McKenzie v Day (No 2)

[2016] NSWDC 236

District Court

New South Wales

Medium Neutral Citation:	McKenzie v Day (No 2) [2016] NSWDC 236
Hearing dates:	15 - 19 August 2016
Date of orders:	23 August 2016
Decision date:	23 August 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the defendant against the plaintiff
Catchwords:	TORTS – Negligence – Action for damages for personal injury – Plaintiff visits home of 92 year-old defendant as a support worker in the course of her employment – Although plaintiff had visited about 50 times over a period of years, plaintiff had not previously gone beyond the backdoor – On this occasion, defendant asked plaintiff to bring in washing – Plaintiff went through backdoor and onto back verandah and noticed, twice, steps leading from back verandah to backyard – A wall-fixed clothesline above the steps – Sheets were hung on this line – Plaintiff approaches close to sheets to feel if they are dry – Plaintiff missteps and falls down two steps and breaks both ankles – Although a number of allegations were made, plaintiff’s case ultimately that she was distracted by the sheets hanging on the clothesline and misjudged her step, causing her to fall – Plaintiff did not look to see where she was placing her step – Alleged that defendant ought to have warned plaintiff of danger of being distracted – Whether defendant was negligent – Whether plaintiff exercised reasonable case for her own safety – Whether defendant ought to have called her son who was a daily visitor to defendant’s house – What use can be made of photographic evidence
Legislation Cited:	Civil Liability Act 2002 Local Government Act 1919
Cases Cited:	Angel v Hawkesbury City Council [2008] NSWCA 130 Blacktown City Council v Hocking [2008] NSWCA 144 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 192 Francis v Lewis [2003] NSWCA 152 Kallouf v Middis [2008] NSWCA 61 Nominal Defendant v Kostic [2007] NSWCA 14 RTA v Dederer (2007) 234 CLR 330 RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Schultz v McCormack [2015] NSWCA 330 Stannus v Graham (1994) Aust Tort Reports [81-293] Wilkinson v Law Courts Ltd [2001] NSWCA 196 White v Benjamin [2015] NSWCA 75 Vairy v Wyong Shire Council (2005) 223 CLR 422
Category:	Principal judgment
Parties:	Lesley McKenzie (Plaintiff) Lucy Day (Defendant)
Representation:	Counsel: Mr F Curran (Plaintiff) Mr J Guihot (Defendant)   Solicitors: Carroll & O’Dea (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2015/103378
Publication restriction:	No

Judgment

1. HIS HONOUR: The plaintiff, Mrs Lesley McKenzie, brings an action for damages for personal injury in the tort of negligence. There is no dispute that, on 15 April 2013, the plaintiff sustained personal injuries when she fell at the defendant’s residential premises at 289 Bent Street, South Grafton. The plaintiff, who was then aged 60 years, was employed by the Clarence Valley Council Community Support Services as a support worker on a permanent, part-time basis. The plaintiff’s employer provided to the defendant community support. That included a twice daily “safety check” on the defendant in her home. Such a visit would usually last 15 minutes, but could extend to 30 minutes and occasionally up to 45 minutes. On the afternoon of 15 April 2013, the plaintiff called upon the defendant at her home at around 4.15pm. That is an allegation contained in the statement of claim, par 1(e), which is impliedly admitted by the defence, which does not either not admit that allegation or deny it.

The defendant

2. The defendant, Mrs Lucy Day, was the owner and occupier of 289 Bent Street, South Grafton. That, again, is an allegation made in par 1(c) of the statement of claim which is neither denied nor not admitted by the defence and, therefore, is deemed to be an admitted fact in the proceedings. She was, at that time, 92 years old. According to the plaintiff, she was deaf and half blind. The defendant lived alone, but, according to the plaintiff, was visited daily by her son, Geoffrey. The plaintiff had first met the defendant in 1982, when the defendant, who was then a civil celebrant, solemnised the plaintiff’s marriage to her current husband, Mr Kim Phillip McKenzie. The plaintiff reacquainted with the defendant in 2008 or 2009, when the plaintiff commenced to provide safety checks to the defendant on behalf of the plaintiff’s employer. The plaintiff estimated that she had visited the defendant about 50 times since 2008/2009. She also stated she might have visited her once per fortnight. In a statement made by the plaintiff on 5 June 2014, which was tendered in the plaintiff’s case as exhibit T, the plaintiff said that the defendant was not one of her regular clients, but she had attended her home on a number of occasions prior to 15 April 2013. When the plaintiff visited the defendant in the mornings, the defendant would have a shower. Other services typically performed by community support workers included preparing a meal, serving a meal, checking to ensure that medication had been taken, making a cup of tea and having a chat, generally checking the safety and welfare of the client, providing companionship to the old, the lonely, and the infirm.

The defendant’s house

3. The defendant’s house was built in 1965. I take that date from the report of Associate Professor Yandell of 5 November 2015, which is exhibit 7, and is stated in [21] of that report. Associate Professor Yandell is the defendant’s expert. The plaintiff objected successfully to a hearsay statement as to the time of construction of the house in [10], but overlooked the iteration of that information in [21] of the same report. In any event, it is agreed between the parties that the defendant’s house was constructed before 1 July 1970, when Ordinance 71 under the Local Government Act 1919 was in force. That was superseded by Ordinance 70 on 1 July 1974. Ordinance 70 was replaced by the Building Code of Australia on 1 January 1993. That legislative background can be found in Francis v Lewis [2003] NSWCA 152 at [25]. The evidence does not disclose when the defendant entered into possession of this house and/or became its owner. I can only infer such occupation and possession from the time that the plaintiff began visiting the defendant at her home in either 2008 or 2009.

4. On no occasion prior to 15 April 2013 had the plaintiff gone out of the backdoor of the defendant’s house or entered onto its back verandah or its backyard. The plaintiff was not challenged about that. It is necessary to consider the layout of the rear of the defendant’s house. The defendant’s house faced west onto Bent Street. That can be ascertained from exhibits R1, R2, and R3. Most of the rear of the house faced east. The southern part of the back of the house projects further into the backyard than the northern part of the back of the house, forming a backward L-shape. The southern part of the back of the house is not as wide as the northern part of the back of the house. On the northern side of the back of the house is a verandah running from the northern side wall of the house along to the northern wall of the eastern projection. The back door opens onto the verandah from the northwest corner of the eastern projection. I have set this out in MFI 11, which was agreed to be accurate by Mr Curran, who appeared for the plaintiff, but no concession was made by Mr Guihot, who appeared for the defendant, that it was accurate because his instructions did not allow him to make that concession. However, what I have set out on MFI 11 is the only rational explanation for the layout of the back of the house. MFI 11 will, of course, be left with the papers.

5. When one leaves the house through the back door, on one’s left hand is the longer eastern wall of the house on its north side and, immediately to one’s right, as one goes onto the verandah through the back door are two steps which lead to a concrete footpath which runs along the northern wall of the eastern projection into the backyard, and which extends beyond the eastern protection further into the backyard where it reaches a rotary, clothes line. Initially, there was some confusion as to the layout of the back of the defendant’s house. I drew a sketch plan, MFI 5, but counsel then tendered by consent exhibit P, but it transpires that exhibit P is itself inaccurate. Exhibit P shows two steps leading down from the verandah, which verandah has a continuous straight edge from north to south. However, when one consults the photographs of the steps contained in Associate Professor Yandell’s report, those photographs being annexures C2, C3, and C4, it became clear that the steps are cut into the verandah so that the top of the bottom riser of the two steps is on the same line as the edge of the verandah. By referring to exhibit V, the middle riser begins 270 millimetres from the edge of the verandah and the upper riser begins a further 280 millimetres back from the top of the middle riser. The two steps commence 550 millimetres from the eastern edge of the verandah. When one steps off the lower tread, one steps onto the concrete path beside the north wall of the eastern projection.

6. On the north wall of the eastern projection into the backyard, above the steps has been affixed a handrail which commences very close to the back door, 930 millimetres above the verandah, and descends at the same inclination as the steps to end at a height of 950 millimetres above the concrete path. At its commencement near the backdoor, the handrail is horizontal for about 30 millimetres, that distance being above the verandah and, at its end above the concrete path, the handrail is again horizontal for a longer distance, perhaps 80 to 100 millimetres. There is no evidence as to when the handrail was placed on the wall. Counsel have approached this case on the basis that it had been in position for some indefinite but long period of time.

7. On the northern wall of the eastern projection had been affixed a clothesline. Its western end can clearly be seen in photographs exhibits L2, L3, L5, L10 and V. Exhibit V is an annotated copy of exhibit L5. Each end of the line is attached to a metal bracket, which projects approximately 30 millimetres from the brick wall. That distance is my own assessment from the photographs, but is also the assessment made by Associate Professor Yandell in [20(1)] of his report. Between the two brackets were strung two lines for hanging washing, one about 15 centimetres from the brick wall and the other 30 centimetres from the brick wall. The end of the western bracket had been swathed in a cloth that had become tattered and weather beaten. It could fairly be described from the photographic evidence as a rag. To me, the purpose of the cloth/rag is clear. It was to prevent injury to any person whose head, shoulder, or chest might strike the bracket as that person descended the steps. There is no evidence for how long the clothesline had been in place. The cloth, which had been reduced to rag, indicates that it had been there for a considerable period of time, at least a year. However, the clothesline on the wall could have been present for many, many years.

8. There are possible sources of information as to the length of time that the clothesline had been attached to the brick wall of the eastern projection into the backyard. The defendant herself might have been able to tell anybody who asked her. In her statement, exhibit T, the plaintiff said this in par 12:

“Mrs Day is both visually and hearing impaired, but at the time of this incident she was mentally alert.”

I do not know when Mrs Day may have been approached to give instructions. The current proceedings were commenced by a statement of claim filed on 2 April 2015, nearly two years after the relevant event. However, the plaintiff’s statement, which became exhibit T, was taken by an investigator on behalf of the defendant on 5 June 2014 after the plaintiff was interviewed by an investigator, Mr Ian Mayberry, on 23 May 2014. It would appear, therefore, that Mr Mayberry had been retained on behalf of the defendant in May 2014, a little over a year after the plaintiff’s fall. One might think that Mr Mayberry’s first “port of call” in an investigation on behalf of the defendant would be to interview the defendant herself, if she could remember what had occurred on 15 April 2013 and/or other pertinent events. However, there is no evidence as to the state of the defendant’s memory or mental ability in May 2014. I do know from exhibit 6, a statement of Dr Daniella Cahill of 24 February 2016, that at that time the defendant was very frail and elderly and a permanent resident in a high-care aged-care facility and was immobile, not being able to attend court even in a wheelchair.

