  I take you back, for contest, to page 36 of your report.  Do you see that paragraph 98 begins with your treatment of what you consider to be reasonable preventative measures that could and should have been implemented by the defendant.  Do you see that?

A.  Yes, sir.

Q.  If you go over the page to page 37, paragraph E, isn't it your opinion that the defendant could and should have instructed the plaintiff to use the dedicated pedestrian pathway during periods of wet weather and then you're saying in italics "The issuing of such instruction would have ensured that the plaintiff approached his vehicle from the front and not from the rear where the concrete gutter was positioned"; do you see that?

A.  I do.

Q.  Isn't it the case that the defendant had done exactly what you had expected the defendant to do; that is, provide that paved walkway which would have brought him around to the front of his car avoiding the gutter?

A.  Correct.

Q.  What it really comes down to, in your opinion, is how wet his feet were going to get taking one path or another?

A.  Yes.  At the end of the day it comes down to the human need to stay dry, if you will.” (T 225 line 35 to T 226 line 17)

30. Mr Wagstaffe acknowledged that the plaintiff was going to get wet no matter which way he went and went on to concede that, to avoid a known hazard, the safest option was for the plaintiff to stay on the paved walkway to get to the car park, so as to avoid walking across the muddy earth and the debris piling up in the gutter:

“Q.  I want to put a series of assumptions to you.  Firstly, I want you to assume that Mr Leman was perfectly familiar with the layout of the car park and knew the gutter was there; do you understand that?

A.  Yes.

Q.  Secondly, that he knew the gutter and the ground around it was wet and muddy because of the weather; do you understand that?

A.  Yes.

Q.  Thirdly, that he actually saw the gutter on his approach to the car; do you understand that?

A.  Yes.

Q.  He accepted that it's a matter of common human experience that when the ground is wet and muddy, it can be slippery; do you understand that?

A.  Yes.

Q.  He agreed that when there is an elevation change, such as a step or a stair or a ladder, especially if it's slippery, that can result in a fall if you're not careful; do you understand that?

A.  I do.

Q.  Isn't it the case that much of your opinion is predicated on an assumption that Mr Leman did not discern the gutter on his approach to the car because you had described it in a number of parts in your report before objection as being camouflage?

A.  That is my opinion, yes.” (T 227 line 35 to T 228 line 10)

31. He eventually conceded that the plaintiff should have stayed on the designated walkway when asked to do so by Mr Talintyre at T 228:

“Q.  Now, doesn't that suggest to you, he knew the gutter was there; he knew it was a potential hazard to be avoided because it could be potentially slippery and the safest course for me to take was stay on the designated pathway and approach the car park so he would arrive at the front of his vehicle?

A.  Based on the assumptions put to me, that would be the case.” (T 228 lines 34-38)

32. As to the degree to which the car park was under water, Mr Wagstaffe agreed that he had been relying upon statements by the plaintiff about the state of the car park when he viewed the car park on the sole occasion he visited the site. He also agreed that he was not a hydraulic engineer, but said that this was not necessary for the purpose of his report (T 229). He agreed, however, that it was purely an assumption on his part that the drain was blocked on the day in question (T 229). He went on to concede at T 230:

“Q.  You are unable to give an opinion as to whether the drainage system of the car park would have coped with the volume of water that fell that day whether the drain was blocked or not, can you?

A.  No, sir.” (T 230 lines 30-33)

33. However, the most significant admission Mr Wagstaffe made was in relation to the erecting of the sign:

“Q.  Wouldn't you agree that things like erecting signs could be the result of a risk assessment carried out as to whether a certain hazard existed and what measures might be taken to guard against it?

A.  I believe so, yes, sir.” (T 230 lines 35-38)

34. After an interruption, Mr Talintyre put the question again:

“Q.  I'll just put the question again, Mr Wagstaffe, in your experience, wouldn't you agree that the existence of a sign indicates that somebody has turned their mind to the existence of a hazard and sought to do something about it to prevent that hazard causing somebody to be injured?

