Lisa Maria Maclean v Richmond Valley Council

[2025] NSWDC 189

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Maclean v Richmond Valley Council [2025] NSWDC 189

Hearing dates:

11-13 February 2025

Date of orders:

27 May 2025

Decision date:

27 May 2025

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

1   Judgment for the Defendant.

2   Plaintiff to pay Defendant’s costs.

Catchwords:

PERSONAL INJURY – scope of duty of care owed by Defendant/Council – whether Defendant/Council owed a duty of care – scope of Defendant/Council duty of care – whether Plaintiff pedestrian on a footpath exercised reasonable care – negligence of public authority Defendant/Council – fall on raised lip/edge of section of footpath in partial light – relevance of Defendant/Council’s footpath assessment and maintenance Policy – where Defendant/Council knew of the hazard – whether Defendant/Council breached its duty of care – ss 5B, 5C, 5D, 5E CLA – whether raised lip in footpath was an obvious hazard – ss 5F, 5H CLA – onus of proof of negative proposition that Defendant/Council failed to monitor the hazard where Defendant/Council had greater means to produce evidence – application of s 42 CLA – application of s 43A CLA – contributory negligence - DAMAGES – causation – assessment of damages for future loss where no expert medical opinion of natural course of progression of pre-existing advanced arthritis.

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5E, 5D, 5F, 5H, 5R, 5S, 16, 42, 43A and 45

Cases Cited:

Angel v Hawkesbury City Council [2008] NSWCA 130

Apollo Shower Screens Pty Ltd v Building Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561

Bathurst City Council v Cheeseman [2004] NSWCA 308

Chen b.h.t. v Kmart Australia Ltd [2023] NSWCA 96

Collins v Clarence Valley Council [2015] NSWCA 263

Council of the City of Sydney v Bishop [2019] NSWCA 157

Curtis v Harden Shire Council [2014] NSWCA 314

Ghantous v Hawkesbury City Council; Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29

Jones v Dunkel (1959) 101 CLR 298

Lombardi v Holroyd City Council & Anor [2002] NSWCA 252

Loxton v New South Wales [2001] NSWCA 194; [2004] Aust Torts Reports 81-667

Malec v Hutton Pty Ltd (1990) 169 CLR 683

Nightingale v Blacktown City Council (2015) 91 NSWLR 55; [2015] NSWCA 423

Nguyen v Northern Sydney Local Health District [2025] NSWCA 107

Purkess v Crittenden (1965) 114 CLR 164

Richmond Valley Council v Standing [2002] NSWCA 359

Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39

RTA v Dederer (2007) 234 CLR 330 [2007] HCA 42

Samco Pty Ltd v Wurth [2015] NSWCA 117

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332

Seltsam v Ghalelo [2005] NSWCA 208

Watts v Rake (1960) 108 CLR 158

Texts Cited:

-

Category:

Principal judgment

Parties:

Lisa Maria Maclean (Plaintiff)
Richmond Valley Council (Defendant)

Representation:

Counsel:
E Anderson (Plaintiff)
D Kelly (Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Gillis Delaney Lawyers (Defendant)

File Number(s):

2023/00458473

Publication restriction:

Nil

JUDGMENT

1. Lisa Marie Maclean (the “Plaintiff”) sues for personal injury damages, alleging breach of duty of care by the defendant, Richmond Valley Municipal Council (the “Defendant”), consequent of injuries suffered by her in a fall on a footpath on 8 March 2023. She was then 55 years of age, living alone in a 2 bedroom plus sleepout, one bathroom house with a yard at 31 Colche Street, Casino, NSW. The Civil Liability Act 2002 (NSW) (“CLA”) applies in the determination of these proceedings.

LIABILITY

2. The Plaintiff tripped on the raised lip of a concrete section of the footpath outside 37 Colche Street; that is, in front of a house, on the same side of the street, and 3 properties removed from her home. Simpson Parade met Colche Street between numbers 35 and 37.

3. The Plaintiff fell when nearly home from her daily, morning walk. As was her habit to do, she had departed from home on her regular route at about 5:30 AM. New South Wales Ambulance received the call from 000 at 5:54 AM. The Plaintiff had sought assistance by calling her daughter Kristen and a friend, being unsuccessful in both instances, before calling 000. On the whole of the evidence her fall occurred at about 5:45 AM. The timing of the fall is relevant to the quality of daylight providing visibility to the footpath surface. The Plaintiff described it as being partial light. No evidence of other light sources, such as from streetlights, was given. Indeed, the evidence on the subject of visibility was sparse.

4. The mechanism of her fall was that her left foot tripped against the raised lip of a concrete footpath section. After her fall, the Plaintiff measured the lip at the point she believed she tripped to be 23mm above the level of the preceding concrete footpath surface. The parties frequently referred to this as the “height differential”. The Plaintiff stumbled forward, suffered a cut to her left palm as she grabbed the metal front fence of number 37, and continued to fall onto her outstretched right arm and knees against the concrete. She also grazed the side of her face. In all, she travelled more than 3m in her stumbling course to the footpath.

5. The Defendant’s Operational Policy for Inspection, Assessment and Maintenance of Footpaths and Cycleways (Exhibit E - “the Policy”) provided guidelines aimed at reducing the risk of injury to the public and consequent exposure of the Defendant to the possibility of claims against it in respect of the footpaths and cycleways it managed. Under the Policy, two approaches were provided for. What I will call the “Inspection” approach involved inspection and hazard identification leading to hazard evaluation and intervention-level prioritisation. What I will call the “Reactive” approach was triggered by complaints, requests and reports received via the Defendant’s Customer Request Management System.

6. Following discharge from hospital on the day of her fall, the Plaintiff notified the Defendant and, in accordance with the Reactive approach, an officer of the Defendant attended the site of the fall that same day and “highlighted” with yellow paint the raised section. The next day, being 9 March 2023, Defendant’s workers attended the site and removed the height differential by grinding.

7. Exhibit A photographs show the subject joint in the concrete path immediately after the Plaintiff’s return from hospital. She marked ‘X’ where she believed her toe hit the raised lip, causing her to fall, and, with another ‘X’, where she believed she landed. Exhibit B includes photographs taken on 10 March 2023 which show the joint after removal of the height differential by the Defendant workers. The yellow paint seen in those photographs is remnant of the marking made by a Defendant worker on the afternoon of the Plaintiff’s fall.

8. In the Exhibit B photographs, the path before the place of fall, outside number 37 and up to and beyond Simpson Street, in the direction of the Plaintiff’s walk to her home at number 31, can be seen. Plainly, the path was in good condition and vision of it was not blocked or obscured. Exhibit F includes a photograph in which the height of the lip at the point at which the Plaintiff believed she tripped is shown by tape measure to be 23mm. Exhibit H contains a 9 March 2023 internal email by the Defendant’s worker, Mr Robertson. He attended in response to the Plaintiff’s complaint report made to Council on 8 March 2023 at 2:09 PM. He reported:

“Myself and Jack met… [the Plaintiff] this morning at her house 8:30 AM.

Before we met her we inspected the location where she fell.

• There is a construction joint in the footpath that has moved and it has created a trip hazard across the path with (sic) from 5mm to 25mm.

• The rest of the footpath in the near vicinity is in good condition.

• There are no site restriction or vegetation issues and the footpath was clean.

• It was daylight when she tripped.

• No other contributing factors.

• I suspect the recent wet weather may be the cause of the concrete movement.

We chatted with Lisa and let her know how we inspect and prioritise footpath issues and let her know how we are going to proceed with this one.

We have highlighted it with yellow paint and will issue instructions to road and drainage crew to carry out a repair as soon as we can.

Lisa acknowledged it was just a silly accident and that accidents happen. She walks that path every day.”

The Plaintiff’s evidence

9. The Plaintiff did not recall parts of the conversation set out in Mr Robertson’s email, but she denied having told him that it was daylight when she tripped. She conceded that she did tell Mr Robertson that it was just a silly accident, and that accidents happen. Mr Robertson was not called to give evidence.

10. In evidence-in-chief, the Plaintiff said that it was dark when she left home for her regular half-hour (in cross examination, up to one hour: T 77.20) walk at 5:30 AM on that early Autumn morning, and “maybe dark turning light” when returning home: T 37.30. She could see up Colche Street to the Barker Street intersection as “light was coming up for the day”: T 38.45. The Plaintiff had almost completed her morning walk and was only three residential properties and the breadth of Simpson Parade, by distance, from her home at the time of the fall.

11. The Plaintiff denied having ever previously seen the lip on which she tripped: T 40.25-30; repeated in cross-examination: T 80.05. On the whole of the evidence, including her familiarity with the section of footpath, I found the accuracy of that claim, as it was stated by her, difficult to accept. Her further oral evidence (below) showed that she had thousands of times traversed the subject section of the footpath during daylight. Also, the objective evidence (Exhibit G) showed that the lip had presented a 15-20mm height differential for at least 6 years.

12. In my assessment, on the whole of the evidence (see answers in cross-examination below), the Plaintiff had not paid particular attention to the visible lip formed by the height differential between the concrete foot path sections.

13. In cross-examination, the Plaintiff agreed that if the 15-20mm lip existed for at least 6 years preceding her fall, she had walked over it in all conditions of light without tripping or stumbling: T 80.20. When she walked on Summer mornings, the “Sun was up and brighter”: T 77.30. Sometimes, in Winter, the Plaintiff took her walk in the afternoon because it was too dark, or cold, or both, in the mornings: T 76.10. There was daylight when she took her walk in the afternoon: T 77.35. Over the 13 years she had lived at her residence, she usually took the walk 7 days of most weeks: T 76. She agreed that she had crossed the point at which she fell thousands of times: T 76.45 - 77.02.

14. The Plaintiff was wearing jogging shoes. She does not require spectacles. She was not challenged as to her visual acuity or as to the appropriateness of her footwear.

15. In cross-examination, the Plaintiff gave the following answers (T 77.35 - 79.22):

“Q. But in any event, you agree, do you not, that when you go for a walk, whether in the middle of the day on a bright sunny day or in the middle of the night on a dark night where you can't see much, it's a matter for you to make sure that you can see where you're putting your feet for your own safety, do you agree with that?