9. Another possible source of information as to the length of time in which the clothesline in question was in place could be the defendant’s son, Mr Geoffrey Day, whose absence from the witness box has been the subject of much comment and I shall in due course refer to the submissions in that regard.

10. Another source of intelligence is the plaintiff’s work supervisor. That supervisor is Ms Colleen Timms. Ms Timms visited the defendant’s house on 17 October 2012 and prepared a seven-page document, a copy of which became exhibit 5. Exhibit 5 bears a heading “Clarence Valley Council Community Support Services” and beneath that heading is another heading “Risk Assessment”. The seven-page document is, in fact, a form which was to be completed by the assessor, Ms Colleen Timms, after visiting the defendant’s house. Exhibit 5, therefore, tells me something about the defendant’s house on 17 October 2012. However, there is no direct reference to the clothesline. However, if it were present on 17 October 2012, no doubt Ms Timms could tell me so.

11. It would appear from what the plaintiff herself said in exhibit T, her statement of 5 June 2014, that Mrs Day probably had a support worker who regarded the defendant as her or his “regular client”. Paragraphs 12 and 13 of exhibit T are this:

“12. Mrs Day is both visually and hearing impaired, but at the time of this incident she was mentally alert. The typical services provided to Mrs Day each morning included showering and having her washing done. The typical services provided in the afternoon included assistance with her medication, make her a cup of tea, and any other services she requested. The afternoon visit was only scheduled to be about 15 minutes.

13. On previous occasions when I had attended her home, I had only been aware of personal washing, drying on a clothes horse in the bedroom. On this day, which was a Monday [,] Mrs Day asked if I would bring the washing in from the line in the rear yard.”

It would appear, therefore, that employees of the Clarence Valley Council Community Support Service regularly did washing for the defendant and, on occasions, hung the washing out in the backyard. The plaintiff told me that there are about 70 persons who worked for the Clarence Valley Council Community Support Service. There were, accordingly, probably a number of the plaintiff’s co-workers who could have given some information as to the period in which the clothesline had been attached to the brick wall of the eastern projection into the plaintiff’s backyard. In other words, the plaintiff did not have to rely upon the defendant or her son to obtain information as to the duration of the presence of the clotheslines affixed to the brick wall.

Items on the steps

12. An issue arose at the hearing as to whether anything was present on the steps of the afternoon of 15 April 2013. On the day following the plaintiff’s accident, members of the staff of the Clarence Valley Council visited the defendant’s home to investigate the plaintiff’s accident. A number of photographs were taken between 2.30pm and 3pm by Ms Danielle Holland of the Clarence Valley Council Human Resources Department. I could take notice of Ms Holland’s position with the Clarence Valley Council if counsel had the forethought to tender at the hearing exhibit B on the voir dire, which describes Ms Holland’s position. However, counsel overlooked that. The plaintiff tendered those photographs before she was called to give oral evidence. Those photographs which were admitted became exhibit L. The tender of three of the photographs were rejected as they were irrelevant. There remain 11 photographs in exhibit L. Photograph L2 shows, on the right-hand side of the steps (for one descending the steps) alongside the brick wall on the top or upper step, a dark blue plastic garbage bin with a black lid; on top of the lower step, a bucket; and on the concrete path at the end of the steps, a round, metal drum painted white with two lids on top of it, one of which lids appears to be the lid for the bucket on the lower step and, to the east of that white metal drum, also on the concrete path, a smaller round container which appears to be ceramic. These objects can be also seen on exhibits L5 and L9. On the left-hand side of the step (for one descending the steps), on the opposite side to the brick wall, on the upper step is a potted plant, which can be seen in exhibits L1 and L4. On the lower step is a white tub, containing a seedling which can be seen in exhibits L4 and L7.

13. The plaintiff amended the statement of claim to add this particular of negligence:

“(xi) Allowing bins, buckets, containers and other items to be present near the clothesline and railing, thus causing additional shadow over the subject steps and the presence of such items distracting the Plaintiff’s attention from the said steps.”

The amended statement of claim was filed in court on 15 August 2016. However, notice of the amendment was given by the plaintiff’s solicitor to the defendant’s solicitor on 11 September 2015 and a copy of the amended statement of claim was provided to the defendant’s solicitor on 30 September 2015. Exhibit U establishes those facts. Indeed, learned counsel for the plaintiff thought that it had been filed before 15 August 2016 and, when I pointed out that it had not, he sought and was granted leave to file the amended statement of claim in court. That amended statement of claim is dated 30 September 2015. Accordingly, it was part of the plaintiff’s case since 11 September 2015 that the objects on the steps caused additional shading of the steps and were a distraction to the plaintiff when she was on the verandah. One could be forgiven for thinking from the way the case proceeded, after the filing of the amended statement of claim, that it was part of the plaintiff’s case that those objects were on the steps at the time of the plaintiff’s accident. The plaintiff, in evidence, said that she did not remember seeing, for example, the garbage bin on the upper step next to the brick wall. This raised a number of possibilities:

(a) the plaintiff’s recollection was poor;

(b) the plaintiff did not notice the objects and therefore her lookout was poor;

(c) as the objects on the steps provided a visual cue to the presence of the steps, their presence was inimical to the plaintiff’s case.

After the luncheon adjournment on Wednesday, 17 August 2016, after the cross-examination of the plaintiff had been completed and before re-examination of the plaintiff, Mr Curran advised me that he could call evidence from Ms Anne Marie Fischer, the plaintiff’s friend and co-worker, who was the first person to come to the assistance immediately after the fall, and from Ms Colleen Timms, her supervisor, the lady who completed the risk assessment form on 17 October 2012, that the objects were not on the stairs at the time of the plaintiff’s accident. I was advised that they would be called to give evidence at the recommencement of the hearing on the morning of Thursday, 18 August 2016. However, on that morning, I was advised that neither lady could attend court as the Clarence Valley Council would not excuse them from work without their having been served with subpoenas. Mr Curran went on to tell me that, accordingly, the ladies would not be called in the plaintiff’s case. However, no application was made to me for the issue of and short service of subpoenas addressed to the two ladies. There was no application for electronic service of such subpoenas, nor was there any indication that an adjournment would be sought to enable the ladies to be called after they could be served with a subpoena, either on the following day, Friday, 19 August, or on any day in the second week or these settings, which second week commenced yesterday, Monday, 22 August.

14. In submissions, Mr Curran submitted that the objects were not there at the time of the plaintiff’s accident, despite his failure to call this evidence and despite the change in the position of the plaintiff’s case. I am unable to accept the submission that the objects were not present at the time of the plaintiff’s accident. I have no hesitation in finding that the objects were there on the steps at the time of the plaintiff’s accident.

15. Exhibit V is, as I earlier stated, a copy of photograph exhibit L5. It clearly was tendered in the plaintiff’s case. The annotations are headed “Corrective Actions”. Exhibit V describes four different hazards. The hazard identified as “2”, which on the photograph appears immediately above the bucket and the white metal drum, says this:

“HAZARD DESCRIPTION

The items under the handrail have been put in place so that persons could not walk too close to the wall and strike the wall-mounted clothesline. These items do not allow appropriate use of the handrail.

RECOMMENDATION

Upon removal of the wall-mounted clotheslines, these items should be removed to another appropriate location.

RESPONSIBLE PERSON/S

Colleen Timms (by 01/05/2013) - Completion and Review.”

According to Mr Curran, this does not indicate that the items were under the handrail less than 24 hours previously, but had been placed there, since that time by a person or persons whom he could not identify, to prevent, not the hazard described in exhibit V, but interfering with clothes hanging on the line. With the utmost respect, I cannot accede to that submission. Why, when in investigating the plaintiff’s accident, would the council staff or anyone place against the wall items that the council referred to as a “hazard” which needed to be removed? Furthermore, the perfect tense is used in the description of the hazard and that should be given its usual weight, that is, that the items had been there for some time. Furthermore, as pointed out by learned counsel for the defendant, one can see in exhibits L2 and L9 that there are pegs in the bucket on the lower step and one can observe in exhibit L9 that the top lid of the two lids on the white metal drum, which appears to be a lid for the bucket on the lower step, has written or painted on it the word “PEGS”. As learned counsel for the defendant pointed out, if the items had only been placed there for a very temporary period between the time of the plaintiff’s fall and the photography that was carried out between 2.30pm and 3.30pm on the following day, how odd it was that a temporary installation fortuitously included a bucket containing pegs to be placed under a clothes line. The inference to be drawn is that the bucket containing pegs was beneath the clothesline to be used in conjunction with the clothesline that had been there for some time.

16. Furthermore, it is clear from exhibit L9 and also from exhibit L2 that a leaf, or leaves, or debris of some sort and dust had accumulated on the lower step in the area between the bottom of the bucket and the middle riser, blown in by the wind or the like, indicating that the bucket had been in situ for some time.

17. Mr Curran also relied upon exhibit 5 to support his contention about the absence of the objects on the steps. On the first page of exhibit 5 are questions about stairs. The questions and answers are these:

“Are stairways kept clear of boxes, equipment and other obstructions? Yes.

Is the tread on stairs adequate to minimise slipping? Yes.

Is the foot-space on each stair adequate? Yes.

Are hand rails adequate? Yes.”

On p 2 of the document is a section headed “Outside Residence”. The relevant questions and answers are these:

“Pathway-level, non-slip, uncluttered? Yes.

Steps/stairs, level, non-slip, uncluttered? Yes.

Verandah surface – level, non-slip, uncluttered? Yes”

Mr Curran submitted that because of the use of the word “uncluttered” in exhibit 5, when the premises were inspected by Ms Colleen Timms on 17 October 2012, there must have been no object on the steps. However, the word “uncluttered” does not mean “devoid”. One can put an ornament on a mantelpiece or sideboard and one might describe the mantelpiece or sideboard as uncluttered. If one needs to think of a cluttered mantelpiece or sideboard, one needs only consider photographs of decoration of such surfaces in Victorian times, when there was much cluttering of objects on sideboards and mantel pieces.

18. Furthermore, the photographs, exhibit L, contain depictions of the verandah and the verandah has on it, according to exhibit L6, a table and chairs and potted plants and, on exhibit 11, collapsed canvas chairs, a clotheshorse, and other chairs not depicted in exhibit L6 and other items which could be described as “cluttering” the verandah. Clearly, the clotheshorse was not always on the verandah, but clearly there were objects designed to be on the verandah; the potted plants and the outdoor furniture, table and chairs.

19. In my view the word “uncluttered” should be read as meaning “unobstructed”. What is on the steps, as shown in the photographs to which I have referred, does not in any way obstruct the use of the steps for the purpose for which they were intended. Furthermore, if the objects on the steps and on the verandah were not there at the time of Ms Timms’ inspection, one would have expected her to be called by the plaintiff, but she was not. Clearly, her absence from the witness box has not been explained.