A.  I do, but the existence of a sign, whilst someone has turned their mind to it, may have ‑ turning their mind to it may have been through ‑ for various reasons, one of which may have been an issue to do with someone having an incident similar to that of the plaintiff's or it may be for some other purpose.  There may have been some other reason that someone turned their mind to it.  It may not be the same kind of situation the plaintiff encountered on the day.

Q.  If we accept that, though, isn't the effect the same, that somebody has appreciated that there is a potential hazard, even if it had manifestly previously and sought to do something about it by directing people to stay on the pathway?

A.  That is correct.” (T 232 lines 5-20)

35. Finally, Mr Wagstaffe was cross-examined about the mechanics of the accident. He agreed that stepping over a gutter was not a particularly difficult thing to do:

“Q.  Now, stepping over a gutter isn't a particularly difficult thing for an adult pedestrian to achieve, is it?

A.  Depending on the circumstances, sir.

Q.  Assume that the person had appreciated that the ground might be wet, muddy and slippery and also assume that the person, as a result of that appreciation, was taking reasonable care in their speed of travel and where ‑ they were watching where their feet was going, assuming all those things, it's not a particularly difficult operation to achieve, is it?

A.  It's not, as long as you know what the depth of that gutter is.  If you don't know what depth is when you step over it, it becomes significantly more difficult.

Q.  I asked you to assume previously that this man was perfectly familiar with the layout of the car park and the gutter because ‑ I'll also put to you that he'd been parking there several times a week for about 18 months beforehand.  So do you understand that assumption?

A.  I do.

Q.  So assuming that and assuming he knew the height of the gutter, wasn't a particularly difficult operation for him to achieve, taking into account the other assumptions I just put to you, was it?

A.  Based on your assumptions, no.” (T 232 line 34 to T 233 line 6)

36. Mr Wagstaffe also acknowledged that if the plaintiff had approached his vehicle from the front, accessed via the pedestrian pathway, he would not have encountered the concrete gutter and suffered the misstep or fall, and that the plaintiff must have appreciated the risk:

“Q.  Isn't it the case, if I take you to page 35 of your report, it remains your opinion that had Mr Leman approached his vehicle from the front, accessed via a dedicated pedestrian pathway, such as the one I've shown you on the diagram, then Mr Leman wouldn't have encountered the concrete gutter and wouldn't have suffered the misstep or fall?

A.  That is correct.

Q.  Now, you also say on that page that, in your opinion, he should have been warned about the hazards associated with the car park during wet weather and specifically instructed not to approach his motor vehicle from the rear during periods of wet weather.  If you, again, assume the assumptions I've put to you earlier about what this man knew about the state of car park, the gutter, how high it was, et cetera, no further warning is necessary, is it?  He appreciates the risk, does he not?

A.  Based on your assumptions given to me earlier, yes, that's the case.

Q.  Assuming he's aware of the risk as a result of those assumptions I put to you, he doesn't need to be prevented from using that car park, does he, he just needs to take reasonable care?

A.  Yes.  Yes, that would be the case.” (T 233 lines 8-27)

37. He also agreed that it was a matter of common human experience that accessing car parks might from time to time require somebody to walk across wet and muddy ground, and that one of the ways to avoid this was by staying on any paved walkway that the owner of the premises had provided (T 234).

38. Mr Hart’s submitted that Mr Wagstaffe (T 253-254) had been denied the benefit of documents which would have supported the plaintiff as there had been a failure to comply with a subpoena which called for documents in relation to a risk assessment. He submitted that there could not have been such a risk assessment and that, in those circumstances, foreseeability was a foregone conclusion. I do not accept that submission. The covered walkway and sign owe their existence to some form of risk assessment, however informal. The question is whether, in terms of the Civil Liability Act 2002 (NSW), these measures are sufficient.

39. I also reject the submissions that the only safe way the plaintiff had to the waterlogged car park was by taking the short cut past the sign. I am satisfied, from the film footage provided by the defendant, that any difference in time or convenience caused by using this covered walkway would be trifling.