A. No, cause if I'm looking straight ahead, I'm not looking at the ground.

Q. You're saying if you walk anywhere and just look straight ahead without looking at the ground, if you trip and fall on something, you say that's not your fault?

A. I don't think it's my fault, no. ……

Q. You agree though, do you not, that when you go for a walk on a footpath or on a nature strip outside in lieu of a footpath, there could be any number of things that you have to see and avoid, correct?

A. Correct.

Q. For example, this sort of change in height in the footpath?

A. So prior to my accident, I was probably more easy‑going and walking. Now since the accident, I look at everything, I'd take every step that I take, I watch where I put my feet.

Q. Do you agree though that you need to do that because there are things that could be on the footpath in front of you that you need to observe, you need to pay attention to?

A. Yes.

Q. For example, the sort of lip that you'd tripped on, on the day, correct?

A. Possibly…………

Q. In any event you're aware from your experience that you had to be alert to the possibility, for example, that there could be rocks or things like that that you wouldn't want to step on, on a footpath?

A. Yes.

Q. Sticks?

A. Yes.

Q. Cane toads, yes?

A. Yes.

Q. Even snakes?

A. Yes.”

16. As I heard the Plaintiff’s evidence, I understood that she was aware at the time of her fall that, when walking on a public footpath, she might encounter hazards which might cause her to fall, including uneven surfaces, and, possibly, a lip between concrete sections such as the one against which her toe hit, causing her fall. I also understood that, prior to her fall, she was not paying attention to the surface of the footpath.

17. The Plaintiff did not give further evidence of her ability to discern the lip. She did not give evidence, for instance, of having inspected the pathway and of discovering the lip immediately following her fall. In the above quoted passages of her evidence, she conceded that she was not watching the “ground”, being the pathway upon which she was walking. Her evidence was not of mid-night darkness, although she did say that, despite morning light coming, it was “dark”. As I have already observed, the “X” marked by her during evidence on Exhibit A is the location at which she believed she fell (T 41.40). The only evidence she gave of her basis for that belief is that she “thinks” that she was more to the left side of the pathway (T 39.29). As I heard her evidence, I did not understand the Plaintiff at any point to describe the extent to which the lip was discernible had she been looking at the pathway as she was walking up Colche Street approaching the house, number 37. She did not say that it was not discernible.

18. It is the Plaintiff’s burden to prove the extent to which, if at all, it was difficult for a pedestrian taking reasonable care for their own safety to discern the height differential presented by the lip at the time of her fall. Her evidence does not permit me to do more than reckon on the basis of the sparse evidence of light and visibility and the objective evidence of the lip as inspected on 21 March 2017 (Exhibit G), and on 8 March 2023 (Exhibits A, B and F) and as detailed in the 9 March 2023 email report (Exhibit H).

Hazard classification of “Medium” – the Policy

19. On 21 March 2017, in accordance with the Inspection approach under its Policy, the Defendant performed an inspection of the footpath and recorded a trip hazard of greater or equal to 15mm and less than 20mm, outside number 37. Council officers assessed its priority at “Medium”: Exhibit G. The location map shows the place of that assessed hazard. In combination with the Exhibit A, B and F photographs, and the evidence of the Plaintiff, I am satisfied that, on the balance of probabilities, Exhibit G records an assessment of the lip at the concrete footpath joint upon which the Plaintiff tripped as it was 6 years prior to her fall. I reject the Defendant’s submission to the contrary. My finding is consistent with that other objective evidence because those photographs show no other height differential points in the proximity of the red dot in front of house number 37 where she fell and because the red dot in front of number 37 is tagged “Movement Medium”: Exhibit G.

20. The Defendant argued that because the height differential was measured at less than 20mm on 21 March 2017 (Exhibit G), and the Policy Pathway Inspection Guideline (Exhibit E, page 6) described a “Trip” as where the pathway is raised more than 20mm, the Pathway Inspection Guidelines meant (alone) that no proactive intervention was required.

21. I do not accept the Defendant’s argument. It fails to appreciate that steps 3, 4 and 5 in the Flowchart Procedures (Exhibit E, page 5) were engaged in the hazard evaluation, intervention level, risk rating determination for risk action priority and control mechanism determination. The worker, who made the assessment on 21 March 2017, was to employ the Pathway Inspection Guideline describing “Trip” with the advantage of inspection of the hazard in its environment, including condition of the path, use by children or the elderly, high, medium or low traffic (Flowchart Procedures, 2 – left column) and then, reference to “Table 1 – Footpath Risk Action Response” guided the worker to determine the Priority. With that advantage of inspection, the worker selected priority “Medium”.

22. During closing oral arguments, I had offered, on a similar employment of the page 6 guideline of a “trip” hazard being that which is more than 20mm, that the subject lip ought to have been allocated the Priority of “Low”. During arguments, I acknowledged that to be wrong: T 134.15-30.

23. In my view, nothing in the Policy (Exhibit E) or in the 2021 Inspection Report (Exhibit G) defined with precision a priority category “Medium” hazard or a precise response for correction of a “Medium” hazard. Under the heading “Control of Risk Exposure” (page 3), the Policy stated that “Risk Action Response Times are determined on the basis of priority and Councils (sic) ability to respond.” On page 4 of the Policy, “Table 1 - Footpath Risk Action Response”, provided for a priority “Medium” hazard the control mechanism of “Program into maintenance works” in a response time of “as resources permit but within three months.” This could mean either, to carry out the actual remediation work within 3 months, to enter the remediation work into a program for works to be carried out within an outside time frame of 3 months, or within 3 months to enter the hazard into a program for the remedial work to be carried out according to priorities for works, as resources permitted. [see [28]-[30] following].

24. So it was, on 21 March 2017, the Defendant, by its worker at inspection, determined to allocate a priority of “Medium”, even though the lip was raised less than 20mm: Exhibit G. There could be all manner of considerations of that worker for the attribution of that priority.

Defendant Knowledge and Reaction to the Hazard

25. The Plaintiff submitted that, despite the Defendant being on notice of the height differential from the 21 March 2017 inspection, and determining that grinding was required to remediate it, the Defendant did not undertake any reasonable measures, or any measures, to rectify or remediate the hazard prior to the Plaintiff’s fall: Plaintiff Closing Written Submissions [47]-[52].

26. The Defendant and Plaintiff’s submissions principally focused on the Inspection approach, but not on the ongoing Reactive approach, under the Policy. That the Defendant operated a complaint and incident response service, the record of which did not show receipt of any complaint or notice of any incident associated with the subject lip, was nonetheless evidence of ongoing management of the risk over those 6 years. What I have called the Reactive approach was, in that sense, part of the Defendant’s accident prevention management preceding the fall. It was a proactive precaution in that sense.

27. None of those definitions or expressions elsewhere in other documentation of the Defendant in evidence identify the duration of a maintenance works program. It is conceivable on the wording of the Policy that correction of the subject 15 to 20mm height differential, inspected and evaluated on 21 March 2017, could have been further and generally subject to Council’s triage of responses to hazards by allocation of resources as might be applied amongst other hazards and works as arose from time to time going forward from 21 March 2017.

25. The above stated construction of the Policy is consistent with the other provisions for response to “Low” and “High” priority hazards. I have observed that for a priority “Medium” category hazard, the Policy, set out the response of programming rectification of the hazard amongst all maintenance works; whereas a priority “Low” hazard earned the control mechanism of consideration of whether action needed to be taken, as well as monitoring for further deterioration, and a priority “High” hazard earned the control mechanism of being temporarily made safe within 1 day and made safe by effective repair or replacement within 7 days.

26. The Policy’s “Flowchart Procedures” (page 5) for inspection, pursuant to the Inspection approach, is also consistent with this construction because it allocated inspection of “Medium” to be “as determined by Manager Asset Planning”. The Policy repeatedly stated that it provided guidelines for footpath hazard management only and that responses were subject to budgetary constraints.

27. In my opinion, the expression “Medium”, pursuant to the Policy, did not prescribe a Defendant commitment internally for remediation within a specified time of the lip identified and evaluated in the 21 March 2017 report (Exhibit G). Further the Policy did not provide for a commitment to rectify upon which legal action for breach could be founded. Counsel for the Plaintiff and for the Defendant, in the development of the competing arguments, spoke of the Exhibit E Policy and the Exhibit G report with reference to an “intervention threshold”: Defence submission T 133.24; Plaintiff submission T 139.45. For the Plaintiff, it was argued that due to the trip hazard having been identified 6 years before her fall, those documents support her complaint that something should have been done to remediate the hazard. Reference was made to the absence of the Defendant calling a Council employee to explain why the Defendant, over that extended period, did not have the opportunity to remediate the trip point: T 139.

28. Ultimately, and, in my view, correctly, counsel for the Plaintiff conceded that nothing in the Policy defined an intervention threshold: “There is no evidence before the Court as to what the intervention threshold is for the Council internally to say, “Okay, were going to go out and fix this.”: T 169.20.

29. I repeat, in my view, the Defendant’s internal Policy did not, at law, settle the standard of care or scope of any duty owed by the Defendant to the Plaintiff and other pedestrians. Those issues require determination according to the general law. It cannot be that an internal policy of a Municipal Council is to be employed as prescribing for the Council a higher or lower standard of care at law than might be owed by another Council. What the Defendant’s system of classifying hazards (and common sense) demonstrates is that the height differential exposed pedestrians to a possible risk of injury which was not far-fetched or fanciful: McColl JA (Mason P and Hunt JA agreeing) in Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [90].

30. The Defendant submitted that Mr Robertson’s description (quoted above from Exhibit H) of the trip point in his email on 9 March 2023 shows that the lip developed only shortly before the Plaintiff’s fall. The Defendant relied on Mr Robertson’s reference to possible effects of recent rainfall. I do not find that submission persuasive. When examined Mr Robertson’s hypothesis is without objective measure. It is possible to read Mr Robertson’s email as if he was attributing the whole of the movement to the recent wet weather. It does not identify the movement, he was, to his understanding referring to. It does not say what period of days, weeks or months he refers to as “recent”. The Defendant’s Customer Request Management System had not recorded receipt of a complaint or incident request concerning the lip. Mr Robertson did not refer to that fact of clear antecedent record. He did not say whether he was aware of the height differential measured in 2017 or as it was at any time prior to 8 March 2023. Indeed, it would appear that he was not aware of it prior. He made no historical reference at all. His comment was only a hypothesis for which the evidence is insufficient to infer a fact on the balance of probabilities: Jones v Dunkel (1959) 101 CLR 298 per Dixon CJ at 304-305.