20. No inference can be drawn from the plaintiff’s evidence that, as she did not see the objects on the steps, and as she could not remember seeing the objects on the steps, that the objects were not there because there is no doubt that the handrail was present and could have been seen by the plaintiff, but she did not remember seeing that either. Accordingly, I have had no hesitation in finding that the objects on the steps which I have referred to were present at the time of the plaintiff’s fall.

The accident

21. In her statement, signed by her on 5 June 2014, after she had consulted with her solicitor, Mr Stephen O’Halloran, the plaintiff said:

“14. This was the first time that I had actually been out the back of her home. I went out the rear door, which leads to the back tiled patio. The tiles were dark brown in colour. I saw some washing on a clotheshorse on the patio. I also some bed sheets drying on a clothesline attached to the wall of the house under the eaves which ran from about the edge of the patio and protruded about 12 inches out from the wall of the house. I also noticed that there was a set of two or three steps leading from the patio to the rear yard.

15. This incident occurred at about 4.20pm, my shift at her home that afternoon was scheduled to run from 4.15pm to 4.30pm, and I was about on time. The rear of the house faces west. The sun was setting and casting shadows across the rear yard, including the rear patio. I had no recollection of seeing any washing on the rotary clothesline located in the rear yard.

16. I was standing on the rear patio just outside the rear door and at the top of the steps. I reached forward to touch the washing to see if it was dry enough to bring in and this is the last thing I recall prior to realising that I was laying on the ground at the base of the steps. I had no recollection of actually falling.

17. I was not attempting to walk down the steps from the patio to the rear yard. I have no recollection of seeing a hand rail attached to the wall of the house beneath the clothesline and to the right of the steps.”

In the following paragraph, the plaintiff goes on to describe her injuries and how she felt when she found herself lying on the ground.

22. It is patently clear from that statement that the plaintiff saw the steps prior to approaching them. It is patently clear from that statement that she knew she was standing at the top of the steps when reached forward to touch the washing, that is, the sheets hanging on the clothesline, to see if they were dry enough to bring in. The plaintiff confirmed those things in her evidence.

23. The plaintiff told me in-chief that, on the day in question, she went to the front door of the defendant’s house and knocked and called out to Mrs Day to seek to make her aware of her presence. The door was left unlocked because Mrs Day expected the presence of a support worker. The plaintiff entered the house and went to where she expect the defendant to be, sitting in her recliner chair. She knelt in front of her to draw the attention of the defendant to her and she spoke with her. The defendant pointed out that there was washing outside and she asked if the plaintiff could bring the washing in. She was concerned that, as the afternoon was becoming late, the washing might get damp. The plaintiff told me that she walked through the kitchen and opened the back door, which opened inwards, and then opened the flyscreen door, which opened outwards, and then she stepped out onto the verandah.

24. She told me that she scanned the area around her and saw steps. Immediately in front of her, however, about two metres from the back door, was the clotheshorse and she walked straight towards it to feel the washing that was drying on the clotheshorse to ascertain whether it was dry enough to bring in. The plaintiff told me that, hanging on the clotheshorse that afternoon, were “smalls”, by which she meant ladies’ undergarments. After she felt those items to see if they were dry, she turned to her right. She then again told me that she saw the steps. They were further away from where she then was when she turned to the right. Again, she saw the bed sheets, which were white and queen-bed sized, hanging on the clothesline under the eaves, the clothesline affixed to the brick wall.

25. She told me that her main goal was to take the sheets off the line, but before she did so, she had to feel them to ascertain whether they were dry. She then walked over the verandah towards the clothesline. She noticed the protruding bracket swathed in the cloth/rag, to which I have earlier referred. She said that the area was quite shadowed, that it was quite dark, that it was late in the afternoon, and that she was at the eastern end of the house rather than the western end, and everyone one knows that the sun sets in the west, so that the eastern side of the house would have been in shadow. However, she did admit that there was sufficient sunlight to enable her to see. She walked towards the sheets and she told me that she was “about parallel” with the sheets. She told me that she reached out with her right hand to test the sheets to see if they were dry enough to be brought in. However, that evidence had an air of reconstruction about it. She believed that she reached out with her right hand because she is right handed. However, she was, in essence, facing the brick wall, facing the door, facing towards the bracket and the natural thing would be to reach out with one’s left hand to touch or feel something that is on one’s left-hand side. She told me that she stepped to the left with her left foot and found that was in “mid-air”. She stepped over the upper step. Her left foot was not on the same plane as her right foot. Hence, she fell to her left and down the steps.

26. In cross-examination, the plaintiff was asked when she opened the door, did she look to see where the washing might be? She said that she saw the clotheshorse straight ahead of her and then looked to the step area and saw sheets hanging under the eaves. She was asked whether she looked for, for example, the rotary clothesline and she said that she did not. She was asked whether she was aware of the presence of the steps before she approached the clotheshorse and she says that she was. She was asked whether she was aware of the number of steps she saw and she said that she did not know. Her observation was a “quick” one and she noticed that there was just steps. She was asked whether it was a few steps and she agreed that it was a few steps. She was then questioned about turning to her right after feeling the clothes on the clotheshorse and she admitted that she had no actual memory of that turn, indicating that her evidence-in-chief may have been a reconstruction.

27. She was then shown the document which became exhibit T and agreed with what is contained in par 14 of the statement, which I have quoted. It was put to the plaintiff directly that she did not look when she placed her foot when she reached out to her left and she agreed that she did not look when she placed her foot because she was “distracted” by the sheet. She also agreed that what is contained in pars 16 and 17 of the statement, which I have quoted already, were accurate. Again, she confirmed that she did not see the end of the handrail. That the end of the handrail had to have been visible to her is confirmed by exhibit S. That is a copy of exhibit L5, on which she has marked with red ink where the bed sheet was hanging. It is clear that the length of the handrail from its beginning, near the backdoor, to almost immediately above the end of the first step or top of the middle riser would have been visible. From the same view, it is clear that the plaintiff would have had immediately in front of her a clear vision, if she looked, of the plastic garbage bin. That plastic garbage bin clearly acted as a visual cue because, for a person on the verandah who was unaware of the presence of the step, the garbage bin looked as if the bottom third of it had been cut off.

28. The plaintiff misstepped, that is the best description of what occurred to her, because she failed to heed the presence of the step, which she had clearly seen on two occasions prior to standing where she stood to feel the clothing, immediately prior to misstepping. The plaintiff’s explanation for her fall is that she was distracted by the sheets hanging on the clothesline from observing where she was to put her foot. However, persons can often be distracted by many, many things when they are standing on the edge of something and standing on a landing immediately above the first step of a set of steps. The plaintiff could have been distracted by Mrs Day calling out to her. She could have been distracted by a flash of lightning, or a thunderbolt. She could have been distracted by a bird call or a swooping magpie. A person standing on a staircase might be distracted by a wall hanging, or a picture affixed to the wall to decorate it. Any number of things could distract a person who is at, or in the process of descending, a step or stairs. In my assessment of the evidence, the plaintiff misjudged where she was. She knew that she was at the top of the stairs, she forgot where she was, misstepped, and that was the cause of her accident.

Legal principles

29. The relevant legal principles appear to me to be clear. The most recent statement of the applicable law is contained in the judgment of McColl JA, with whom Macfarlane JA and Beech-Jones J concurred, in Schultz v McCormack [2015] NSWCA 330, where her Honour said this:

“73 As occupiers, the respondents owed the appellant, as an entrant to their home, a duty to take reasonable care to avoid a foreseeable risk of injury to her, on the premise that she was exercising reasonable care for her own safety. The duty included the obligation to take precautions a reasonable person in the circumstances would have taken by way of response to the risk that a person may slip on tiles on the porch or the stairs.

74 The scope of the duty occupiers owe entrants has been identified in numerous cases which reflect the latter premise, that is to say, the obligation of the entrant to take reasonable care for his or her own safety. Thus, it is emphasised that the occupier’s obligation is one of reasonable care, not to make the premises as safe as “reasonable care and skill on the part of anyone can make them”. It is not an insurer of entrants. What constitutes the exercise of reasonable care depends on the circumstances of each case.

75 Just as stairs are inherently but obviously dangerous and the risks of misjudging footing or tripping are ordinarily avoided by people taking reasonable care for their own safety,[68] so too are wet surfaces, or surfaces which may be wet by reason, among other matters, of rainfall. Thus, the mere fact of a fall on wet steps is not sufficient to establish that an occupier has been negligent.[69] Further, it does not follow from the fact that the porch was wet, that there was some precaution that the respondents did not take that a reasonable person in their position would have taken.”[Endnotes omitted]

30. However, it is worthwhile to consider some earlier cases. Perhaps the appropriate starting point is the decision of the Court of Appeal in Stannus v Graham (1994) Aust Tort Reports [81-293]. In that case, the plaintiff and her husband were renting premises owned by the defendant as a holiday flat. The plaintiff, who had fallen when she trod on a step on the premises, sued to recover damages for personal injuries. The trial judge found for the plaintiff because the top step had moved and because the defendant had failed to exercise reasonable care for the safety of the plaintiff and persons like her and that negligence had caused the fall. The trial judge found that a close inspection before the accident would have revealed movement in the top step, and the installation of a handrail would have been an easy matter and would have prevented the plaintiff’s fall. The appeal was allowed. The principal judgment was given by Handley JA, with whom Priestley and Meagher JJA concurred.

31. Commencing at 61, 564, his Honour said this:

“This Court has hitherto declined to impose any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects.”

His Honour then referred to Aslanidis v Atsidakos and continued thus:

“Subsequently, in Short v Barrett (5 October 1990, unreported), Meagher JA held that householders do not act unreasonably in taking their house as they find it and assuming it to be perfectly safe unless and until they either know it is unsafe, ‘or else receive a warning that it may be unsafe.’ The other members of the Court, Clarke JA and myself, agreed. The High Court granted special leave to appeal, but the appeal did not proceed … Mr Black did not refer us to any authority to the contrary of these decisions and, in particular, did not refer us to any case which establishes that an occupier of residential property has a duty to inspect the premises for the purpose of discovering unsuspected defects.

Indeed, the decision in Watson v George (1953) 89 CLR 409 supports the view that no such duty existed in the present case. This decision predates Australian Safeway Stores v Zaluzna […] but was not referred to in that case and I see no reason why it should be treated as impliedly overruled.

In that case, a paying guest in the defendant’s boarding house died from carbon monoxide poisoning due to a defective gas bath heater. The plaintiff relied upon the duty owed to persons who enter premises for reward to the occupier. This duty is not less onerous than the duty established by Australian Safeway Stores v Zaluzna. The Court held that the contract contained an implied warranty that the premises are as safe for their intended purpose as reasonable care and skill on the part of anyone can make them, although the occupier is not responsible for defects which could not have been discovered by reasonable care or skill on the part of any person connected with the construction, operation, or maintenance of the premises.”