40. Mr Wagstaffe is an expert witness who has referred to the Code of Conduct in his report. The purpose of the Code of Conduct, as Shore J noted in Jermen v Shell Company of Australia Ltd [2003] NSWSC 1106 at [28]-[29], is to eliminate what his Honour called the “hired gun expert and return the expert to the traditional role of being an objective witness furnishing independent evidence for the Court’s benefit”. In Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [69], Heydon JA refers to R v Turner [1975] QB 834 at 840 where Lawton LJ noted that if an expert had “omitted to consider relevant [facts], the opinion is likely to be valueless”.

37. Mr Wagstaffe’s failure to observe and analyse the walkway design and the use of the sign is hard to understand. The degree of weight I give to any of the findings made by Mr Wagstaffe must be substantially undermined not only by his concessions in cross-examination but by the fact that he failed to refer to or examine these visually obvious features as being the system in existence to enable workers such as the plaintiff to reach the car park. Mr Wagstaffe’s concessions in cross-examination and his unsatisfactory omission of this essential evidence from his report not only mean that no weight can be placed upon any of his findings as to risk, but that his evidence in fact supports the defendant’s contentions.

Submissions by the parties in relation to the circumstances of the accident

42. Mr Hart relied upon the plaintiff’s description of the gutters and drainage in the car parking area generally, which is submitted showed “not only absence of maintenance, but an absolute negligence in relation to the control of water and other material from the covered ways, from the roofs, from the gutters, absence of downpipes, the potential for debris from trees that Mr Wagstaffe gave evidence of, causing drainage problems” (T 253). His submission was that any place which has water and mud lying about created a foreseeable risk within the meaning of s 5B of the Civil Liability Act2002 (NSW) and was not a far-fetched or fanciful risk within the calculus of Wyong Shire Council v Shirt (1980) 146 CLR 40

43. Mr Talintyre’s submissions (T 254) were that the defendant was not obliged to provide a means of access to all available points and all conceivable routes to the car park and that a safe means of access, namely a covered walkway which covered a concrete path skirting the corner of the car park (which did not require anyone to negotiate a gutter) and the erecting of a sign advising that the covered walkway was to be used was sufficient. There was no evidence, even from the plaintiff, that the car park contained hazards other than the gutter containing tree debris as a result of the heavy rain.

44. This brings me to the duty of care the defendant, as owner of the site, owed to the plaintiff.

The duty of care owed to the plaintiff

45. It is by defining the duty of care owed to the plaintiff, namely to provide safe and well-maintained means of accessing the workplace and car park, that the difficulties with the plaintiff’s case become apparent. The defendant is the owner but not the occupier or controller of the premises. The defendant’s duty of care to the plaintiff was thus to take such care as was reasonable in the circumstances to avoid a foreseeable risk of injury.

46. For the reasons set out below, I consider that the duty of care is that identified by counsel for the defendant in his submissions, namely as a duty to provide a safe means of access to the car park for persons who had parked their car there, and for a car park able to be safely accessed by those persons despite it being open to the elements.

The relevant statutory provisions

47. Section 5B of the Civil Liability Act 2002 (NSW) provides:

“5B General principles

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

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

(b) the risk was not insignificant, and

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

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

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

(b) the likely seriousness of the harm,

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

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

48. The question of what amounts to a want of “reasonable” care for the safety of the defendant is generally considered within the framework of the statement by Mason J in Wyong Shire Council v Shirt at 47-48 as follows:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

49. The duty of care must be identified with precision, for the reasons explained by the NSW Court of Appeal in Jackson v McDonald’s Australia [2014] NSWCA 162 at [7]-[8]. It is only through correct identification of the risk that the Court can determine what a reasonable response to that risk would be: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at [7]. In the present case, this requires a focus upon the defendant’s role as the owner (but not the occupier or controller) of the premises.