31. It follows that I find as a fact that the Defendant was on notice and had actual knowledge of the hazard presented by the 15 to 20 mm leading-edge lip of the section of concrete for 6 years before the Plaintiff’s fall. As the case was run, there is no contest that at the point at which the Plaintiff’s toe caught the lip, the height differential was 23mm. The logical conclusion at which I arrive, on the balance of probabilities, is that over the passage of 6 years or at some unidentified date or dates within that period, the height differential at the point of the trip had increased by a few millimetres. Whatever occurred, the Defendant’s reactive approach had not been triggered by report of incident or complaint prior to the Plaintiff’s fall.

32. During closing oral submissions, the Defendant stated that, should I find as I have above ([34] above), it relinquished reliance on s 45 CLA as a defence.

Whether the Defendant was negligent – Ss 5B, 5E, 5D, 5F and 5H CLA

36. The Defendant admitted it owed the Plaintiff a duty of care if she was exercising reasonable care for her own safety, but not otherwise.

37. The Defendant admitted it was responsible for the care, control, construction, erection, inspection, management, maintenance and repair of the footpath.

38. The Plaintiff identified the particular risk of harm as someone tripping and falling: T 139.15. In my view, the actual risk of injury is properly characterised as the risk of a pedestrian tripping on the raised lip of the concrete section and falling onto the concrete footpath: RTA v Dederer (2007) 234 CLR 330 per Gummow J at [59]-[60].

39. For the purposes of s 5B(1)(a) of the CLA, I have already found that the Defendant was aware of a height differential approaching 20mm for approximately 6 years which exposed pedestrians to a possible risk of injury by tripping. The risk of harm occurring was not far-fetched or fanciful. It was foreseeable.

40. The risk that at some time over 6 years the concrete sections might move more and the height differential increase or decrease by a few millimetres was also foreseeable, but the evidence does not establish that, on the balance of probabilities, the increase of those few millimetres caused the Plaintiff’s trip. This is because the plaintiff had traversed it thousands of times and other pedestrians had also traversed it, not no incident or complaint had been made to the Defendant. I have found that the hypothesis of movement caused by recent rain was a purely speculative proposition.

41. That the Defendant had actual knowledge from 2017 of the trip hazard merely removes the Defendant’s right to seek immunity pursuant to section 45 of the CLA, as the Defendant properly conceded. However, the Defendant’s actual knowledge of the particular risk does not, of itself, give rise to liability: Nightingale v Council (2015) 91 NSWLR 556.

42. On page 4 of the Exhibit E Policy, it lists AS/NZ 4360:1995 Risk Management and NAASRA Guides to Traffic Engineering Practice Part 13 as “References”. I raised these references with the parties and no submissions based on them were received. In these circumstances, and in the absence of expert opinion explaining their relevance, if any, I ignore them.

43. By its Statement of Claim, the Plaintiff alleged that the Defendant was negligent for failing to take precautions, including marking and/or highlighting any defects and/or trip hazards it had identified in the footpath during the 21 March 2017 inspection and evaluation of the hazard, for failing to perform temporary restoration works, including but not limited to grinding down the trip hazard required by the Defendant’s own system with respect to trip hazards, and for failing to adequately and/or satisfactorily maintain and repair the footpath following identification of the actual risk of injury faced by the Plaintiff in a timely manner or at all.

44. I note the many particulars of negligence pleaded at [13] of the Statement of Claim. As the case was run, the above adequately encompasses the issues.

45. The Plaintiff’s focus was upon the Exhibit G, 21 March 2017, report recording that the appropriate action required was to remove the lip by grinding it away. That is the only evidence of what, if any, precautionary step might have been taken by the Defendant to remove the trip hazard before the Plaintiff’s fall. The day after the Plaintiff’s fall, the Defendant removed the lip by grinding. At the hearing, there was no contest that grinding the lip away was the precaution to take should the Defendant have had a duty of care to remove the lip before the Plaintiff fell. We know that Mr Robertson painted the lip yellow on 8 March before it was ground away on 9 March, but there was no evidence adduced that the yellow paint would be visibly discernible in the then conditions of light, had the Plaintiff looked down. I repeat, there was no evidence of street lighting.

46. By written submissions on 3 March 2025, the Plaintiff submitted that inspection and maintenance activities over the 6 years were solely within the knowledge of the Defendant. The Plaintiff also submitted that the Defendant was required to call evidence of monitoring of the trip hazard after having identified it 6 years before the Plaintiff’s fall. Because “Council elected not to call evidence in this regard”, the Plaintiff argued an inference arose that there was no monitoring for further deterioration of the footpath. The Plaintiff relied on Apollo Shower Screens Pty Ltd v Building Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 (“Apollo Shower Case”) on this point.

47. The principle in the Apollo Shower Case was reaffirmed in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39. There, at [78], his Honour Campbell JA referred to the Apollo Shower Case and stated that:

“If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If a defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument.”

48. What the Plaintiff did not identify in further submissions is the sufficient evidence relied upon from which, if accepted, the negative proposition that the council did not monitor the footpath for further deterioration may be inferred. There was a complete absence of evidence from the Plaintiff that would lead to an inference that the Council did not visit the site of the trip between the 2017 report and the Plaintiff’s fall in 2023. For example, there was no question asked of the Plaintiff as to whether she had seen any Council workers in the street, or for any maintenance purpose, visiting the location, or questions to such an effect.

49. In the present case, I understand that the parties do not contest the fact that, over that proceeding period of six years, the Defendant did not receive any complaint or report of any incident from any person of the trip hazard. Council did monitor the risk to the extent that it operated the Customer Request Maintenance System through which any complaint, request or report of incident would have triggered the Reactive Approach. Particularly, given that Council’s Policy for preventative approach involved both its Inspection and Reactive pathways, it is not apparent to me that there is any basis to infer the Defendant was negligent for inactivity, or even failed to comply with its Policy.

50. In my opinion, in the present case, the principle (Watts v Rake (1960) 108 CLR 158) applied in the Apollo Shower Case does not support the Plaintiff’s submission. Both the absence of evidence of the negative proposition, and, separately, the fact that there were no complaints or reported events of injury concerning the lip whilst the Defendant monitored these things, combined with the actual evidence of the Defendant’s immediate inspection, evaluation and works in response to the Plaintiff’s report of her trip, is all evidence opposite an inference that the Defendant simply ignored its Policy for prevention and did not in fact, monitor the site for further deterioration. Because of this, I conclude that the Plaintiff submission should be rejected.

51. I now turn to the Defendant’s argument that it did not owe the Plaintiff the duty of care alleged because the Plaintiff was not exercising reasonable care for her own safety. It is convenient to also consider the Defendant’s denial of liability on the basis that tripping on the lip and suffering harm was an obvious risk to a reasonable person in the position of the Plaintiff within the meaning of s 5F of the CLA, and therefore it had no duty to warn the Plaintiff of the Risk: s 5H of the CLA.

52. As I stated to the parties during the hearing, it is my opinion that there is no magic in the word “hazard”. A height differential of only 1mm between concrete sections of footpath could be the point of a trip should the toe of a pedestrian’s shoe catch on it, but public footpaths are not expected to be perfectly level, and pedestrians taking reasonable care for their own safety are expected to negotiate imperfections. The question in this case, as in so many which have preceded it, is whether the Defendant Council is liable to the Plaintiff in negligence for the 23mm height differential on the Colche Street footpath against which the Plaintiff tripped and fell.

53. In cases such as this, observations made by the High Court in the decision of Ghantous v Hawkesbury City Council; Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 provide guidance on the question of whether the risk of a person tripping, such as the Plaintiff, was obvious. Those observations are also helpful when considering the scope of duty, the standard of care owed and the related question of breach.

54. Gleeson CJ observed at [6] that, despite the passing of a statute in England in 1961 affecting common law liability, and it becoming easier for a pedestrian who was injured by failing on a footpath to succeed in an action for damages resulting from failure on part of the responsible authority to maintain and repair the footpath, an injured plaintiff still had to:

“… show that the… footpath was dangerous… not merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.”

55. The plurality of Gaudron, McHugh and Gummow JJ said at [163], of the duty owed to pedestrians, that:

“The formulation of the duty in terms which require that a road [or footpath in the present case] be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence.”

56. That pedestrians negotiating public footpaths are expected to take reasonable care for their own safety and are not entitled to expect that the surface will be smooth is the constant observation of courts. In Richmond Valley Council v Standing [2002] NSWCA 359, Heydon JA (as his Honour then was) (Handley and Sheller JA agreeing) said at [54]:

“The unevenness of paving slabs, cracks and holes in footpaths all over the country and in circumstances where there is no concealment of any of the features of the site, are to be expected.”

57. Heydon JA referred with approval at [32] to the statement of Brownie AJA in Lombardi v Holroyd City Council & Anor [2002] NSWCA 252:

“even if one accepted the evidence… that pedestrians ordinarily raise their feet about 10mm, when walking, I do not think that, without more, a height differential of 25mm between two footpath slabs means that an inference should be drawn that the Council was negligent in failing to rectify the situation."

58. Consistent with these observations are those made in Bathurst City Council v Cheeseman [2004] NSWCA 308, Ipp JA (McColl JA and Sperling J agreeing) said at [7] that a raise on the lip of a footpath by 20mm is a “type of every day minor hazard” that pedestrians are to expect and avoid. Ipp JA observed at [25] that the fact it took only three hours to grind away the height differential did not establish that it was unreasonable that remediating action was not to have been taken proactively.

59. Ipp JA’s observation in that case of consideration of the significance, at law, of the fact of grinding to rectify the risk, is readily applicable in this case to the question of breach.