His Honour then went on to quote further from Watson v George. His Honour then went on to say this:

“A concrete step such as this is more commonplace and less dangerous than a defective gas bath heater. It was regularly walked on by both caretaker, tenants, and others. It was not even established that a close inspection by an expert the day before this accident would have revealed that it was likely to move in the near future. Again, in the words of Fullagar J in Watson v George at 425:

‘… no other negligence being established, the case resolved itself into a question of whether the defendant’s (caretaker) had been negligent in that he had not observed or remedied the defect …’

In my judgment, this Court cannot hold that the defendant by her caretaker had been negligent in failing to observe and remedy any defect in its step prior to the accident.

The remaining ground on which the liability of the defendant was supported was her failure to install a handrail next to the steps. Since, in my view, there was no negligence in failing to observe and remedy any defect in the step, it cannot, in the circumstances of this case, have been negligent for the defendant and her caretaker to fail to install a handrail. The steps were not otherwise dangerous and there were but four of them. Persons using steps may misjudge their footing and slip or trip, but this is an everyday risk which members of the public avoid by taking care for their own safety. There is a step between kerb and gutter in city street and extensive steps outside public buildings in Sydney, such as the Joint Courts Building, the Public Library, the Art Gallery, Parliament House, and the Opera House.”

His Honour then went on at some length to point out that handrails were not to be found within reach of every person using a set of steps.

32. The important point to note, of course, is that persons using steps may misjudge their footing and slip and trip, but that is an ordinary, everyday risk. The “Joint Law Courts” subsequently became a defendant in a fall on steps. The decision is Wilkinson v Law Courts Ltd [2001] NSWCA 196. In that case, the plaintiff, on 30 May 1995, fell down the steps outside the Joint Law Courts Building in Sydney. He sustained a broken ankle. At the time, the plaintiff was 34 years of age and was able bodied with full sight. At the time, there was no handrail, edge-delineation strips, nor warning signs present on or near the steps. The plaintiff was unsuccessful in this Court and his appeal to the Court of Appeal was dismissed by Heydon JA (as he then was), with Meagher JA and Rolfe AJA concurring. At [32], Heydon JA said this:

“In my opinion, the trial judge’s reasoning is wholly convincing. Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact:

‘Persons using steps may misjudge their footing and slip or trip, but this is an everyday risk which members of the public by taking care for their own safety:’

Stannus v Graham … There are many places in Sydney where steps do not have strips on the edges: the Public Library, the Art Gallery, Parliament House, St James’ Church, and St Mary’s Cathedral.”

The plaintiff’s case

33. Ultimately, the plaintiff’s case was not advanced on any basis other than that the defendant was negligent in placing the clothesline on the brick wall above the steps because the clothing on the brick wall could distract a person such as the plaintiff who entered the defendant’s premises for the first time from the step and, therefore, lead to the sort of accident that befell the plaintiff on 15 April 2013.

34. The plaintiff’s case was initially put forward on the basis that she was deceived about the presence of the steps because of the uniformity of the tiling on the verandah and the steps, and a lack of delineation of the edges of the steps and the lack of a delineation around the insert in the verandah which contains the steps. The plaintiff qualified an expert, Mr David Cockbain. Mr Cockbain did not take a view. He interviewed the plaintiff on the telephone on 13 August 2015 and otherwise relied upon his written instructions and the photographs which became exhibit L. Mr Cockbain’s report, in Part 8.1, contains his understanding of the interview he conducted with the plaintiff and his understanding of the mechanism of the plaintiff’s injury. At [27], he recited that the plaintiff had never been required to undertake any task outside the defendant’s house previously and specifically had not been required to undertake any task in the rear of the premises until the day of her accident. At [29], he pointed out that the plaintiff was not in any rush, as this was the last job that the plaintiff had to perform on the day in question. His report then continues thus:

“31. The plaintiff went out the back door and turned and closed the door.

32. The plaintiff observed some washing on a clothes airer and sheets which were hung on a wallmounted clothesline which was located under the eaves and above the handrail (Figure 1).”

Figure 1 is, in fact, a copy of exhibit L5, which has placed beneath it this caption:

“Photograph provided by the Instructing Solicitor depicting the location of the clothesline in relation to the stairs, handrail, and hazards.”

The word “hazards” must refer to the objects on the steps underneath the handrail. Mr Cockbain’s report then says this:

“33. The plaintiff took a step towards the clothes in order to feel them, however, she did not identify the edge of the top step, which was not delineated (Figure 2). Whilst attempting to access the clothesline, the plaintiff misstepped over the non-delineated step and fell to the ground below.”

Figure 2 is, in fact, a copy of exhibit L1. Beneath Figure 2, Mr Cockbain has inserted this caption:

“Photograph provided by the Instructing Solicitor depicting the stairs upon which the plaintiff fell. The writer notes that there are no nosings on the stairs, or delineation of the edges to provide a prompt to pedestrians of the height differential.”

In the same part of his report, Mr Cockbain said this:

“39. The plaintiff explained that steps were extremely shadowed by overhanging tree branches and it was difficult to see the edge of the steps. There was also no delineation of the stair nosings, nor any form of non-slip nosing installed on the steps. The stairs were also not fitted with a non-slip surface.

40. The writer understands that, following the incident, the trees which were casting shadows on the stairs were cut down/trimmed and the overshadowing was eliminated.”

It should be noted from the photographs annexed to Associate Professor Yandell’s report that the steps are covered by the roof over the verandah, so could not be overhung by trees branches.

35. Part 9 of Mr Cockbain’s report is headed “Response to Request for Opinion”. [43] of the report is this:

“The writer notes that there is no delineation of the nosing of the steps to provide a visual prompt to users of the stairs. This could, however, have been achieved with the installation of a slip resistant tread, as noted above.”

The report then contains a sub-heading and the following paragraphs:

“9.2 Should the edges of the stairs had some form of contrast from the other tiles, given the propensity of the area to be covered in shadow in the afternoon?

44. The best practice would be to provide a contrast on the nosing of the stairs and this would certainly have been achieved with the installation of a slip-resistant tread, as noted above.

45. Nosings serve a dual purpose on steps: they provide a firm slip resistant leading edge of the step and visually highlight the step edge against the tread and riser surface. The selection of the appropriate nosings is integral to maximising safety and visual clarity of a stair flight.”

36. Commencing on page 12 of his report, Mr Cockbain makes comments about misstepping and falling. Commencing at [58], he makes a large number of observations about the visual field of a walking person and the capacity of the human eye to be involved in decision-making tasks of the human being. At [60], he said this:

“A person will find it difficult to identify a difference in height between two differing ground levels, or the presence of steps, if there are no distinguishing features between the two levels.”

In [62], Mr Cockbain refers to step coverings, which may be inappropriate in terms of safety, whose designs and patterns may conceal, confuse, or distort the appearance, shape, and location of changes in elevation on a set of steps or stairs. Mr Cockbain went on to say this:

“The writer is of the opinion that the brown tiles used on the subject stairs were insufficient, in the absence of nosings, to provide the plaintiff with adequate visual cues of the edge of the step (Figure 5).”

Figure 5 is, in fact, an extract from exhibit L1 and in the original report is not a good quality reproduction of exhibit L1, and figure 5 is in itself misleading, in my view. Furthermore, because it only shows part of exhibit L1, it is also misleading because the expert has excised from exhibit L1 the visual cues, being the objects on the stairs. The report then continues thus:

“64. In order to avoid overstepping, or a misstep, the pedestrian must properly perceive the location of the next tread. This requires detection of the edge that separates one tread from the next, or the tread from the landing (if it is the first or last step). The perception ability to perform this discrimination is “contrast sensitivity”, which requires the perception of the difference between the treads (or tread and landing). The visual system uses the contrast to see the edge and to help it estimate the depth between the treads.

65. One method which promotes visual observation of stairs/step edges during ascent or decent is the provision of nosing differentiation. This is achieved by an installation of high visibility, non-slip nosings for each step.

66. On the basis of the descriptions that have been provided to the writer, the visual aspects of the situation were such that the plaintiff was attempting to reach for the clothing, on a clotheslines which was positioned unsafely adjacent to the stairs, and was unable to delineate the edge of the top landing, which formed the first step.

67. [struck out]

68. The writer considers that, on the basis of the Plaintiff’s limited experience walking in the subject area, the presence of the steps, which were not delineated, would have created a hazard to any person in similar conditions and should have been identified and controlled by the defendant.”

37. The “history” obtained by Mr Cockbain is of little utility because he failed to point out that the plaintiff saw the steps on at least two occasions prior to the fall that she experienced. She had seen the steps, she approached and stood on the verandah very close to the commencement of the steps, and nevertheless put her foot out over the first step, leading to the misstepping. It would not have mattered if the steps were of a brown colour, being the same colour as the tiles or the verandah, or whether they were scarlet red, pure white, or fluorescent yellow. The plaintiff had seen the steps, knew they were, yet still, standing near them, did not look down and see where she was placing her foot. The colouring of the steps, the differentiation of the step edges, or the delineation of the steps would not have prevented this accident happening at all. Hence, in my view, the change of the thrust of the plaintiff’s case to concentrate on the hazard, as the plaintiff would have me believe, caused by the presence of the clothesline above the steps, which could carry washing which might distract the plaintiff.

38. Exhibit V does identify the clothesline. However, it does not identify the clothesline as a hazard of the type the plaintiff asks me to accept. Exhibit V says this about the clothesline:

“HAZARD DESCRIPTION:

The installation of a wall-mounted clothesline has introduced a hazard to the workplace as:

1. The bracket protrudes from the wall and could easily strike an individual exiting the adjacent door.

2. The protrusion does not allow appropriate use of handrail.

RECOMMENDATION:

The wall-mounted clothesline should be removed. A concern is that, during wet weather, the larger items of washing will not dry on the outside line. Consideration should be given to the following:

1. A retractable or wall-mounted clothesline could be installed in the front car port/area; or

2. The laundromat could be used during wet weather periods.

RESPONSIBLE PERSON/S:

Colleen Timms (by 01/05/2013) - Completion and Review.”

It should be noted that Associate Professor Yandell pointed out that the bracket holding the line would not prevent any person from gripping the handrail. However, the bracket near the door did, in fact, provide a striking risk, as a presence of the clothe/rag establishes. However, that is not a hazard that is relevant in the current case.