50. When considering the content of the duty owed by the defendant to the plaintiff, regard must be had to s 5B(2), while noting that this is a non-exhaustive list of factors. The term “reasonable” is helpfully discussed by Brereton J in Morgan v Owners Strata Plan 13937 [2006] NSWSC 1019 at [32] as follows:

“The duty of the Owners to Mr Morgan was that general duty of care owed by occupiers to entrants, to take such care as is reasonable in the circumstances for their safety, and to protect them from risks of injury which can be foreseen and avoided [Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614, 663]. However, the content of that duty varies according the circumstances of the entrant’s presence on the premises, the obviousness of the risk, the probability of the risk occurring, the magnitude of the consequences, and the cost or inconvenience of taking steps to remove, avoid or avert it [Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40]. An occupier of premises is required to take only such care as is reasonable in the circumstances, not to make the premises as safe as reasonable care and skill on the part of anyone can make them [Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, 177, 184-5 (Gleeson CJ); Wilkinson v Law Courts Limited [2001] NSWCA 196, [21] (Heydon JA)]. One must not slide from determination that a risk of injury exists to a consideration of preventability: a defendant will be liable only if its failure to eliminate the risk shows a want of reasonable care for the safety of the entrant [Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317, [99] (McHugh J); Cafest v Tombleson [2003] NSWCA 210 (Meagher JA)]. The content of a duty of care in a particular case cannot therefore adequately or usefully be described simply as one to take reasonable care to avoid a foreseeable risk of injury to a person in the situation of the plaintiff, as that leaves open the content of the term ‘reasonable’ and thus the content of the duty, without which the issue of breach cannot be determined [Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, 213 [166] - [167] (Gummow and Hayne JJ)]. So it is essential to identify with precision, by reference to considerations of the nature of those indicated in Wyong Shire Council v Shirt, what was a reasonable response to the risk of harm that existed [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 611-2 [192] (Gummow and Hayne JJ)], a judgment which is to be made having regard the situation before, not after, the accident [Vairy v Wyong Shire Council [2005] HCA 62, [49], [126]]. It is necessary to consider these questions from the perspective of the defendant, with its state of knowledge, and ask whether the defendant acted as a reasonably prudent person ought to have acted [Woods v Multi-Sport Holdings Ltd (2002) 208 CLR 460].”

51. What is reasonable will vary upon the circumstances of the plaintiff’s entry (or in this case exit) from the premises. The failure to eliminate a risk (for example, cementing over the pathway or erecting some more extreme form of barrier than the sign in place) is not necessarily negligent: Tame v New South Wales (2002) 211 CLR 317 at [99].

52. Counsel for the defendant draws my attention to Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [21] where the broad steps of the Supreme Court and their safety were considered in the context of determining the content of the duty of care. The Court noted (at [33]) that, rather than focus on the incident involving the plaintiff and how it should have been avoided, the incident needed to be seen in context:

“[33] The criticisms made by the plaintiff in relation to the danger of falling on the steps naturally focus on what in fact happened to the plaintiff. But if the degree of attention to safety which the plaintiff submitted to be appropriate was in fact appropriate, much more would have been necessary to deal with the risk of injury happening in other ways (see generally Jones v Bartlett [2000] HCA 56; (2000) 75 ALJR 1; 176 ALR 137 at [19]; Taber v NSW Land and Housing Corporation [2001] NSWCA 182 at [60]). Dr Emerson complained of the dimensions of the steps, the lack of marking and the absence of handrails (presumably one on each side of a user of the steps would be called for ideally). He also referred to the absence of a "simple warning sign", which he said, "would have provided sufficient stimulus to the Plaintiff to be aware of the hazard of the non-standard steps" (Blue 12B). But the steps are used by many persons who speak English badly, so the warnings would have to be in more than one language. Perhaps there should be other warnings about the danger of descending steps in wet weather, the general need for care in using steps, the need to look out for persons manoeuvring trolleys or wheelchairs or television cameras, and so on. The more the warnings, the less the effectiveness of each. The human imagination can conjure up many circumstances in which a user of the steps might suffer injury. A particular measure directed to the avoidance of a particular type of injury might in itself be relatively inexpensive and relatively easy to implement. But if measures are to be taken to reduce all the dangers which can be imagined, very heavy burdens would be imposed: yet the form of injury from which the plaintiff suffered does not appear any more likely than most of the other imaginable forms of injury. This highlights the difficulty which confronted the plaintiff in isolating the three matters on which he relied to establish a breach of duty.”