60. I am mindful that, in the present case, it was to some degree dark when the Plaintiff fell. But, in my opinion, the trip hazard of 23mm, vision of which by a pedestrian taking reasonable care for their own safety was not impeded in any way, was simply a risk hazard to be expected, be it day or night. There was no evidence that the hazard represented some form of trap, or that it was not discernible, as, for instance, was the situation in Angel v Hawkesbury City Council [2008] NSWCA 130. The burden of proof rested on the Plaintiff to prove that the hazard was not easily discernible. In fact, courts have found that, when pedestrians walk when an area is not well lit, it can be expected that they will increase their vigilance so as to take reasonable care for their own safety: Council of the City of Sydney v Bishop [2019] NSWCA 157 per Basten JA (Macfarlen and Brereton JA agreeing) at [24].

61. There was no evidence adduced that showed that the Plaintiff exercised increased vigilance due to the darkness or low light. Her evidence quoted above was, in fact, to the contrary. The Plaintiff was not looking at the path. She was expected by the law to walk with reasonable caution because of the possibility of engaging potential footpath hazards such as the 23mm lip. Indeed, in the extended passage of her evidence quoted above, she accepted that she was aware of the possibility of such a hazard even though she did not concede ever having noticed the particular hazard during the thousands of times she had traversed it.

62. My findings of fact lead to the conclusion that the raised lip had been present at the measure of approximately and at least 15 to 20mm for 6 years, during which time, at day and night, the Plaintiff had traversed it thousands of times as, assumedly, had other footpath users. Photographed at 23mm in daylight just after her fall, it could not be sensibly argued that it was not obvious. There was no argument against the commonsense proposition that it would not have been approximately as obvious at 15 to 20mm.

63. The Plaintiff was also not able to be precise as to the exact location of her trip. She was only able to say “I think I was more to the left on the pathway”: T 39.30. The accepted height differential measurement from left to right across the footpath of 5 to 25mm by Mr Robertson can be seen in the Exhibit A photograph.

58. When walking in the low vision conditions of early morning light or darkness on 8 March 2023, the Plaintiff failed to be mindful of the lip, of which she had enjoyed a great opportunity to be aware. Her evidence that, prior to her fall, she walked just by looking straight ahead and not at the ground, strongly infers that she walked without reasonable caution for the surface of the footpath when in the early morning partial-light.

59. I find that the Defendant did not owe the duty of care alleged because the Plaintiff failed to exercise reasonable care in the form of caution towards the trip hazard of the height differential between the footpath concrete sections and, in consequence, tripped upon it.

60. In the event I am wrong, and the Defendant did owe the Plaintiff the duty of care alleged, I proceed to assess the question of breach pursuant to s 5B CLA. I have already determined that the risk of harm was foreseeable. Significant injury must sensibly be seen as a foreseeable consequence of falling onto the concrete path and therefore the risk was not insignificant for the purposes of ss 5B(1)(b) and (2)(b) CLA. However, that no complaint, request or reported incident had been received by the Defendant in relation to the lip, and that the Plaintiff had traversed it thousands of times without incident, are facts which cause me to find that the probability of the harm occurring was low for the purposes of s 5B(2)(a) CLA.

61. In closing oral submissions, the Plaintiff put that it was reasonable for the Defendant to have taken the precaution of grinding away the height differential because, as shown, the Defendant readily did that in response to the Plaintiff’s report of her fall. The Defendant applied spray paint to the point of her fall, and, the next day, ground down the height differential T 140.50-141.20. But Exhibit H shows, as I responded to the Plaintiff counsel, that the Defendant had to pull its work team and equipment off other work (the “fogswell job”) to achieve that response. In my opinion, that evidence shows that there was some burden and prioritising of application of resources in the taking of that precaution rectifying that height differential.

62. Mr Palmer’s email at 4:39 PM (Exhibit H) is real evidence affirmatively showing what the law recognises; the Defendant’s reaction of grinding to rectify the height differential on 9 March 2023 was part of its burden of taking precautions to avoid similar risks throughout the municipality. As Ipp JA observed in Bathurst City Council v Cheeseman [2004] NSWCA 308, that reaction does not of itself does not give rise to or speak of the liability in respect of the risk. Nor does it of itself give rise to or affect liability in respect of the risk or constitute an admission of liability in connection with the risk: s 5C(c) CLA.

63. In the circumstances of there being no complaints, requests or incidents preceding, it was not unreasonable for the Defendant on a proactive test basis not to have taken those precautions identified by the Plaintiff prior to the Plaintiff’s fall: ss 5B(1)(c) and (2) CLA.

64. Separate consideration of s 5D CLA causes me to find that the Plaintiff’s claim of negligence on the basis of a duty of care to rectify the height differential of the lip, the view of which was not obstructed, and its height differential being only 23mm, proposes a scope of liability beyond that which is appropriate for the Defendant Council, as recognised in the case law to which I have referred.

65. I conclude that if the Defendant did owe to the Plaintiff the duty of care alleged, it did not breach that duty. The Defendant has not been shown to have been negligent. The Plaintiff’s injuries have not been shown to have been caused by the negligence alleged.

66. Further, in my opinion, the Defendant must succeed in its argument that the 23mm height differential presented by the lip in the footpath, which was unobscured from view, was an obvious risk because it was a matter of common knowledge that such a defect in the path should be expected. The Plaintiff conceded in her evidence that she should expect the possibility of such a hazard when traversing a footpath. The evidence of no complaint, request, or report of incident to the Defendant over the 6 year period when the height differential was 15mm-25mm shows the low probability of the risk occurring. As a matter of common sense, and pursuant to s 5F(3) CLA, that is not inconsistent with it being an obvious risk for the purposes of the CLA.

67. I find that the Plaintiff is to be presumed to have been aware of the risk as it was an obvious risk within the meaning of s 5F of the CLA. For the purposes of s 5H CLA, the Defendant did not owe a duty to warn her of the obvious risk of harm presented by the height differential at the lip against which the Plaintiff tripped and fell.

68. The Defendant’s reliance on its Policy of Inspection and Reaction approaches on the evidence, including of its response to the Plaintiff’s report of her incident after 6 years of no complaints, further persuades me that it did not breach its duty of care: s 42(d) CLA.

Contributory Negligence – sections 5R and 5S of the CLA

75. These reasons have extensively examined what I have determined to be the Plaintiff’s lack of care in that she failed to pay adequate attention to the footpath surface on which she was walking when it was well known to her and obviously presented the lip on which she tripped. As already stated, I find it difficult to accept the Plaintiff’s evidence that she did not notice the height differential at the lip, which, for 6 years, had been, at most, about 3mm less than it was when she tripped on it. To take reasonable care for her own safety, in the conditions of partial light, and when she was aware at least of the possibility of obstructions on the path, including of the lip against which she tripped, she was required to exercise caution for unevenness when walking. The Plaintiff ought to have known, and indeed, even on her own evidence, expect, the possibility of the type of risk of harm presented by the height differential at the lip.

76. If I be wrong on the question of the Defendant’s liability to this point, then I assess the Plaintiff’s contributory negligence for failing to take reasonable care for her own safety by exercising the required attention to the footpath surface at 50%.

Section 43A of the CLA

77. The Defendant also raised s 43A of the CLA as a defence to liability should it be found that it owed a duty of care to avoid the type of harm that was suffered by the Plaintiff. Section 43A works to exclude liability arising from the exercise (or failure to exercise) of a special statutory power unless the exercise (or lack thereof) was so unreasonable that no authority having the special statutory power in question could properly have thought the exercise (or lack thereof) to be reasonable.

78. Counsel for the Plaintiff argued in his Closing Written Submissions at [66] that the failure to erect a warning sign was a failure to erect a “traffic control facility”, the power to do so being a special statutory power conferred upon the Defendant Council: Collins v Clarence Valley Council [2015] NSWCA 263 at [169]. He then argued at [69] that the failure to attend upon (presumably he means erect warning signs) or repair the hazard was, in the circumstances, “so unreasonable that no authority having the special statutory power in question could properly consider the act of omission to be a reasonable exercise of, or failure to exercise, its power.” In other words, the Council did not act with a degree of reasonableness that would have otherwise afforded it the defence.

79. There was a noticeable difference between the oral and written submissions of the Plaintiff on this point. In oral submissions, counsel for the Plaintiff argued that there was a “carve-out” for “traffic control facilit[ies]” under s 43A and, as such, any act or omission in respect of special statutory powers was not covered by the defence if they related to “traffic control facilities”: T 140.42-47. It was the Plaintiff’s position in its oral submissions that ss 43A and 45 of the CLA mirrored each other in this respect:

“The submissions I made to you earlier in relation to the carveout of the definition of “roadwork” [in respect of s 45] I also say applies here because that’s the basis for the Council’s defence in relation to 43A. is that these things that they’re asked to do were considered to be as per the definition of “roadwork”, so I don’t wish to restate those earlier submissions… being related to a traffic control facility.”

80. I find that the proper construction of s 43A is that which was put forward by Plaintiff’s counsel in written submissions as opposed to oral submissions. I concur with counsel for the Defendant in his oral closing submissions at T 163.41-50 that:

“[The carve-out for traffic control facilities] … has no impact whatsoever on s 43A. 43A is not limited to carrying out roadwork or the like. It’s the exercise of any special statutory power.”

81. Counsel for the Plaintiff was right to point to the decision of the NSW Court of Appeal in Collins v Clarence Valley Council [2015] NSWCA 263 in closing written submissions. In that case, at [169]-[170], the Court of Appeal explicitly found that the erection of “traffic control facilities” was a special statutory power conferred upon Councils, meaning s 43A of the CLA could be enlivened in instances of an act or omission in respect of “traffic control facilities.”

82. I do not agree with the Plaintiff’s submissions that the Defendant failed to exercise its special statutory power in a manner that no sensible authority acting with due appreciation of its responsibilities could have. I reiterate that the Defendant’s conscientious Policy does not raise (or lower) the bar of expected conduct by which to comply with the common law and statutory requirements expected of councils to avoid liability for negligence. The cases concerning expected risks for pedestrians using footpaths to which I have referred lead me to conclude that a public authority could, in the same circumstances, reasonably determine that it should not prioritise grinding the height differential of 15-20mm observed in 2017 or the 5-25mm maximum height differential (measured on the day following the Plaintiff’s trip and fall) prior to the report of the Plaintiff’s incident.

83. The remarks made by Bathurst CJ in Curtis v Harden Shire Council [2014] NSWCA 314 at [6] have been helpful to me in making this determination:

“It is sufficient to say that what is important is that the standard is set by what a holder of the statutory power could properly consider reasonable. The Court must look at the matter having regard to what the authority in question could properly consider a reasonable exercise of the power. If the authority could properly consider what was done was a reasonable exercise of the power, then there will be no liability.”