39. The duty of care which the law places on a defendant involves the premise that the plaintiff herself exercise reasonable care for her own safety. The plaintiff admitted she ought to exercise additional care on her first visit to any premises with which she was unfamiliar. Common sense tells us that if one visits somewhere that one has not visited before, one must be careful to observe what is around one and to identify any hazards. That duty may be less demanding when one is in public premises, where a high standard of safety is expected, such as, for example, a licensed premises, shopping centres, places of public resort, places such as an art gallery, a theatre, a court house, or a public building frequented by many members of the public. However, one does not expect the same standard in an ordinary residence.

40. Here, it is common ground that the defendant’s premises were constructed in accordance with Ordinance 71 and that the tiles used on the verandah and steps were typical of the construction used at that time. At [49] of his report, Mr Cockbain said this:

“The tiles used on the external stairs were typical of the construction used in premises in previous years. However, the writer is of the opinion that the stairs require the installation of nosings in order to provide adequate delineation and enable the plaintiff to safely access and egress the stairs.”

Professor Yandell, who visited the site, and conducted certain testing. [20] of his report is this:

“It can be seen from my photos that, at the time of my inspection:

1. The clothes line attached to the wall had been removed.

Comment: In my opinion, there was no need to do this since the line was only 30 centimetres from the wall, so the handrail could easily have been reached.

2. The containers that were situated beneath the clotheslines have been removed.

Comment: The presence of the containers would not have prevented a person holding the hand rail.

3. Yellow frictional nosings have been fitted to the steps.

Comment: As I will show below from a friction perspective, there was no need for the yellow nosings.

4. Similar mats have been placed at the foot of the steps.

Comment: It appears that the subject accident initiated at the top of stairs, so the mats had no influence on the outcome.”

41. Associate Professor Yandell used the British Pendulum Friction Test to measure the wet and dry friction of the tiles on the verandah at two locations where the tiles were similar to those on the steps. He provides a table of his findings. They showed a coefficient of friction in one area of 0.60 when dry and, in another area, of 0.63 when dry and, when wet, a coefficient of friction in the first area of 0.44. The Associate Professor went on to state this:

“24. So even if the steps had been wet, they would satisfy AS/NZ S3661.01 since they had a coefficient of friction of 0.44, which exceeds the 0.40 of AS/NZ S3661.01.”

That standard came into force in 1993 and, as I pointed out earlier, it is common ground that this house was constructed prior to 1 July 1974. The Associate Professor also carried out the test mandated by AS/NZ S4663 2004 and then stated this:

“31. With a wet BPN of 44, table 1 indicates that even when wet the steps have a moderate to low contribution to slipping. In the dry condition, the tile coefficients of frictions were approximately equal to 0.60, which is greater than the 0.40 in Table 2.”

The Associate Professor went on to express these opinions:

“32. As shown above, the tiles on the verandah are highly frictional when dry and contribute little to the risk of slipping when wet. The clothesline or bucket on the steps would not have prevented the plaintiff grasping a handrail. It is my opinion that the 10 millimetre variation in riser heights of the steps would not have been sufficient to cause the plaintiff to stumble.

33. When the house was built, there was nothing in Australian Standards to advise of nosing demarking or dimensional considerations. Currently, the Building Code of Australia does not stipulate that domestic step nosing should be demarked.”

42. Again, the plaintiff’s case falls back to the washing on the line being a distraction to her, and this is alleged to have been caused by the negligence of the defendant. In my view, the plaintiff’s accident occurred because she failed to watch she was placing her left foot when she knew of the existence of the steps and she knew she was standing near them and failed to look where she placed her left foot, which unfortunately was over the first step down, causing her to lose balance and fall. The plaintiff, in my view, did not take reasonable care for her own safety.

43. As I have earlier indicated, there are many things which can distract a person who is near or on a staircase or set of steps. There is no evidence that any person other than the plaintiff had ever suffered from the distraction which the plaintiff suffered, which led to her fall. As I said, I do not know for how long the wall-mounted clothesline had been in place at the defendant’s premises, but from the condition of the cloth/rag, it appears to me to have been probably at least a year and one can speculate about many scenarios: that it may have been erected by Mrs Day’s late husband many years ago to make it easier to dry washing when the weather was inclement.

Missing witnesses

44. Much has been made of the absence of Mr Geoffrey Day from the witness box by the plaintiff. However, there is no property in a witness. A Jones v Dunkel inference may be drawn if one would suspect that a witness would be called in one party’s case, compared to the other party’s case. One could expect a relative of a party to be partial to that party. One could expect, for example, a husband to support his wife’s case and that is exactly what happened in the current case. That the plaintiff’s husband’s evidence was partial to the plaintiff’s case is undeniable, in my view, leading me to give little weight to his evidence at all. Often, a party is criticised if the party does not call an employee who might be a material witness. That is because, in my view, some employers might take askance an employee giving evidence against the employer’s interests or some employees might fear giving evidence against the employer because of perceived future disadvantage. Equally, some employees might wish to give evidence on behalf of their employer to advance their own interests and, therefore, their evidence might be favourable to the employer.

45. Here, Mr Day was clearly the son of the defendant. However, there is no suggestion that he has any personal interest in the outcome of these proceedings. It is common ground that the defendant is insured for her liability towards the plaintiff. If judgment is given against the defendant, there is no suggestion that the defendant would have to pay any money at all. It will be paid by her insurer. Given the state of the defendant’s health, it is unlikely that she would be even concerned about the outcome of this litigation and might not even be cognisant of her son’s giving evidence in the plaintiff’s case, if he were called in the plaintiff’s case. There is no reason to believe that, if called in the plaintiff’s case, Mr Day would give evidence partial to his mother’s case.

46. In the circumstances, I decline to draw any Jones v Dunkel inference because of a failure on the part of the defendant to call Mr Day to give evidence. He could have been called, if his evidence would have advanced the plaintiff’s case, by the plaintiff herself. Many of the submissions about the absence of Mr Day from the witness box smacked, in my view, of inverting the onus of proof, requiring the defendant to disprove what the plaintiff must herself prove.

44. A finding for the plaintiff in the current proceedings would require every householder to remove from the vicinity of any step or staircase anything which might distract a newcomer to the premises from watching where he or she was going when he or she knew of the presence of the staircase and where it was in relation to where that person was but a few moments earlier.

Civil Liability Act 2002

48. I turn then to provisions of the Civil Liability Act 2002. Section 5B is headed “General Principles”. Section 5B presupposes the existence of the law of negligence and operates against its background: RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263. Section 5B(1) sets out a number of necessary conditions which need to be satisfied before a defendant can be held liable for a failure to exercise reasonable care. Satisfaction of the conditions prescribed by s 5B is a necessary but an insufficient prerequisite for a breach of duty to be proved. The Court is required to consider matters under s 5B prospectively, not retrospectively. This has been established by Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126]-[128] in the judgment of Hayne J. It is impermissible to simply identify what steps, if taken, could have avoided the injury suffered by a plaintiff. I am required to consider the matters in s 5B(1) and assess whether reasonable care required a defendant in his, her, or its position to have taken the steps it is alleged should have been taken.

49. This is reinforced by s 5C(b) of the Act, which provides that:

“[...] the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect the liability for the way in which the thing was done.”

While duties of care vary in scope and content, they are in every case discharged by the exercise of reasonable care.

50. There is no duty to prevent harm occurring to others or to ensure that harm does not occur. That can be found in the judgment of Gummow J in RTA v Dederer (2007) 234 CLR 330. Necessarily, even if a risk of harm may be foreseeable, it may be reasonable to do nothing in response to the perception of such a risk of harm. In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, McHugh J said at [38]:

“A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course. If an action is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk.”

51. As has been submitted by learned counsel for the defendant, at the outset it is necessary to characterise the relevant risk. It is only be identifying the relevant risk of harm that the Court can proceed to ascertain its foreseeability and consider whether the defendant was negligent in failing to take precautions against the risk it allegedly failed to undertake. In RTA v Dederer, Gummow J cited with approval at [61] the observation in Bolton v Stone [1951] AC 850 at [858] that:

“… in order that the act may be negligent, there must not only be a reasonable possibility of its happening, but also of injury being caused.”

The defendant made this submission:

“In the present case, the relevant risk is the risk that someone in the position of the plaintiff may misstep while on the patio and injure himself or herself, even though he or she was aware of the presence of the steps.”

The plaintiff did not succinctly state what the risk in question was. Perhaps the best formulation of the risk, according to the plaintiff’s case, is that the relevant risk is the risk that someone in the position of the plaintiff might misstep whilst on the verandah and injure herself, even though she was aware of the presence of the steps, because of being distracted by washing hanging on the clothesline.

52. In either case, there is no evidence that the defendant knew of any similar incident ever having occurred. The defendant submitted that there was no basis for a finding that the defendant knew of any such risk or that the defendant ought to have known of such a risk. The evidence before me does not disclose who hung out the washing. It could have been Mr Geoffrey Day. It could even have been the defendant herself, although that seems unlikely. The best evidence about that is contained in the plaintiff’s statement, exhibit T. I, again, recite that the statement says this:

“The typical services provided to Mrs Day each morning included showering and having her washing done.”

If employees of the Clarence Valley Council Community Support Service did the washing each morning, one would expect the washing to be hung out by the person who performed the wash. I know from exhibit L11 that, on the morning of 16 April 2013, what had been hung out on the clotheshorse were tea towels and bath towels. Presumably, they had been washed on that morning and hung out that morning by the worker from the Clarence Valley Council Community Support Service, who had attended upon the plaintiff. Whether the defendant herself knew where the sheets had been hung out is a matter for speculation. They could have been hung out on the rotary clothesline. All the evidence suggests that it was a fine day and it does not appear that anyone foresaw the possibility of wet weather. A worker could have hung the washing on the rotary clothesline on the morning of 15 April, but clearly did not. The plaintiff has failed to prove that the defendant knew where the sheets had actually been hung. There were two possible places: the clothesline affixed to the wall and the rotary clothesline. Clearly, sheets are not hung on clotheshorses.

53. The other problem with the plaintiff’s case is that it is unknown whether Mrs Day remembered whether the plaintiff had been in her backyard on one of the previous occasions on which the plaintiff had attended upon her. As I pointed out earlier, the plaintiff’s evidence is that she visited the defendant on about 50 occasions. Over a period from 2008/2009 to 2013, many, many employees of the Clarence Valley Community Support Service would have visited the plaintiff and many of those workers would have hung out washing. One asks rhetorically: how would Mrs Day remember which worker had been outside and which worker had not been outside, meaning in the backyard?