Findings concerning duty of care and breach of duty

53. As noted above, I have found that the plaintiff voluntarily left the designated walkway to traverse muddy and wet ground and then a gutter containing debris despite knowing of the hazards because he wished to get to a particular spot in the car park where he had parked his car. This involved leaving the designated walkway, contrary to the sign, and walking across muddy and wet earth not once, but several times, as well as negotiating the choked gutter. The plaintiff was able to see the potential risk, namely the choked gutter, but proceeded nevertheless. In addition, whether by reason of the weather or because of the plaintiff’s hurry to get to his car and out of the rain after leaving the covered path, he was hurrying across wet terrain.

54. Section 5B Civil Liability Act 2002 (NSW) limits the duty of care to taking precautions that a reasonable person in the position of the defendant would take in order to guard against foreseeable and not insignificant risks of injury. That duty did not extend to providing a means of access to all or even some of the alternate routes to the car park. It was limited to providing a safe means of access to the car park in the form of a walkway which skirted the corner of the car park and went on to the car park entry, as well as a sign to discourage persons both from leaving the walkway and from taking the path that the plaintiff took. By erecting the covered walkway and in putting a sign in front of the shortcut (which required traversing muddy and wet ground as well as the gutter), the defendant had complied with its obligations. I also reject the asserted failure of the defendant to maintain the car park as based upon Mr Wagstaffe’s unqualified hydraulic engineering observations.

55. The fact that the plaintiff tripped while stepping over a gutter while walking through wet and muddy conditions in the course of travelling over familiar territory and where he knew the gutter was an obstacle is not, without more, evidence of negligence. Where there is heavy rain, gutters, footpaths and nature strips in cities as well as in mining areas may be wet and muddy and choked with leaves. I am satisfied that, in the present case, the defendant had discharged the duty that it owed to the plaintiff and that there was no breach of that duty.

56. I am satisfied that the plaintiff suffered the accident he did because, contrary to the system set up for his benefit, he left the covered walkway and traversed wet and muddy ground, slipping and falling on the gutter when he misstepped. He was aware of the risk of leaving the covered path and of the wet and dangerous conditions, as well as of the gutter in question.

57. In those circumstances, any claim for negligence against the defendant must fail.

58. I next set out the alternative findings I would have made in relation to contributory negligence.

Contributory negligence

59. Section 5R Civil Liability Act provides:

“5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

60. The effect of this provision is to require individuals to take responsibility for their own lives and safety. In Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 the Court noted at [145]:

“Section 5R(1) reflects the “fundamental idea that people should take responsibility for their own lives and safety” and also the proposition expressed by Callinan and Heydon JJ in Vairy (at [220]) that “the duty that [an injured plaintiff] owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized”: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 (at [68] – [70]) per Ipp JA (Giles JA and Hunt AJA agreeing); see also Gordon Martin Pty Ltd v State Rail Authority of New South Wales & Anor [2009] NSWCA 287 (at [39] – [41]) per Beazley JA (Giles and Ipp JJA agreeing).”

61. The question of whether a person has been guilty of contributory negligence is determined objectively. However, some regard must be had to human nature; for example, in Stojan (No 9) Pty Ltd v Kenway (No 9) Pty Ltd v Kenway the Court noted that the plaintiff became aware of the risk partway along the stairwell, when she discovered the next portion of the stairwell was in darkness. The Court took into account that the person in such a situation would be inclined to continue to move forward, and correspondingly found that contributory negligence existed, but not to the extent claimed by the respondents (at [152]-[153]).

62. The fact that a plaintiff has chosen an obviously dangerous route (such as a garden bed in a car park rather than the normal pedestrian walkway: Wright v Perpetual Ltd [2011] NSWDC 37 at [103]) may also be relevant.

63. Any person who leaves a designated covered walkway and ignores a warning sign may be said to be putting themselves at risk. In the present circumstances, that risk was substantial. The plaintiff compounded this risk by hurrying over what he knew to be wet and muddy ground in circumstances where he could see and was familiar with the drain, which was a known hazard over which he had to step.

64. In the event of liability being established, a substantial discount must be applied in relation to damages to account for the plaintiff’s contributory negligence.