84. Beazley P also observed in that case at [228] that falling short of the standard requires:

“Conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.

85. Should I have been wrong, and the Defendant did in fact breach its duty owed to the Plaintiff, I determine that the s 43A defence would prevent any liability arising for the Defendant Council in these circumstances.

DAMAGES

86. I have determined that the Plaintiff has failed to establish liability in the Defendant. In case I am wrong, I now assess damages.

87. The Plaintiff’s primary complaint on which she based her claim for compensatory damages is her bilateral knee disability. The primary issue between the parties in regard to damages was whether the Plaintiff’s bilateral knee disabilities are causally related to her fall: Plaintiff oral closing submissions T 152.05.

88. The causation argument focused on two parts of the evidence, being:

1. whether the Plaintiff’s complaints and oral evidence established a temporal connection between her fall and the onset of continuing knee pain and disability; and

2. the content of the documentary medical evidence.

89. The Defendant’s substantial submission in relation to damages is that because of a paucity of record of the Plaintiff’s complaints to doctors recording symptoms of pain and disability in her knees the causal nexus between the present state of her knees and the trauma of the fall was not proved on the balance of probabilities.

Objective and Expert Evidence

90. When the Plaintiff, on the date of injury, reported her fall incident to the Defendant, she was asked to email photographs of her injuries and photographs of where the incident happened. The Plaintiff's email at 2:13 PM on the date of the incident informed the Defendant that she had been conveyed by ambulance to Casino Hospital, undergone an x-ray of her hand and arm, undergone suturing of a laceration to her left hand, that she believed her right arm had been fractured, was to undergo review at the fracture clinic at Lismore Base Hospital on 15 March 2023, had undergone a CT for a head injury which scan was clear and that “both [of her] knees are in pain – right knee more painful” (bold added for emphasis). She attached 16 photographs, including a photograph showing abrasion of her knees: Exhibits H and D.

91. The NSW Ambulance notes record her given a history of tripping, injury to left hand, head strike to left orbit, abrasions [locations not specified], right elbow pain and obvious distress. A complaint of knee pain was not recorded: Exhibit Q. There is no record in the Casino Memorial Hospital notes of the Plaintiff complaining of knee pain: Exhibit M.

92. At 6:15 PM on the date of incident, the Plaintiff attended Doctor Garft at her local medical practice. The above referred to areas of injury are recorded as the focus of the consultation, and the doctor’s clinical notes include: "also landed on knees, R>L painful” (bold added for emphasis).

93. The objective evidence from the above referred to documents establishes that on the day of injury, the Plaintiff included trauma, abrasion and pain in relation to both knees amongst her complaints.

94. The Plaintiff next attended Lismore Base Hospital on 15 March 2023 for orthopaedic assessment of her right elbow. The clinical notes report that there was a possible displaced fracture of the radial head/neck. Dr Panwar reported that there was “still no convincing fracture line demonstrated in relation to radial head. Elbow joint effusion is noted. Alignment is unremarkable." Nothing significant in terms of the assessment of damages turns on whether or not there was in fact a fracture.

95. During cross-examination, the Plaintiff confirmed that she told the ambulance officers that she was not able to get up from the footpath. She said this was because she could not get onto her knees to get up. When challenged that she did not tell Dr Menon of knee pain when seeing him on 16 March 2023 and over the following weeks, the Plaintiff responded that she had told Dr Garft of that practice on the day of her fall of her knee pain and that she did tell Dr Menon and then she stopped seeing him at the practice because he would not help her. She did not attend that GP practice after March and until August 2023, but Dr Menon did organise for the Plaintiff to undergo radiological scanning.

96. On 24 August 2023, on referral from her local medical practitioner, the Plaintiff underwent MRI examination of both knees. That scanning was reported to reveal:

"Chronic extensive cartilage thinning present at the posterior patellar cartilage… Delamination with linear elevated signal intensity seen in the cartilage at the apex. Underlying reactive oedema and cystic change noted in the sub-cortical bone… Peripatellar adventitial bursitis with soft tissue oedema [in her left knee].”

97. Similar findings were made in relation to the right knee. The comment for both knees was “Grade III chondromalacia patellar with delaminating tear demonstrated.”

98. The clinical notes of the Plaintiff's local medical practice, which commence with her attendance on 3 August 2011, do not record any complaint of knee pain prior to her attendance at 6:15 PM on the day of the incident except for a fleeting complaint in 2017 following dancing at her 50th birthday party: Exhibit O.

99. Exhibit D is a collection of photographs showing the Plaintiff's injuries, including a slight grazing of the skin over her knees, a graze on the left-upper side of her face, the sutured left-hand, the Plaintiff wearing an arm sling and a photograph of her forearm from which I am not able to confidently ascertain anything of relevance to my assessment of damages.

100. The Plaintiff's treating orthopaedic surgeon, Dr Matthews, provided a report dated 28 March 2024 (one-year post-injury): Exhibit N. Dr Matthews recorded the Plaintiff’s given history that:

• prior to the incident the Plaintiff had not previously "… had any issues with the knees";

• the fall was directly onto her knees;

• anterior knee pain had been constant since the incident;

• pain was worse with activities, and she suffered great difficulty ascending and descending stairs, or standing from a seated position;

• minimal treatment has been undertaken except for simple analgesia and (recent to his consultation) physiotherapy; and

• whilst he was unable to access the actual MRI scans, the Plaintiff’s GP’s referral reported the results to him.

101. He commented that "[I suspect] that a lot of Lisa’s pain is coming from some arthritis behind the patella, however I was not able to see the films today." He recommended that the Plaintiff continue with simple analgesia and physiotherapy.

102. Dr Matthew’s subsequent report a week later, dated 5 April 2024, included his observations after having reviewed the August 2023 MRI scans. He opined that they showed advanced patello-femoral arthritis bilaterally and some reactive change within the medial compartment of the right knee. He reported to Dr Garft that he had advised the Plaintiff by telephone of treatment options available to her for bilateral patello-femoral joint arthritis including non-operative treatment with physiotherapy and analgesics, as she was then undertaking, as well as activity modification and weight loss. He encouraged her to lose weight as that would, in his opinion, have "a marked effect on her knee". At that stage he did not consider surgical treatment would be needed and sought to review the Plaintiff in three months.

103. On 4 July 2024, having reviewed the Plaintiff that day, Dr Matthews reported to Dr Garft that the Plaintiff had experienced some improvement with physiotherapy over three months but was still having daily difficulties with walking, ascending and descending stairs and sitting in a chair for a long time. The Plaintiff continued to take Paracetamol and Meloxicam (non-steroidal anti-inflammatory). He opined:

"Unfortunately, I think that non-operative measures are failing with Lisa, and we have briefly discussed the role of intra-articular injections or surgical management."

104. He recommended repeat MRI scans of the knees prior to consideration of surgical options.

105. On 12 September 2024, having reviewed repeat MRI knee scans, Dr Matthews advised the Plaintiff and reported to Dr Garft that, having considered other treatment modalities, including alternative types of surgery, the presence of compartment arthritis in her knees was such that total knee replacement was recommended. He recorded that the Plaintiff complained that her symptoms were getting increasingly worse, and her day-to-day activities were affected.

106. Because of the "pattern of arthritis", Dr Matthews considered simultaneous knee replacement surgery not to be preferred and recommended the knee replacements be staged to ensure that the Plaintiff achieve good relief on one side before embarking on knee replacement on the other side. He confirmed that the Plaintiff had elected to go ahead with the right side first because it was more symptomatic. The Plaintiff completed the paperwork and was placed on the surgery list at Lismore Base Hospital.

104. The Plaintiff attended General Orthopaedic specialist, Dr Graeme Doig, for medicolegal assessment at the direction of her solicitors. His report is dated 4 April 2024: Exhibit J.

105. Dr Doig was not briefed with the x-ray and MRI scans or with the opinion of Dr Matthews. He relied on the radiological reports for the results of investigations by x-ray and MRI. After accepting the Plaintiff's history of a fall with a direct impact on her patellae, he opined that her "… condition on examination is consistent with the history of the accident provided…"

106. In Dr Doig's opinion, the Plaintiff, at his consultation 1-year post incident, suffered:

• minor lacerations over the left elbow and left hand which had healed satisfactorily and with no permanent scarring;

• ongoing mild restrictions of her dominant right elbow; and

• bilateral blows to the patello-femoral articulations at both knees, aggravating pre-existing articular cartilage damage and rendering the arthritis permanently symptomatic.

110. Dr Doig assessed 5% loss of the efficient use of the dominant right arm at or above the elbow, 15% loss of efficient use of the right leg at or above the knee and 10% loss of efficient use of the left leg at or above the knee. In his opinion, the Plaintiff remained fit to continue her job in administrative duties until retirement but would have trouble should she attempt to undertake more physically demanding employment.

111. Dr Doig advised that ongoing passive treatment would not likely be symptomatically and functionally beneficial and that surgical intervention other than total knee replacement was also likely to be not beneficial. He reported that, in the event the Plaintiff's knees continued to deteriorate with post traumatic degeneration, knee replacement surgery may be required in the future at a cost of $15,000-$20,000.

112. Of her ongoing impairment, Dr Doig assessed that the Plaintiff had a 10 to 15 kg lifting, pushing and pulling restriction and limited bending, twisting and squatting through her lower extremities. He also assessed that she might require breaks from prolonged standing and walking and would have difficulty running. He recommended she avoid repetitive stair and hill climbing. He assessed her as unable to kneel and to require breaks from long-distance driving, including when driving a vehicle with automatic transmission. Because of her right arm impairment, he assessed that manipulating items weighing 5kg or more would have potential to exacerbate her symptoms.

113. As to the specific contribution of the trauma of the fall to the Plaintiff's impairments, Dr Doig assumed pre-existing articular-cartilage damage (ie. arthritis) affecting the patello-femoral joints, as reported on the MRI scans of August 2023:

“As there was a direct blow to the fronts of both knees, the articular-cartilage damage may have been caused and rendered permanently symptomatic by the fall."