54. Section 5B(1)(b) requires that the risk be “not insignificant”. That phrase refers to the probability of the occurrence of the risk. There has been much debate in the authorities of the meaning of the words “not insignificant”. The defendant submitted that the risk of a misstep by somebody aware of the presence of the steps would have to be considered “unlikely” to occur, even if it were considered to have been foreseeable as required by s 5B(1)(a). I accept that submission. It is unlikely and, in my view, in such circumstances, could be said to be “insignificant”. The risk of somebody being distracted by washing hanging on the line from perceiving her proximity to the steps, of which she was aware, is even more unlikely and, therefore, also insignificant.

55. Section 5B(1)(c) requires that, in the circumstances, a reasonable person in the position of the defendant would have taken the precautions to avoid the risk of harm. The precaution here urged upon me was to give the plaintiff a warning. It seems to me an extraordinary proposition that a 92-year-old lady should be required to warn a 60-year-old lady that there was washing hanging on the line near the steps and not to be distracted by the washing hanging on the line the steps, when the presence of the steps was obvious to the 60 year-old woman. In other words, I am also of the view that s 5B(1)(c) is not here satisfied.

56. Section 5B(2) is in the following terms:

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

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

(b) the likely seriousness of the harm,

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

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

I accede to the defendant’s submission that, in the absence of any evidence of any prior occurrence of injury to a person in the position of the plaintiff, the probability of someone’s misstepping from the verandah when the person was aware of the presence of the steps would have to be considered miniscule and, hence, the “likely seriousness of the harm” would have to be considered minimal. The precaution which could have been taken to obviate the risk of the plaintiff’s being distracted by clothes hanging on the clothesline would have been only to remove the clothesline because the alternative was not to hang clothes on the clothesline, and a clothesline from which clothes cannot be hung is a useless thing.

57. When the defendant prepared written submissions, they were obviously prepared in anticipation of the plaintiff’s case about being the delineation of the edges of the stairs to draw their attention to the plaintiff, but ultimately that was not the plaintiff’s case. Section 5C(a) extends the burden required to be taken into account by the court. That paragraph provides this:

“the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible [...]”

“Harm” is defined in s 5:

“harm means harm of any kind, including the following:

(a) personal injury or death,

(b) damage to property,

(c) economic loss.”

In assessing whether the defendant failed to take reasonable precautions, the Act requires me to consider the burden of taking precautions to avoid “similar risks of harm” rather than simply considering the risk of harm contended by the plaintiff. The defendant has submitted that, in these circumstances, I am required to have regard to the burden of taking precautions with respect to all items which had the potential to cause “similar risks of harm”. Accordingly, the burden of taking precautions to avoid harm of someone injuring herself by misstepping on any part of the defendant’s premises has to be taken into account for the purpose of s 5B(2)(c).

58. The defendant then referred me to Stannus v Graham, which Mr Guihot pointed out to me was also cited with approval by Mason P in Francis v Lewis [2003] NSWCA 152 at [40] to [41] and is also referred to in Sakoua v Williams [2005] NSWCA 405 at [26]. I have already pointed out what was said in Stannus v Graham at some length. In the circumstances, applying the general principles required by s 5B, I am not persuaded that the defendant has been negligent.

59. The defendant’s written submissions also discuss at some length the provisions of s 5D and 5E of the Civil Liability Act 2002. I accept, as has been submitted by the defendant, that, firstly, the plaintiff has to prove that the defendant’s negligence was a necessary condition of the occurrence of the harm, which is referred to as “factual causation” and, secondly, that it is “appropriate for the scope of the negligent person’s liability to extent to the harm so caused,” which is the “scope of liability”. Section 5D(4) provides this:

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

The defendant submitted that it would not be appropriate for liability to be imposed upon her in the circumstances where the “real cause” of the accident was the failure of the plaintiff to look where she placed her foot when checking the washing. I accede to that submission. Effectively, the plaintiff misjudged her footing when she knew that she was near the steps, when she knew the steps were there, because she was more intent upon feeling the washing to see whether it was dry, misjudged where the step was and simply did not look where she placed her foot. In the circumstances, it does not appear to me to be appropriate to impose liability upon the defendant and, if liability were imposed upon the defendant, as I have earlier stated, it would lead to the proposition that anything that might distract a person near or on a step or staircase should be removed. That would be an onerous duty.

60. In summary, therefore, when I consider the provisions of the Civil Liability Act 2002, I am not persuaded that the defendant had been negligent.

Particulars of negligence

61. I am fortified in that finding when I return to the particulars of negligence given in the statement of claim. I shall cite each one and then comment:

“(i) Failing to warn or advise the plaintiff of the risk of harm constituted by having the said steps hidden in shadow from adjacent trees.”

The stairs were not hidden. The plaintiff saw them.

“(ii) Failing to trim or lop adjacent trees so as to remove the shadow effect upon the said steps.”

The stairs may have been in shadow. They were under the roof of the verandah. However, the plaintiff nevertheless saw the steps, so that particular is irrelevant.

“(iii) Failing to delineate with paint or other substance the edge of the steps from the surrounding verandah.”

As I have pointed out, that would not have prevented the plaintiff’s fall. The plaintiff knew the steps were there, approached close to them, and did not look where she placed her foot. It does not matter what colour the edges of the steps might have been. The same accident would have occurred because she failed to watch where she was going.

“(iv) Placing a clothesline in close proximity to the rear steps of the property, thereby causing persons using the clothesline to have their attention diverted from the presence of nearby steps, thereby constituting a significant risk of harm.”

I have sought to discuss this earlier in these reasons. That is essentially the ground advanced by the plaintiff in submissions at the end of hearing.

“(v) Failing to move the clothesline from the rear verandah to a point away from the steps, concealed by shadow at certain times during the day.”

Perhaps that particular should be read as, “Failing to remove the clothesline from the wall.” However, as no accident of the type suffered by the plaintiff had earlier occurred and as there was no evidence of any earlier complaint about the clothesline causing the risk the plaintiff alleges, and as the risk was negligible, I have not found the defendant to be negligent in failing to remove the clothesline.

“(vi) Failing to eliminate the risk of injury that was not insignificant and could have been eliminated by the exercise of reasonable care by the defendant.”

This is not a particular of negligence. This is a reiteration of the allegation of negligence.

“(vii) Failing to warn the plaintiff of the risk of danger which presented to persons using the clothesline by virtue of the close proximity of the steps.”

The plaintiff was not using the clothesline as such. She was not hanging out washing or taking washing in; she was merely reaching up to feel the sheets to see if they were damp or dry. However, that may constitute a use of the clothesline. However, the clothesline had been there for some considerable time and no earlier accident or injury had been reported nor is there any evidence of any earlier complaint about the proximity of the clothesline to the steps offering some sort of hazard. This accident occurred because the plaintiff, who was aware of the step, allowed herself to be distracted by the washing hanging on the line.

“(viii) Failing to ensure that the steps were adequately designed and constructed (included but not limited to the stair surfaces).”

As the evidence has unfolded, there was nothing inherently dangerous in the steps themselves, either in their dimensions, or their construction, or their surface.

“(ix) Failing to ensure that the design and construction of the stairs complied with all relevant Australian standards.”

Firstly, there was no such duty. Secondly, at the time that the house was constructed, the house complied with the relevant requirements of Ordinance 71. However, the steps do comply with subsequent building requirements in any event.

“(x) Failing to ensure that the stairs had a non-slip surface.”

The stairs had a non-slip surface, but the existence of a non-slip surface is irrelevant because that did not cause the plaintiff to misstep.

“(xi) Allowing bins, buckets, containers, or other items to be present near the clothesline and railing, thus causing additional shadow over the subject steps and the presence of such items distracting the plaintiff’s attention from the said steps.”

The items in question did not distract the plaintiff at all: she did not see them. She did not see them because she was not keeping a proper lookout. In any event, what she says distracted her was the queen-sized white bed sheet hanging on the clothesline rather than the objects below the clothesline.

Use of photographs

62. It follows that there will be a verdict for the defendant. However, lest I be wrong, the Court of Appeal requires me to assess the plaintiff’s damages in any event. I shall very shortly go on to do so, however, I should advert to one evidentiary matter. As I said, the plaintiff’s expert relied upon photographs only and photographs were used extensively during the hearing. Learned counsel for the defendant drew my attention to certain authorities, which comment upon the use that may be made of photographs in a case of the current type. The authorities were Angel v Hawkesbury City Council [2008] NSWCA 130 and Blacktown City Council v Hocking [2008] NSWCA 144. Those two cases were heard together and judgment in each case was delivered on the same day. The bench comprised Spigelman CJ and Beazley, Giles, Tobias, and Campbell JJA. In Angel, a joint judgment was given by Beazley and Tobias JJA, with whom the other judges agreed. The joint judgment comments upon the use that may be made of photographs between [67] and [72], which I shall not cite here. In Hocking, the use of photographs was considered by Spigelman CJ between [7] and [13], where his Honour concluded that it appeared to him that the authorities that had been thought to be leading authorities may need to be reconsidered. The principal judgment was given by Tobias JA, commencing at [77]. His Honour turned to consider factually the use of photographs at [149], then considered the law between [167] and [170] and then applied the law to the facts of the case then before him between [171] and [172]. His Honour reached the view that the evidence of an expert is required to interpret some photographic evidence.

63. I cannot rely in the current case upon photographs taken at various times of day on various days other than 15 April 2013, or 15 April in any other year, or at different times of the day other than at 4.20pm to ascertain what the lighting may have been like at the relevant time, without some expert evidence. I was addressed at some length by Mr Curran about the significance of the shadowing in the photographs taken by Professor Yandell that are annexed to his report. I draw no inferences about lighting at all from the photographic evidence. I merely rely for my decision upon the plaintiff’s evidence that she saw the steps on at least two occasions prior to approaching them to reach out to the sheets to find out whether they were dry or damp.

Damages

64. I turn, then, to the question of damages. The plaintiff managed to make her way slowly and painfully from the backyard of the defendant’s house around the side of the house to its front and to her car, where she used her mobile phone to contact her friend, Anne Marie Fischer who, when she arrived very shortly thereafter, called an ambulance. The plaintiff was taken by ambulance to the Grafton Base Hospital. There is no actual report from the hospital itself. The plaintiff was admitted. She came under the care of Dr Sam Martin, an orthopaedic surgeon. On 18 April 2013, Dr Martin performed surgery. The report of the surgery is part of exhibit D. The diagnosis it contains is a fracture of the left fibula, a fracture of the right fibula, and a fracture of the right fifth metatarsal.

64. The description of the surgical procedure performed on 18 April 2013 gives some idea of the pathology involved. It is this:

“Under general anaesthetic with tourniquet control, intravenous antibiotics after compound scrub and sterile prep and drape. A direct lateral approach to the left fibula was fashioned. The superficial peroneal nerve traversed over the fibular fracture. This was carefully preserved and retracted. Haemostasis was achieved. The fracture ends were identified. An anatomical reduction was achieved and maintained with a VariAx locking plate. Image intensification confirmed satisfactory reduction, ankle congruency, and position of implants. The wounds were washed out and then closed in layers with Polysorb and Caprosyn after local anaesthetic was infiltrated. Sterile dressings were applied. A slab was applied. A carefully-moulded slab was then applied to the right foot and ankle.”