65. In Stojan (No 9) Pty Ltd v Kenway the Court rejected the submission of the respondent to the appeal that contributory negligence should be assessed at 100%, and assessed contributory negligence at 50%. However, the plaintiff in Stojan (No 9) Pty Ltd v Kenway only found that the stairwell was not properly lit after she commenced to use it. In the present case, the plaintiff deliberately chose to leave the covered walkway and disobey the sign.

66. Leaving a designated path in such circumstances is conduct near the top of the range in terms of contributory negligence. I am of the view that contributory negligence should be assessed at 85%, to take into account the significantly higher factors present in this case.

Damages

67. I next set out below some observations as to the damages to be awarded in these proceedings. I also make findings as to the plaintiff’s credit, since this is a relevant factor in relation to the issue of damages.

The plaintiff’s medical history

68. The plaintiff has a long and complex medical history. Fortunately, the relevant features of this history were summarised for the purpose of a joint expert report as a chronology from his first significant injury in 1999:

“(i) In 1999 the plaintiff underwent a left knee arthroscopy.

(ii) An MRI of the plaintiff’s left knee carried out on 29 August 2000 showed a complex abnormal signal within the posterior horn and posterior body of the medial meniscus, with differential diagnosis including post meniscectomy changes versus recurrent meniscal tear.

(iii) On 23 October 2000, the plaintiff underwent an arthroscopic left subtotal medial meniscectomy.

(iv) On 31 March 2003, the plaintiff underwent revision of a previous right sided medial meniscectomy.

(v) On 1 July 2011, the plaintiff consulted Dr Pinczewski for bilateral knee pain, who was of the opinion that the plaintiff may well require total knee replacement into the future.

(vi) An MRI of the plaintiff’s left knee carried out on 28 July 2011 showed degenerative change with full thickness cartilage loss over the medial femoral condyle, peripheral meniscal rim has intrasubstance degenerative change and horizontal cleavage tear in the posterior horn remnant … large joint effusion and large Baker’s cyst with evidence of inferior leak.

(vii) On 29 July 2011, the plaintiff consulted Dr Pinczewski, who was of the opinion that the plaintiff will require bilateral total knee replacements in the future but he advised delaying it for as long as is humanely possible.

HART: That's the issue with Coal Mines Insurance.  We haven't clarified that.  That will have to stay open.  If your Honour was prepared to reserve on the basis that certain‑‑

HER HONOUR: I am not prepared to reserve on that basis.  What I propose to do, I propose to hear final submissions and I will stand it over for further directions, because I'm not going to leave issues like passed out of pockets and Fox v Wood to be determined in circumstances where I've had to reserve and I'm expected to hand down a judgment.

HART: Yes, your Honour, but‑‑

HER HONOUR: I'm going to reserve when all the evidence is in.

HART: Like the matter of Barrett, your Honour, he's on Workers Compensation now.

HER HONOUR: Mr Hart, I don't care about that.  The thing is I'm not going to reserve until all the evidence is in and all the submissions are in.  I'm not going to do it.  So that's final.  No judge is obliged to reserve in circumstances where they haven't heard certain evidence.  It creates any number of problems.  Has it occurred to you that then you need to make an application to reopen the case?

HART: But, your Honour, can I just say something, please?

HER HONOUR: No, you can't.

HART: Please.  Please, I beg you.

HER HONOUR: I've told you what I'm going to do.

HART: He is on weekly payments, your Honour‑‑

HER HONOUR: Mr Hart, I don't care what he's on.  I'm telling you I am not going to reserve in situations where it's technically necessary to reopen the case.  I am going to tanned it over for further directions so that you can send me whatever it is you've agreed on.  If you can't agree, you can come back.  I'm not going to do it.  It is stupid, Mr Hart.  It creates all manner of problems.  Judges are supposed to reserve and hand down judgments in two months.  I don't want to find a month from now you're still wrangling with these people who haven't provided you this on the last day of the hearing.  I'm not going to do it and that's final, Mr Hart.

HART: I accept that.” (T 270-271)

135. Mr Talintyre completed most of his address but said at T 289:

“Your Honour, I can't deal with out of pockets, because we don't have the plaintiff's case on that.  I've put the submissions I want to make about economic loss and I don't know that there's any other area of damages that your Honour needs submissions from me on.