114. Whilst not specifically within his field of specialist knowledge as an orthopaedist, he commented that the Plaintiff would have required 4 hours of domestic assistance for the first 5 weeks post injury and prior to returning to her employment, and thereafter 2 to 4 hours of assistance per week into the future, particularly regarding heavier tasks inside the home and gardening duties.

115. The Defendant relied on the medico-legal report of Dr Robinson, orthopaedic surgeon, dated 21 June 2024 (Exhibit 1). He consulted with the Plaintiff on 31 May 2024 and the opinion in his report was based solely on the history provided by the Plaintiff, clinical examination and letters of instructions. Unfortunately, the letter of instructions did not enclose radiological scans, reports on objective findings of radiological investigation or treating clinical notes. Dr Robinson was not provided the opportunity to assess the August 2023 MRI scans of the Plaintiff’s knees. He relied on the Plaintiff’s report of her scans as he understood her. He stated that the Plaintiff “has been told that this is satisfactory, with no evidence of problems which require further treatment.”

116. It is to be remembered that at that time the Plaintiff had been told to and was in fact only undergoing conservative treatment, her treating orthopaedic specialist Dr Matthews having advised the same based on the MRI scans and his clinical investigation. Dr Robinson reported that the Plaintiff reported that she was seeing Dr Matthews who had advised that there was arthritis in both knees and had discussed with her an injection. Dr Robinson did not express any opinion challenging the Plaintiff’s complaints of pain and disability. In the absence of accurate reporting of the objective radiological investigations, he concluded that the Plaintiff has sustained “soft tissue irritation of both knees and her elbow in the fall.” He had not viewed x-rays of the right elbow, either. In those circumstances.

117. He added his observation that he could “not detect whether there had been any pre-existing arthritic changes in the knees to support the tenderness present both medially and laterally in each,” but he “assume[d] there may be some underlying pre-arthritic change.” On that basis, Dr Robinson’s June 2024 prognosis was that her symptoms should settle with continuing conservative treatment. In that, he responsibly stated that he was assuming that no further treatment had been suggested by the treating orthopaedic specialist Dr Matthews.

118. In his supplementary report dated 20 June 2024 (Exhibit 1) (assumedly one of Dr Robinson’s report is wrongly dated), Dr Robinson commented on the report of the Plaintiff’s medico-legal expert Dr Doig dated 26 March 2024. Dr Robinson carefully reported that he had still not reviewed the MRI scans of the Plaintiff’s knees but said that which was reported in Dr Doig’s report did not, in his opinion, “suggest [bilateral knee replacement surgery] was imminent or necessarily related to the accident in question.” This caused Dr Robinson to conclude, “I believe any requirement for joint replacement in the future would be related to this pre-existing condition and the natural history of such.” Dr Robinson had been provided, with the notes of Casino Hospital on 8 March 2023.

119. I find little assistance in Exhibit 1 reports of Dr Robinson as he was not given the opportunity of his independent assessment of the radiological investigations.

120. Drs Doig and Robinson produced a joint expert report following their conclave. It is dated 23 January 2025: Exhibit K. That report does not disclose, nor is there any evidence to suggest, that either of them conducted a follow-up consultation after their first half 2024 examinations of the Plaintiff. They agreed that the injuries caused by the subject incident were:

• minor scarring of no significance to the left elbow and left hand and soft tissue injuries to the left elbow, face, hand and minor abrasions at the front of the knees;

• soft tissue injury (occult fracture possible) to the dominant right elbow; and

• aggravation of pre-existing patello-femoral joint arthritis.

121. The medico-legal experts agreed that the Plaintiff had received appropriate medical treatment. They noted that, at the specialist follow up, her surgeon Dr Matthews decided she needed total knee replacement. I comment, that this last statement by the experts logically, and with respect, appropriately, acknowledged that Dr Matthews followed the Plaintiff's progress with conservative treatment through consultations with her and on the basis of her lack of progress and radiological investigations, advised total knee replacement.

122. At the time of first half 2024 medico-legal consultations with Drs Doig and Robinson, as my above review of the documentary medical history shows, Dr Matthews favoured continuing with conservative treatment. This was before he advised the Plaintiff and Dr Garft that there was surgical need.

123. Drs Doig and Robinson agreed that the Plaintiff retains capacity for her ongoing employment in administrative tasks and work not involving crouching, bending or kneeling. They agree that the Plaintiff has had trouble with crouching, bending kneeling and lifting in regard to domestic tasks.

124. Without more, I understand that joint expert medico-legal opinion to mean that the Plaintiff will need assistance with domestic tasks such as cleaning and gardening, on top of gratuitous care from her family until undergoing bilateral knee joint replacements. There is no assessment of her need after bilateral knee replacements.

125. There is no evidence by a specialist within the field of domestic needs, such as is often received from an Occupational Therapist.

126. A statement by the Plaintiff's daughter, Kristin Seed (Exhibit C), described the Plaintiff's domestic needs consequent of her injury and as observed by her. She reported that the Plaintiff was independent in all domestic household and gardening duties prior to her injury but has since struggled with duties such as mopping floors, vacuuming, washing up dishes, cooking and shopping. In these matters, Ms Seed has helped voluntarily. Ms Seed was not required for oral evidence.

127. The expert medical witnesses, by their separate reports, supported a need for domestic assistance in the 5 weeks up to the Plaintiff’s return to work. Ms Seed described a list of activities in that period as follows:

"the plaintiff has had a need for assistance with household cleaning, vacuuming and dusting, laundry, cooking and preparation of meals, washing dishes/utensils, carrying wet laundry to the clothesline, attending to the garden generally, cleaning bathrooms, wiping tiles, toilet, bath and shower, shopping including carrying bags and groceries and similar items, making beds and tidying bedrooms as well as assistance with personal hygiene."

128. Ms Seed said that for the 6 weeks following injury she performed household assistance 14 hours per week. The common evidence, including that of Ms Seed, is that after the Plaintiff was not required to wear the right arm sling (at 6 weeks), her need for assistance reduced. Ms Seed said that the assistance she provided from 6 weeks after injury approximated to 4 hours per week and has continued.

129. The Plaintiff makes no claim for past domestic care. The Plaintiff says that she can cook, wash dishes and clean except for very high places because she cannot use a ladder, and very low places like under a bed because she cannot kneel. She says that she cannot perform the heavier duties. She says that her 12-year-old granddaughter mows the lawn. On the Plaintiff's evidence, I understand that within Ms Seed’s 4 hours per week is cooking performed for the Plaintiff and for Ms Seed and her children.

130. The appropriate concession is that the time spent by the family providing gratuitous care includes personal time, and that commercial assistance would likely satisfy the Plaintiff's needs more efficiently.

The Plaintiff’s Circumstances

131. The Plaintiff was born on 16 June 1967. She completed high school and first worked in supermarkets performing checkout and shop assistant duties. She then married and had two children. Her first child, a son Luke, is now deceased. On 2 December 1990 she gave birth to her daughter Kristin. She did not work from late 1990 to early 2001 while she was raising her children.

132. In October 2001, she commenced employment with New South Wales Health on a casual basis as a cleaner, food deliverer and otherwise general domestic service assistant. She later transitioned to a permanent part-time basis working 30 hours per week.

133. She commenced her current employment with New South Wales Health (Casino Community Health) in an administrative role, full-time, in 2007. Her duties include answering phones, registering clients, managing medical records and monthly site inspections. She interrupted work between May and July 2013 to provide care for her son Luke, who unfortunately passed away. Following a brief period, she returned to her administrative work later in 2013.

134. Her medical history included fracturing her right ankle in 1995 from which she fully recovered, and a right shoulder condition in March 2001 which caused her to lose 1 month of work for which she received worker’s compensation benefits. Physiotherapy for the right shoulder condition continued until late 2021.

135. Prior to her accident, the Plaintiff walked the 5 minutes from home to work and back daily unless it was raining or too hot. This was in addition to her regular morning walk already discussed in detail.

136. The Plaintiff's oral evidence of treatment, restrictions and 5 weeks off work following the accident meets with the history recorded by the expert medical witnesses, to which these reasons have already gone.

137. Regarding the scant notes recording her complaints of knee pain to doctors following her fall, the Plaintiff gave the following evidence at T 47.36-40, regarding which she was not shaken, when challenged in cross-examination:

“So when I had the fall and I couldn't get up and I went to hospital, the knees were not - I didn't focus on the knees because I had so much pain elsewhere, and it wasn't until I was on discharge from the hospital, they put - just prior to that, they took me out of a bed and put me in a recliner, and I couldn't get out of the recliner because the knees were starting to pain…”

138. After the incident, the Plaintiff found that she could not kneel, suffered difficulty bending her knees because the pain was so bad, and her knees were stiff. She said that she was basically on a lounge with her legs up for weeks and had trouble performing domestic tasks and getting into the shower and changing clothes. Her daughter Kristin took over the vacuuming, mopping, making the bed and doing the washing. She was unable to put clothes in the washing machine and had trouble hanging them on the line. It is to be remembered that for the first days there were stitches in her left hand and for the first 6 weeks her right dominant, arm was in a sling.

139. The Plaintiff said that her daughter Kristin still attends to much of the housework that causes her pain, including cleaning the bathroom, cleaning under the bed, cleaning skirting boards, dusting picture rails, mopping floors and vacuuming. Kristin also cooks about 4 meals a week and attends with her children on those occasions. Since the accident, Kristin takes the Plaintiff shopping and to doctors.

140. Her family perform the lawn and garden maintenance. Her friend Robin also attended every second day for several weeks after her accident to check on her, wash dishes, rub cream on her shoulders and on her knees until the Plaintiff could do that all for herself.

141. The Plaintiff estimated that presently Kristin provides about 1 hour of assistance a week to do the housework and, in addition, Robin’s help takes about another half hour per week: T 64.10-35. The Plaintiff's granddaughter, as well as mowing her lawn, performs garden maintenance, such as cutting trees. She comes every Sunday, and those duties take her 1 1/2 hours a fortnight: T 65.15-24. In addition, Kristin cleans the venetian blinds over about 2 to 3 hours every 6 weeks or so.