That description of the left lower limb implies to me a fracture of the left fibula near the ankle, involving the ankle. The fracture appears to have been compound. There was no compound fracture of the right fibula, but again, it was near the ankle and required a slab being applied to the foot and ankle, as well as to the lower portion of the lower limb.

66. After surgery, the plaintiff had physiotherapy in hospital. She was discharged on 3 May 2013. She was confined to wheelchair at that time. On 7 May 2013, the plaintiff saw her general practitioner, Dr William Coorey, at the Queen Street Clinic. Dr Coorey describes the plaintiff as injuring her head, her left elbow, and both ankles and her right foot. The plaintiff told me of a head injury, which bled copiously immediately after her fall, but appears to have been merely a soft tissue injury. Dr Coorey described it as a soft tissue injury to the plaintiff’s temple. When Dr Coorey saw the plaintiff on 7 May 2013, she was in a wheelchair “due to both ankles having plaster slabs applied to them”. Since then, the plaintiff has been regularly reviewed by Dr Coorey about her injuries and other medical issues.

67. Essentially, the plaintiff was absent from all her work until 10 September 2013. She was then assessed as being fit for selected duties. The plaintiff returned to suitable duties, essentially clerical work, with the Clarence Valley Council on a graduated return-to-work program. Initially, she returned to working for two hours per day for two days per week. The hours were then increased to three hours per day for two days per week, and eventually, on 22 October 2013, she was certified as being fit for work for three hours per day for three days per week, but that regime did not last long at all. By 6 November 2013, the plaintiff was back to two hours per day for three days per week. There was an intervening event when she actually trod on a stone with her right foot and her right ankle twisted, causing increased pain. That happened at the end of October 2013. There would have been a short period of time off work, then she returned to working only two hours per day for three days per week. The plaintiff remained on that work regime until she took a redundancy on 22 December 2013.

68. The Clarence Valley Council Community Support Service was undergoing a restructuring. According to the plaintiff, the restructuring would have required her to work 15 hours per week. She was unable to do so and, hence, she took the redundancy. She received a lump sum benefit of $6000. Since then, the plaintiff has not worked. She told me that she looked for work by looking in a paper or papers for work, but she admitted that the majority of vacancies these days are advertised on the internet and she had not looked for work on the internet. When cross-examined about her attempts to find work, I was led to the view that her looking for work was probably desultory, but that was probably based on her perception of the local labour market. She would have been looking for work in early 2014, when she would have been about to turn 62 years of age, when it is unlikely that there would be many employers who would offer her work.

69. The plaintiff’s recovery was, to an extent, complicated by an emotional or psychological reaction to her injuries. She commenced seeing Ms Margaret Hutchings, a counsellor, on 15 August 2013. Notes made by Ms Hutchings are exhibit G. Those notes indicate that, on 15 and 29 August and 19 September 2013, the plaintiff was provided with cognitive behaviour therapy. The relevant notes recorded by Ms Hutchings are these:

“Presentation calm and lucid. Had fall down 2 steps at work. Broke 2 ankles, elbow injury, struck head. Recovery at home caused issues in relationship, as husband coped poorly with managing carer role. Adjustment to injury discussed. Family history including loss of child and son’s breakdown discussed. Options for the future explored. Possibility of return to work discussed. Also has degenerative kidney disease and has been told stress is not good for her. Facing dialysis in future. Multiple traumas in family history …

Presented without walking frame. Work 3 hours. Improved mood and function. Final session discussed possible redundancy and, should it be necessary, to reapply.”

70. The plaintiff returned to see Ms Hutchings on 9 January 2014. The notes made by Ms Hutchings are these:

“Taken redundancy and is struggling with this more than she expected. Discussed. Cognitive behaviour therapy. Relationship with husband and tendency to build walls discussed. Past issues including death of son …”

There were further attendances upon Ms Hutchings on 23 January 2014, when the major discussion was about a relevant family anniversary which had upset her. She finally attended up Ms Hutchings on 6 February 2014, when the following notes were made:

“Went to assessment from WC claim and has decided that she is not ready emotionally to work. Does not want to drive to Lismore and look for work. It would seem unreasonable to suggest that she could easily get work that could be maintained for 6 hours a week when driving would take one hour each way …”

The proposal at that time was that the plaintiff might be able to find “suitable employment” at Lismore when she lived in South Grafton and the drive would be at least an hour, if not longer, between her home and Lismore.

71. Initially, the plaintiff’s problems did not enable her to drive. It was Dr Martin who cleared the plaintiff to return to some work. He said that, starting from 9 September, she would do work for three hours each Monday for two weeks and, in the following two weeks, she would work four hours each Monday and then there was the possibility of increasing her hours to two days per week in October.

72. As I have already stated, the plaintiff did not get back to working any longer than three hours per day and eventually it was settled that she could work for three hours per day for two days per week. One of the problems which stopped the plaintiff driving was her left elbow pain, which stopped her turning the steering wheel of the car and a continuing problem in her right ankle interfered with her ability to control the pedals of the car.

73. On 30 August 2013, Dr Martin noted that the X-ray of the plaintiff’s left elbow showed union of the fracture of the neck of the radius and that there were some fragments of bone anterior to the humerus. X-ray of the right foot showed union of the fifth metatarsal fracture, but “probably non-union of the distal fibular fracture”. As far as Dr Martin was concerned, the plaintiff’s left ankle fracture was by that time united. By 27 September 2013, Dr Martin noted the plaintiff was able to drive. By 26 November, the doctor thought the plaintiff’s remaining problem was in her right foot and ankle and that she still had significant pain on the outside of her left ankle in the area of the distal fibula. The plaintiff had ongoing right ankle pain when seen by Dr Martin on 10 December 2013. In a report of that date addressed to Dr Coorey, Dr Martin commented on a recent CT scan of the right elbow which showed some underlying ankle arthritis. The plaintiff’s major complaint is of ongoing problems in her right ankle and I accept that, because of the fracture of the right ankle, there is some ongoing arthritis in the right ankle joint.

74. The rest of the medical evidence before me is medicolegal. The plaintiff was reviewed by Dr John Ashwell, an orthopaedic surgeon, on 29 January 2014. Dr Ashwell recorded the fact that the plaintiff took redundancy on 22 December 2013. She told him that she had intended to continue working as a support worker a “few more years”. The plaintiff told me that she had intended to work to the age of 70, which of course would take one to 2022, which is not a “few more years” from early 2015. Dr Ashwell said this of the plaintiff’s social situation:

“Ms McKenzie is married and lives with her husband in a house on a farm of 66 hectares. They have no dependent children. Her husband, Kim, works as a garbage collector full-time. They have no livestock on the property. She is able to manage her own self-care and do the housework. She can even do the vacuuming at her own pace. Two weeks ago, she was able to return to using a ride on mower. Prior to the injury, she looked after chooks for egg production. This is now needed to be done by her husband as she cannot cope on the uneven ground.”

Dr Ashwell expressed the view that the plaintiff was incapacitated for her pre injury work as a result of her injury, but that she would be able to manage “suitable duties” or supervisory office work for 15 hours per week. He thought the main restricting factor in the plaintiff’s work capability was her persisting right ankle symptomatology.

75. On 4 February 2014, the plaintiff was examined by Shannon Goodwin, a rehabilitation consultant, for a rehabilitation service retained by the Clarence Valley Council’s workers compensation insurer. “Shannon” is the name of a river in Ireland. It was first used as a forename for males. It is now sometimes given to females as well. I do not know Shannon’s sex. I trust I shall be forgiven if I use the wrong personal pronoun or title. Ms Goodwin came to the view that the plaintiff had a physical capacity for sedentary work. She identified work as a receptionist, as a vocational education teacher in aged care, and as a recreational officer. As far as vocational education was concerned, Ms Goodwin said that not all components of the job role were then in the plaintiff’s capacity. As far as the recreational officer was concerned, Ms Goodwin said the plaintiff had demonstrated an ability to perform “components” of that job, but clearly not all of them.

76. On 10 February 2014, Ms Gina Bremner of the same rehabilitation provider carried out a “vocational assessment”. She was of the view that the plaintiff’s ability to work as a vocational educator teacher or a recreation officer was precluded by reason of her injuries. She was of the view that the plaintiff could work as a receptionist. However, the report says that Ms Bremner contacted a number of employers. The relevant parts of the report are these:

“Employer 1 - Nortec Grafton.

The representative advised that the labour market is extremely poor in the region. He advised that with the Telstra closure (250 jobs), the abattoir and downsize of the jail [sic] there is limited employment prospects in the region. Receptionist roles are rare and usually employers require someone who is multi-skilled, eg, able to do MYOB accounts. Formal qualifications are not necessarily required, rather past experience. The representative advised they only have on position at present and it is Indigenous identified. Often, employment opportunities are reduced hours, 3-4 per day, and casual in nature. The representative advised it is extremely rare for entry-level roles to become available. Recovre discussed work trial incentives and was advised that they are also offering these, however, are finding it difficult to get employers to come on board, stating, ‘Employers need to have the work.’ The representative advised that wage incentives may assist with the return to work process, given the current economic climate within the region. The representative suggested doctor surgeries as the type of business with most potential opportunities.

Employer 2 - Queen Street Clinic Grafton [ie, plaintiff’s own medical provider]

The representative advised that no formal qualifications are required, however, computer skills are necessary. However, on the job training is provided and specific databases are used. Good customer services are necessary, however, prior medical experience is not a requirement. The representative advised that roles are usually permanent, part time, or casual in nature, so reduced hours are an option. However, the representative indicated that there was limited employment prospects within the region. The representative was uncertain as to wages, however, indicated they are as per the relevant award (Clerk’s Award).

Employer 3 - Grafton GP Super Clinic

The representative advised that, given their organisation is a ‘super clinic’ (has 15 GPs, plus allied health professionals, plus visiting specialists), higher level administrative skills are required. Good computer skills are necessary (paperless office environment), ability to work in a busy environment and adapt to a large work environment. Formal qualifications are not necessary, however, are looked upon favourably. The representative reported the labour market was extremely competitive and when they advertise they received hundreds of applications. Positions can be full time, part time, or casual. The representative advised that, given the role can be very busy, the functional demands require the ability to swivel in a chair and alter postures frequently from seated to standing. However, Recovre was advised that this employer accommodates people in accordance with their capacity and there are duties such as confirmation calls, filing, scanning, recall/reminder calls, that can be provided. The representative advised importance is placed on team fit and ability to adapt to workflows, attitude, and willingness to learn. They have just employed two people, therefore, no roles available at present.”