HER HONOUR: All right.

HART: Can I just‑‑

HER HONOUR: What?

HART: Just in reply, very briefly, your Honour, very briefly‑‑

HER HONOUR: How can you rely when you haven't addressed these other issues?

HART: Sorry, I thought Mr Talintyre has finished.

HER HONOUR: He has finished.  What I'm saying is what's the point of having a reply‑‑

HART: Because I need to ‑ while it's clear in your mind, I need to deal with a couple of issues that are fundamental to the case and you need to see this information, your Honour.

HER HONOUR: Why don't you give me a note?

HART: Because it will only take me five minutes.  Please allow me.  I beg you.

HER HONOUR: You can have five minutes.

HART: Thank you, your Honour.  There was a criticism, a major criticism of the plaintiff's case on causation on the basis that his Achilles problem (1) wasn't an injury that occurred on 18 November 2013, your Honour, p 293, Develak's WorkCover certificate says, "Left ankle, Achilles...not operated on".  The criticism of him from the physiotherapy reports at p 116, if you read it and study it, it said the following ‑ this is on 27 November, referred by Dr Develak, this is the doctor that saw him "Thank you for...Achilles tendon strain", which is, obviously, a mistake, "He was provided...his Achilles symptoms".  There is no doubt that was a dual injury, a dual injury for which there is a continuing complaint of significant ongoing symptoms.  When Dr Millons sees him for the WorkCover insurer, those two injuries were clearly in his mind, they were clearly part of the documents given to Dr Millons because Dr Develak was the treating doctor for the injury that is complained.  There is no mystery about it.

For that to be, if you like, isolated as a‑‑

HER HONOUR: That's all right.  Is that your point?

HART: To isolate the soft tissue‑‑

HER HONOUR: Is that it?

HART: I'm just saying one more thing.  To isolate it as a soft tissue calf strain for a closed period‑‑

HER HONOUR: Yes.  I get your drift.

HART: Thank you.  That's it.

HER HONOUR: We need to relist this matter because apart from the fact that it's now ten past, I can't ‑ you need to resolve this issue of past out‑of‑pockets.

HART: Yes.  We will try and deal with that.

HER HONOUR: And future out‑of‑pockets.

HART: Yes.  Can I just say something about that?

HER HONOUR: No.  I'm putting it in the directions.  I need to stand the matter over part heard to enable the parties to determine Fox v Wood, past out‑of‑pocket and future out‑of‑pocket expenses.

DISCUSSION AS TO TIMETABLE

I ask the parties to provide me with amended damages schedules.  Is that possible?

HART: Yes.

TALINTYRE: Taking into account the out‑of‑pockets?

HER HONOUR: Yes.  In other words, what you do is just give me amended schedules.

The parties are to provide amended schedules of damages by Thursday, 27 April.

Mr Hart, you can amend your schedule of damages so it says, "30%" instead of "40%", takes out the past home care.  Do you think you can do me a favour and add things up?

HART: I will do that.  In the covering correspondence, I will just point out the evidence on which the plaintiff relies in the material relating‑‑

HER HONOUR: Whatever else you put in your submissions is a matter for you.  If your opponent has any objection, I'm sure he will tell me.  If you take the view that you would rather tell me twice than having make a mistake, then I'm not troubled by that.

HART: No.  It's to do with the future out‑of‑pockets.  Your Honour asked me and I ran out of time to identify them.  I'm just going to put some brief notes of references that deal with that.  That's all I'll do.

ADJOURNED PART HEARD TO WEDNESDAY 3 MAY 2017” (T 289-291)

136. On 3 May 2017, without prior notice to the Court, Mr Hart brought an application to tender a large number of file notes from Coal Mines Insurance set out in an affidavit of Mr Raymond Edward Blissett sworn 27 April 2017 (MFI 13). While some of these (namely those set out in Exhibit U) were not the subject of objection, there was an objection to the balance by the defendant on the basis of prejudice, as the doctors in question had given their evidence and the parties had closed their case and addressed, subject only to the past out-of-pockets and Fox v Wood issues which had caused me to stand the proceedings over to 3 May 2017.