142. Prior to her fall, the Plaintiff was fully independent with domestic tasks and considered herself an active grandmother. Again, consistent with the history accepted by the expert witnesses, the Plaintiff described her difficulty walking up and down stairs, her inability to use a ladder and her inability to kneel and to clean in low places. She can dust, wash up, perform the washing and hang the washing on the line by walking sideways down the steps from the house. She would be willing to pay a third party to assist with domestic duties.

143. At work, she is unable to access lower cupboards and higher shelves. She has not had any further time off from work after returning 5 weeks following her injury. She takes 2 Panadol Osteo tablets thrice a day for knee pain and Meloxicam (non-steroidal anti-inflammatory) 7.5mg twice per day. She has gained significant weight and been recently diagnosed as suffering diabetes for which she takes a tablet. She takes a tablet for high cholesterol also. At one stage she had gained 14 kg.

144. Whereas prior to her injuries the Plaintiff was a keen quilter, it is now too hard for her to roll quilts. She cannot walk on sand at the beach because of the pain in her knees. She tends to stay at home because she does not like to be seen and to perceive herself as a person unable to do things when out. She is now able to drive. She does not feel confident to care for her youngest grandson who is 5 years old and is no longer able to play with her grandchildren as she previously enjoyed.

145. The Plaintiff confirmed that she is on the waiting list for staged bilateral knee replacements. She has been told the waiting list is 12 months and she has been on it since September 2024.

Assessment

146. It is my assessment that the Plaintiff's evidence was credible in relation to her knee pain. This is because the contemporaneous and objective evidence of the Plaintiff's email to the Defendant and the clinical note of Dr Garft on the date of the injury confirm that she complained of knee pain and thereafter she underwent the MRI scans of her knees in August 2023. I repeat, there is no medical history of significant knee symptoms preceding the Plaintiff's fall. Thereafter, the Plaintiff has followed a treatment regime as advised including for physiotherapy and specialist consultation with Dr Matthews. She will undergo bilateral knee replacement surgery.

147. On the whole of the evidence, I am satisfied that the Plaintiff suffered bilateral knee pain from the time of the fall. I am satisfied that the pain and disability in her knees is an ongoing consequence of the trauma to her knees suffered during the fall. The joint expert report (Exhibit K) shows that the medico-legal expert opinion is consistent with this finding. To the extent that there be any difference between the medico-legal opinion and the treating medical opinion of Dr Matthews, I prefer the opinion of Dr Matthews because with the advantage of several clinical examinations, he has consulted the Plaintiff through the period of her treatment, starting with conservative treatment, and contemplated various alternative forms of surgery to total knee replacement before ultimately coming to the opinion that the Plaintiff requires staged bilateral knee replacements. The Plaintiff is waiting on the list for surgery and it is expected that the knee replacement process will commence sometime in the late part of this year. The expert medical opinion evidence does not assess the chance of progression of the Plaintiff’s arthritis in her knees but for the fall. Nor does it comment on whether, and if so, when, she would have come to knee replacement or some other surgical treatment modality but for the trauma to her knees in the fall.

148. In summary, the Plaintiff now requires bilateral knee replacements, performed one at a time. Dr Matthew’s assessment of the 23 August MRI scans did not lead him to advise that the Plaintiff’s state of arthritis at the date of her fall required knee replacement surgeries (see [99] above]. Dr Doig’s opinion, based on the radiological reports of those MRI scans, was that the given history of bilateral blows to the knees rendered the arthritis permanently symptomatic (see [105] above). The joint report of medico-legal experts Drs Doig and Robinson found aggravation of pre-existing arthritis (see [112] above). The evidence of the Plaintiff’s local medical practice, going back 12 years preceding her fall, provides objective corroboration of her evidence that she did not experience problems with her knees prior to the fall.

149. In closing oral submissions, the Plaintiff argued for 40% of a “most extreme case”, non-economic loss damages (s 16 CLA), taking into account that she will have to undergo 2 total knee replacements and suffer the recuperation from those procedures. The Defendant submitted that should the Plaintiff fail to prove causation of a permanent aggravation of her arthritis, then she does not make the 15% threshold and is not entitled to damages for non-economic loss. In the alternative, if the Plaintiff established that the fall caused the aggravation to the her pre-existing arthritis and the need for knee replacement surgeries, then the range is approaching 20% but not as high as 25%: T 167.05.

146. When I asked counsel for the Plaintiff what consideration should be given to the significant arthritic chondromalacia patella in each knee pre-existing the fall, his response was that medical evidence does not opine that the Plaintiff would have come to surgery without the fall occurring: T 155.30.

147. The Defendant submitted that, if I am satisfied that the fall caused the Plaintiff’s ongoing knee problems, I would assess the fall’s contribution as an aggravation of the pre-existing significant arthritis. Counsel submitted that Dr Robertson’s medico-legal opinion puts the whole of the Plaintiff’s ongoing knee problems down to arthritis, and “he doesn’t deal with the alternative proposition about if it isn’t”: T 166.40. Counsel acknowledged that this leaves a “void” in the medical evidence as to if and when the Plaintiff would have come to knee surgery, purely on account of her pre-existing arthritis.

148. The Plaintiff continues to experience some sensitivity at the proximal junction of the radius of the elbow, which causes minimal difficulty for her, including when performing domestic tasks.

149. The Plaintiff was off work for 5 weeks before returning to her administrative duties and has not lost further time from work. She will experience interruption from work during the two separate periods required to undergo total knee replacement and recuperation. In closing oral submissions, counsel for the Plaintiff recognised that she does work in a sedentary capacity but put that she still must walk most days and argued there may well be an impediment in respect of that.

150. When asked about incapacity for work following surgery, counsel for the Plaintiff in closing oral submissions responded:

“My point is she works in a sedentary capacity; she should be able to get back to doing most things; but, in those circumstances, if there is some work life, there may be some buffer allowed to reflect that incapacity moving forward.”

155. The Defendant submitted that the Plaintiff is only entitled to loss of earnings for the closed period of 5 weeks on account of her absence from work following the fall and for loss of earnings during time off for each surgery.

156. The Plaintiff also claims damages for a shortened working life. In my opinion, it is inconsistent with the acceptance of her future course of undergoing bilateral knee replacements that she claims a shortened working life. One would expect total knee replacement to return her to mobility approximately equal to her described pre-injury private and working life.

157. In my opinion, the evidence does not support damages for shortened working life. There is no medical evidence supporting this claim.

158. The Plaintiff claims for ongoing commercial assistance, submitting that the evidence of assistance provided by her daughter Kristen amounts to gratuitous domestic services at 4 hours per work. Counsel for the Plaintiff put the claim at 2 hours per week ongoing (more efficient) commercial assistance: T 155.15.

159. The Defendant put that there is no evidence that the Plaintiff’s daughter and family would not continue gratuitous care and that bi-lateral knee replacement surgeries will remove her disability and therefore the need for domestic assistance. The Defendant put that there is no basis for an award of damages to compensate for future domestic paid care.

160. The Defendant pointed to it being the Plaintiff’s burden to establish good reason for the provision of paid domestic services and argued that the gratuitous services provided by her family will continue indefinitely. The Defendant opposes any award for future paid care: Samco Pty Ltd v Wurth [2015] NSWCA 117 at [105].

161. The Defendant properly submits that the Plaintiff’s complaints of knee disability are pain related, and it is to be expected that the knee replacement surgeries will rectify this.

162. There is no expert opinion describing ongoing incapacity generally or specifically for work or domestic tasks following recovery from surgery.

163. The Defendant accurately commented that the evidence does not identify costs ancillary to the actual cost of knee surgeries, nor the length of time off work for recuperation from each surgery. These were matters within the Plaintiff’s burden of proof. The Defendant suggested 2 weeks in relation to each procedure: T 167.45.

Principles – Pre-Existing Arthritis

164. The Plaintiff is entitled to damages for the loss caused by the Defendant, but the Defendant is not liable for the consequences of natural progression of the Plaintiff’s arthritis had her pre-existing medical condition not been aggravated by the fall.

165. In this case, the common evidence is that the Plaintiff had grade-III chondromalacia in each knee before her fall. Her arthritis was described by Dr Matthews as “advanced”. The joint report of the medico-legal expert witnesses is that the fall caused aggravation of that pre-existing patello-femoral joint arthritis. Dr Doig described the symptomatology of the aggravation as “permanent” (see 110 above).

166. In Watts v Rake (1960) 108 CLR 158 Dixon CJ stated at page 160:

"… If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred."

167. He found that the defendant failed to prove when the plaintiff would have in any event reached his present pitiable state. He stated at the same page:

“For myself, I do not think he has proved more than that at an earlier time than other men, the Plaintiff would have reached a stage of disability, but not the same disability.”

168. At page 164, Menzies J said:

“It was for the appellant as plaintiff to prove his damages, and merely to prove his present position and his incapacity would not prove that these things resulted from the accident. It was not, however, for the plaintiff to prove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident, and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it… it is for the defendant to prove that, before the accident, the plaintiff was in a position that, without the accident, would have led to his post-accident state of health… it should also be observed that a negligent defendant must take his victim as he finds him and pay damages as he finds him. The fact that the plaintiff injured was particularly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability that made the injury more disabling – e.g. the loss of an only eye – does not mean that damages are not to be assessed according to the circumstances of the particular case.”

169. In Purkess v Crittenden (1965) 114 CLR 164 the plurality (Barwick CJ, Kito and Taylor JJ) said at page 168 (emphasis added):

"… It is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."

170. In the present case, there is no expert opinion comment on the Plaintiff’s chances of coming to her present state of disability or to knee replacement surgery but for the trauma of the fall and, if she would come to the present state or to knee replacement surgery, when that would occur. The doctors were not called, Dr Matthews did not join in the conclave or joint report, the parties did not ask and Drs Doig and Robinson did not in the joint report answer, and neither party tendered expert medical opinion prognosing the future progress of the Plaintiff's arthritis or its symptomatology and treatment requirements into the future, but for the fall.

171. Applying the principles stated in the above cases, the Defendant bore the onus of proving the future probable effects of the Plaintiff’s arthritis. The evidence merely shows that the plaintiff’s pre-existing arthritic condition has a relationship with her present incapacity and that the relationship is that the fall aggravated her pre-existing condition. The defendant has failed to prove that at an earlier time for other persons, the plaintiff would have reached a stage of disability she presently suffers, or even a stage of disability interfering with her amenity of life to a degree. As noted above, counsel for the defendant properly acknowledged that there is a void of evidence in this regard. The defendant has failed to establish with some reasonable measure of precision, the future natural course of her arthritis and future disabling effects or if and when it would reach the point of causing the plaintiff her present state of disability. I conclude that the defendant has failed in its onus of proof in accordance with the above stated principles.

172. But that does not entitle the Plaintiff to an award of damages assessed as if her pre-injury arthritis did not exist. The evidence does establish that the pre-existing arthritis was advanced on MRI scanning, although not interfering with the Plaintiff's life as an active grandmother, walker and sedentary worker in her mid-50s. It is also common evidence that the fall aggravated her pre-existing arthritis. Worldly experience and common sense recognise it to be a naturally progressing medical condition likely to produce gradually increasing interference with her lifestyle as it progresses and she ages.

173. Uncertainty as to what would have happened but for the trauma to her knees in the fall must lead to an proportionate award in accordance with the relevant degree of probability of the Plaintiff's future knee pain and ability/disability, taking into consideration progression of arthritis and life's vicissitudes, such as another fall or some other trauma which might aggravate its interference with her lifestyle. Neither party has tendered evidence upon which that future course can be predicted with any reasonable measure of precision.

174. In Malek v JC Hutton Pty Ltd (1990) 169 CLR 638 the plurality (Dean, Gaudron and McHugh JJ) explained at page 643 the correct approach (bold added for emphasis):

“…..in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, ….. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible to scientific demonstration or proof.

…. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 percent - or very low – 0.1 percent. But unless the chance is so low as to be regarded as speculative – say less than 1 percent - or so high as to be practically certain – say over 99 percent - the Court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 percent probability of occurring, but to ignore altogether a prediction which has a 49 percent probability of occurring. Thus, the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.”

175. This approach was further explained in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 where the plurality (Mason CJ, Dawson, Toohey and Gaudron JJ) said at [P349-350] (bold added for emphasis):

"Damages in tort have also been assessed by reference to the probabilities or possibilities of what will happen or what would have happened. That approach has been frequently adopted in the assessment of damages for personal injuries where a court has been called upon to assess future possibilities and past hypothetical situations. In Malik v JC Hutton Pty Ltd… this Court drew a distinction between, on the one hand, proof of historical facts - what has happened - and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages."

176. In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Ipp JA (Mason P agreeing) explained the correct amalgamation of the above High Court authorities in the following way at [104]-[105]:

“… What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by [the principles in Malek v JC Hutton Pty Ltd]. Malek has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the "disentangling" evidentiary burden on it while showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from [their] pre-existing condition.

177. In summary, whilst the evidence in this case establishes on the balance of probabilities the advanced state of the Plaintiff's bilateral patello-femoral arthritis on the date of her fall, the Defendant has not by evidence established future probable effects of that pre-existing condition. The joint medical opinion establishes, on the balance of probabilities, an actual relationship of aggravation caused by the trauma of the fall, and that the pain and disability consequence of the aggravation has persisted and will continue until the Plaintiff undergoes bilateral total knee replacement surgeries. That is expected to occur in 6 months to 1 year from the date of this judgment.

178. The chance that the Plaintiff at her age and being a person of an active lifestyle, would have come to her present state of disability and to future bilateral knee replacement surgery, must be, according to common sense, a possibility and not merely a speculative prospect. It is a chance which I must consider when assessing damages.

179. In the absence of expert medical opinion assisting, it is extraordinarily difficult, one might say impossible, to estimate what the future course of the plaintiff’s arthritic condition and associated symptoms might have been in terms of effect upon her amenity of life as the degenerative condition progressed, had she not been injured. When estimating those future possibilities for the purposes of assessing damages, the Court must do the best that it can with the available evidence. In Chen b.h.t. v Kmart Australia [2023] NSWCA 96 White JA (Griffiths AJA and Weinstein J agreeing) at [49] applied and quoted from the judgment of Sheller JA (Campbell AJA agreeing) in Loxton v New South Wales [2001] NSWCA 194; [2004] Aust Torts Reports 81-667, in relation to assessing damages for future economic loss for a plaintiff who had been injured at school when she was 11 years of age and 16 at the time of hearing:

“[41] It is no doubt correct to say, in reflecting in damages the myriad of possibilities that would have directed the appellant’s life if she had not been injured and that might now direct it in consequence of her disabilities, there is an element which is more guesswork than estimation. In Jones v Schiffmann (1971) 124 CLR 303 at [308] Menzies J noted that in Chaplin v Hicks [1911] 2KB 786, where the jury awarded the plaintiff 100 pounds damages for the loss of a chance to win a prize, the Court of Appeal in refusing to disturb this verdict, said that, had the jury chosen an award of 1 shilling, that verdict would not have been disturbed either. This both demonstrates that the exercise is imprecise and indeterminate and also that the parameters are wide.” (Applied in Chen by her tutor Huang v Kmart Australia Limited [2023] NSWCA 96 at [49]). [see also Nguyen v Northern Sydney Local Health District [2025] NSWCA 107 at [90]-[91]]

180. Bearing in mind that the Plaintiff's bilateral patello-femoral arthritis was not causing her problems, nor interfering with her lifestyle prior to the fall, and that it was of quite advanced state but not so advanced as for Dr Matthews to have initially not thought it worth proceeding by conservative treatment in his clinical assessment that her pain would likely wane; doing the best that I can with the evidence, I assess the probability of the Plaintiff's natural course, but for the fall, to warrant an adjustment of the award of damages to reflect a degree of probability of the Plaintiff coming to her present state of disability and requiring future bilateral knee replacement surgery even had the fall not occurred. Consideration of vicissitudes of the Plaintiff’s active life but for the subject fall must contemplate the chance of trauma to her knees. On the subject occasion, she merely fell on a hard surface when walking. On another occasion, she might for instance, fall from a ladder used to clean high places or when playing with a grandchild. Assessment of future economic loss damages warrants a discount of damages otherwise to be awarded for future loss on account of the Defendant’s negligence, of 30%.

Calculation

181. The Plaintiff is 55 years of age and is entitled to damages compensating her for the pain and disability of her aggravation of bilateral patello-femoral joint arthritis which Dr Doig assessed as 10% and 15% loss of efficient use of the left and right legs respectively prior to the surgery, pain and disability of treatment including bilateral knee replacement surgery and recuperation as well as ongoing mild restriction of her dominant right elbow assessed by Dr Doig at a 5% loss.

182. The plaintiff is entitled to damages compensating for her pain, suffering and loss of amenity consequent of her fall determined as a percentage of a “most extreme case”: s 16 CLA.

183. Relative to an uninjured person of her age and lifestyle as an active mid-50’s “fun” grandmother, her bilateral knee pain and disability and consequent effect on her amenity of life will not be significant following her recuperation from surgery. In my opinion, the Plaintiff is entitled to damages calculated at 24% of a most extreme case in the sum of $42,000.00.

Past out-of-pocket expenses

184. As arithmetically agreed between the parties in the sum of $3572.

Future out-of-pocket expenses

185. I apply the arithmetically agreed cost of each future knee replacement in the sum of $24,174 and in addition allow a buffer for each procedure of $4000 on account of contingencies and medications. Both parties agreed that I approach contingencies and medication on the basis of provision of a buffer and in the absence of evidence as to the precise costs of medication, physiotherapy and rehabilitation.

186. The Plaintiff, in my opinion, is entitled to the total buffer provision for future out-of-pocket expenses of $56,348 in relation to which I allow for deferral of 6 to 9 months and a discount of 30% on account of the possibility the Plaintiff would have come to bilateral knee replace surgery but for the injury, I allow damages in the rounded sum of $32,000.

Past domestic assistance

187. The plaintiff does not claim for this head of damages.

Future domestic assistance

188. The parties have agreed a cost of $55 per hour and I allow for paid domestic assistance of 2 hours per week for a period of 1 year in contemplation of a sufficient period to allow for recuperation from bilateral knee replacement surgery. In my view, 2 hours per week of paid domestic assistance, given the efficiency of a professional domestic worker, is quite generous given the plaintiff lives in a single-story house and enjoys the gratuitous assistance which she would receive, in any event, from her family. Included in this award is time for recuperation from surgery. That component is to be discounted by 30% on account of vicissitudes. Doing the best I can with the state of the evidence, I allow a buffer of $4,500.

Past Economic Loss

189. I allow this in the sum arithmetically agreed between the parties of $5,300.

Future Economic Loss

190. The parties agree the current net earnings of the Plaintiff at $942 per week. I allow for 2 periods of 4-6 weeks when the Plaintiff will be unlikely to attend her employment on account of her bilateral knee replacement surgeries and recuperation. This figure is to be deferred by 6 to 12 months. That is 6 to 9 months to surgery, 6 to 12 months to allow for recouperation sufficient for her to return to her administrative work. Precision is not available. There is no expert opinion evidence as to the length of the recuperative period. The parties wildly differed as to how long should be allowed.

191. Doing the best I can with the evidence, I allow a buffer in the sum of $7,700 discounted by 30% on account of vicissitudes, equating to $5,390. Given the sedentary nature of the Plaintiff's employment and that she has been able to maintain that employment after the removal of the sling from her right arm, in the circumstances of her current heightened pain and disability in her knees, the evidence does not support that she will not be able to continue in her present job, or like employment after recouperation from surgery.

192. Following her knee replacement surgery, given her age, it is my assessment, the risk of any disadvantage in the competitive labour market when considering the small risk that she might for some reason lose her employment is adequately compensated in that buffer sum.

193. Had the plaintiff been successful on the question of liability, I would have allowed total damages in the sum of:

S 16 non-economic loss	$42,000
Past out of pocket expenses	$3,572
Future out of pocket expenses	$32,000
Future domestic assistance	$4,500
Past economic loss	$5,300
Future economic loss	$5,390
Total	$92,762

ORDERS

194. Judgment for the Defendant.

195. Plaintiff to pay Defendant’s costs.

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Amendments

27 May 2025 - 1. Case name corrected from "Lisa Marie Maclean v Richmond Valley Council" to "Maclean v Richmond Valley Council".

2. Typographical error in "case cited" section.

Decision last updated: 27 May 2025