137. I should first note that Mr Hart submitted that at all relevant times he had reserved his position and that he had never closed his case. He said that it was “unfair to the plaintiff” (T 301) and contrary to Makita Australia Pty Ltd v Sprowles to refuse to permit this step, and that the plaintiff had been put to great inconvenience by the unfair and disjointed way the court case had been run (T 301-302). The disjointed nature of the case arose from the interposing (principally during the plaintiff’s evidence) of medical witnesses in order to suit the convenience of the doctors who had had to travel to Newcastle to be cross-examined.

138. While it is correct to say that I did not formally insist on the plaintiff closing his case (or, for that matter, insist that the defendant do the same) I made it clear to Mr Hart that it was necessary, if the plaintiff wished to tender material not currently available, for him to seek leave to reopen his case: see my statements to this effect at T 270. This issue was, however, only raised a matter of days before the 3 May 2017 adjourned hearing date.

139. Mr Hart initially argued that he had sought, and been granted, leave to adduce further evidence after the submissions of both parties, which an examination of the transcript shows was clearly not the case. I refused to accept that argument for the reasons set out in the transcript. He argued in the alternative that he should be permitted to reopen his case to tender the substantial bundle of material attached to the affidavit of his instructing solicitor, and I now set out my reasons for refusing that leave.

140. The principles for reopening a case and recalling witnesses or seeking leave to adduce further evidence are helpfully set out in Reid v Brett [2005] VSC 18 at [41]. The relevant principles governing the exercise of discretionary power to reopen a case to admit further evidence where the hearing has concluded but judgment has not been delivered may be summarised as follows:

1. the further evidence is not merely admissible or even relevant, but so material that the interests of justice require its submission;

2. the further evidence, if accepted, would most probably affect the result of the case;

3. the further evidence could not by reasonable diligence have been discovered earlier; and

4. no prejudice would ensure to the other party by reason of the late admission of the further evidence.

141. I have also had regard to the principles set out by the High Court in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267, these being referred to by counsel for the defendant in his own submissions.

142. Mr Hart set out in his submissions the basis upon which he asserted this evidence was necessary on the basis of “fairness”. However, that is not the test. I frankly doubt whether the letters of instruction from Coal Mines Insurance to medical practitioners would have told the doctors what to find or otherwise directed their attention away from the plaintiff’s medical condition.

143. This is confirmed by the fact that the defendant’s letter to Dr Machart, which was able to be provided during the hearing because the defendant’s solicitors were the authors of that letter, played no part at all in any of the plaintiff’s submissions. I consider that the documents the plaintiff now sought to tender would have met a similar fate.

144. Even if the content of these letters of instruction was of the materiality claimed by the plaintiff, the plaintiff’s solicitors had had plenty of time to obtain it, having issued a subpoena in mid-2016 which had resulted in the production of a wide range of documents from Coal Mine Insurance, such as the letter from Coal Mines Insurance to Dr Debelak of 8 May 2014.

145. The prejudice to the defendant of being handed a bundle of documents after the conclusion of submissions which are asserted to be relevant to the case is substantial. In addition, it was implicit in Mr Hart’s submissions that not only did he seek to tender such documents, but he proposed to address me at some length as to their contents, and how these documents in some way indicated that I should not accept the opinions of the medical practitioners whose reports had gone into evidence without objection.

146. The provisions of ss 56-62 Civil Procedure Act 2005 (NSW), the desirability of finality to litigation and the need for proportionality in relation to costs issues are all issues of relevance. In addition, these are documents relevant at best to peripheral issues as to causation and quantum, not significant documents going to issues of liability, as well as being documents which could and should have been obtained under subpoena in the same way that other (and similar) documents from the plaintiff’s employer had been obtained.

147. Accordingly, it was for these reasons that I refused the plaintiff’s application to reopen.

Costs

148. At the request of the parties I have reserved the issue of costs.

Orders

1. Judgment for the defendant.

2. Costs reserved.

3. Liberty to restore in relation to costs.

4. Exhibits retained for 28 days.

**********

Amendments

25 May 2017 - Setting out issues with CaseLaw publishing rectified.

Decision last updated: 25 May 2017