Put shortly, the job market for the plaintiff in Grafton to become a receptionist was and is extremely bleak.

77. The plaintiff was seen by Dr James Bodel for her own solicitors on 25 July 2014. According to Dr Bodel, the plaintiff’s left foot and ankle had recovered. Her ongoing complaint was of a problem in the right foot and ankle, with continuing pain, stiffness, and swelling. Dr Bodel expressed the view the plaintiff was suffering from a 9% lower extremity impairment overall because of problems with ankle dorsiflexion and limitation of the subtalar joint.

78. The plaintiff has been seen by Dr Frank Harvey and by Dr Richard Sekel for the defendant. Their reports were tendered in the plaintiff’s case. The diagnoses offered by Dr Harvey are these:

“Mrs McKenzie suffered an undisplaced fracture through the distal end of the right fibula and an undisplaced fracture of the base of the right, fifth metatarsal, and a fracture of the lower end of the left fibula at the level of the ankle joint. In addition, she had undisplaced fractures of the coronoid process of the left elbow and of the radial neck.”

Dr Harvey expressed the view that it was consistent that the plaintiff could get residual pain in her right foot and ankle after prolonged periods on her feet. He accepted that the plaintiff would have difficulty, considering her age, in returning to work that involved prolonged periods of being on her feet, but he thought she was fit for lighter work. He also pointed out that there was osteoarthritis in the plaintiff’s right ankle, which clearly has only come on after the plaintiff’s accident.

79. Dr Richard Sekel, it appears to me, was more concerned about other medical problems which afflict the plaintiff than the injuries that she sustained in the accident now in question. As I read the doctor’s report, he believed that the plaintiff did have an incapacity for her pre injury work because of her injuries, but that her general condition from other, pre-existing conditions would have precluded her, in any event, from carrying out her pre injury duties.

80. That the plaintiff had pre-existing medical problems is undoubted. The plaintiff freely admitted them. She has an hereditary kidney disorder. Her current advice is that when she turns 70 she will need to undergo kidney dialysis. However, she is hopeful that a new medication, which she has been told by her specialist will become available, may postpone the need for dialysis until the age of 75. The plaintiff has long-term problems with low back pain which are ongoing. She also has had, for many years, arthritis in both knees. There is also a history of psychological problems due mainly to unfortunate occurrences in her life, but there is no suggestion that there is any ongoing psychiatric problem which interferes with the plaintiff’s ability to work or that maximises the effects of the current injury upon her. Dr Sekel also diagnosed “chronic abdominal pain”, but that appears, if it does exist, to be caused by a reaction to prescribed medication.

81. The plaintiff maintains that she kept herself fit by waking daily for about two kilometres and swimming two to three times per week. By the time she saw Dr Ashwell, the plaintiff had returned to aqua aerobics, but had not yet returned to her lengthy walks to maintain her fitness. As I understand it, her ability to do the lengthy walking to keep, for example, her kidney condition under control has been interfered with by the ongoing problems in her right ankle. I trust I have said enough on the question of damages to explain my findings.

Non-economic loss

82. The plaintiff submitted that she ought be awarded 30% of a most extreme case for non-economic loss. The defendant submitted a range between 25% and 27%. Whilst the percentages are within a short range, because of the way the Civil Liability Act operates, the difference in outcome is large. For example, 25% of a most extreme case is $38,500; 27% of a most extreme case is $59,500; 30% of a most extreme case is $136,500. The plaintiff’s age must be taken into account. She was 60 years old at the time of the accident. She is currently 64 years of age. She turned 61 on 30 May 2013, a number of weeks after the event. If she has a normal life expectancy, she can expect to live for a further 24.71 years. However, I do not know whether the hereditary kidney problem would interfere with her expectation of life. Orthopaedic problems such as osteoarthritic knees, osteoarthritic ankles, and degenerative disc disease of the spine do not normally interfere with a patient’s life expectancy. Whilst I do not wish to minimise the extent of the plaintiff’s injuries, in the grand scheme of things, an ongoing problem with an ankle which has now been the subject of the onset of osteoarthritis is not to be compared to any great extent such as conditions with quadriplegia and paraplegia. I, therefore, accede to the defendant’s submission that the plaintiff’s case stands in proportion to a most extreme case in the ratio of 27: 100. That allows a plaintiff’s non-economic loss at $59,500.

Past economic loss

83. The parties are agreed as to the plaintiff’s economic loss up until the time of her retrenchment. The plaintiff claims full economic loss to date, less the redundancy payment and future loss of earning capacity to the age of 70, as if she were totally incapacitated. The problem for the plaintiff is that she was seeking to return to working nine hours per week, which was the perceived number of hours that she had been averaging each week. The plaintiff was cross-examined to the same effect. However, it was eventually agreed that exhibit 3, a list of payments made to the plaintiff for each of the periods ending from 1 July 2012 to 14 April 2013, gave an average of 10.06 hours per week. That was the number of hours the plaintiff was used to working. Under the restructure that came in at the time of the plaintiff’s retrenchment, she would have been required to work 15 hours per week. Whether she wished to do so or could do so is problematic. If the plaintiff believed that she could work 15 hours a week, why, I ask rhetorically, was she not working 15 hours a week in the year preceding her injury? The plaintiff conceded that she could work six hours per week. This has been stressed by the defendant.

83. However, there is a way through this labyrinth. In her evidence-in-chief, the plaintiff identified five alternative providers of home care support, similar to the services offered by the Clarence Valley Community Support Service. I have noted them down as being Cranes, RSL, Anglicare, Aqua, which is based at Ballina, and Feros Services. In other words, the plaintiff could, but for injury, have worked for ten hours per week for another employer doing similar work.

84. What the plaintiff would have earned but for injury has been agreed between the parties, based upon the number of hours that she was working per week. Between 15 April 2013 and 14 April 2014, she would have earned $270 per week net. Between 15 April 2014 and 14 April 2015, that increased to $280 per week. From 15 April 2015 to 14 April 2016, it increased to $290 per week. From 14 April 2016 to date and in the future, it amounts to $300 per week. The plaintiff could work six hours per week if such work were available to her. However, there is no such work currently available to her and certainly none could be found for her by her former employer’s workers compensation insurer.

85. I referred, in the course of argument, to the line of authority which includes Kallouf v Middis [2008] NSWCA 61. However, that was doubted in White v Benjamin [2015] NSWCA 75, although, in that case, there was ample evidence from the plaintiff’s subsequent work that she did have a residual capacity of the kind found by the trial judge and the court held that it would be wrong to require the respondent to demonstrate to the Court that such work was available for the plaintiff in that case in Canada, to which she had gone after her injury. The case is different to the present one.

86. Here, the plaintiff does have an ability to do receptionist-type work for six hours per week and that does indicate that her economic loss should be diminished. Accordingly, I believe it appropriate to award the plaintiff for the past, half the economic loss which she claims through her counsel in the plaintiff’s Amended Schedule of Damages, which is MFI 12. The amount of the past economic loss stated therein is $47,817. Half that sum is $23,908.50, which I round down to $23,908.

87. This question then arises: what ought I do with the redundancy payment? What I am postulating would require the plaintiff to leave the employ of the Clarence Valley Council and take up employment with one of the other agencies to which I have referred. In those circumstances, she could keep the redundancy payment, so I do not offset that payment.

Other losses

89. Out-of-pocket expenses are agreed at $55,590. Past superannuation is 11% of $23,908. I round that sum up to $2630.

Future economic loss

90. I have already outlined what the plaintiff’s case is as to future economic loss. The plaintiff claims $300 per week for 5.75 years, undiscounted, which reaches the sum of $69,450. The defendants submitted that, for future economic loss, I would only allow a “cushion” of $5000. If I proceed on the same path I proceeded on when considering past economic loss, I would halve the sum claimed by the plaintiff. However, in my view, the sum must be discounted and, despite the submission of Mr Curran, should be discounted more heavily than usual because the plaintiff’s other medical conditions could well catch up with her as the evidence of Dr Richard Sekel attests. Half of the future sum claimed by the plaintiff is $34,725 and I discount that by 20%, which gives $27,780. Future loss of superannuation is 13.2% of that sum, $3667.

Future care

91. The plaintiff also claims $35,000 for future paid care. This claim is completely insupportable. It was not discussed in the oral evidence at all. In Nominal Defendant v Kostic [2007] NSWCA 14, Ipp JA, with whom Hodgson and Campbell JJA concurred, said at [75]:

“The judge made a finding that the respondent needed future care and assistance in the future of three hours per week. This did not exceed the threshold under s 128(3). Mr Roberts pointed out that the threshold under s 128(3) applies only to services provided free of charge. There was, however, no evidence from the respondent that she intended to hire commercial carers and incur costs in consequence. Again, the reasoning supporting this award is virtually non-existent and issues that are critical to the respondent’s entitlement to the award are not addressed.”

In ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 192, Sackville AJA, with whom Gleeson JA and McDougall J concurred, said, commencing at [62]:

“62. The primary judge found (at [73]) that the respondent required seven hours per week for future attendant care services and that $40 per hour was a reasonable commercial rate for that care. His Honour did not explain why he considered that an allowance should be made for commercial care, as distinct from an allowance in respect of gratuitous services.

63. Section 15 and 15B of the Civil Liability Act deal with gratuitous attendant care services. In order for the respondent to be entitled to damage in respect of commercial care services, she had to show not only a need for paid commercial care, but also that gratuitous assistance to satisfy the need unavailable: Berkley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [148] (Tobias AJA, Basten and Meagher JJA agreeing).”

Not only was there no statement by the plaintiff that she intended to acquire commercial carers and incur costs, there was also no evidence of a need for such commercial care to be provided and the evidence was that the assistance was gratuitously provided to the plaintiff by her husband who, in a very gentlemanly fashion, told me he considered it a man’s duty to provide for any woman, let alone his beloved wife. The claim for future paid care fails.

Future OPs

92. The plaintiff also claims $10,000 for future medicals. How that sum is arrived at is unknown. It appears to have come from Mr Curran’s ever inventive imagination. The plaintiff may have an increased need to attend upon her general practitioner, perhaps four times per year. She may require some future X-ray or the like investigation, and perhaps a review from time to time by a specialist orthopaedic surgeon. However, there is no suggestion that she would need to undergo future surgery or the like. An allowance of $5000 is, in my view, more than adequate to cover such costs.

93. The total of the plaintiff’s damages is $178,075.

Order

94. I have inquired of Mr Mulcahy, who appears as agent for the defendant today and is also taking the judgment on behalf of the plaintiff, if any further reasons for judgment are required and am told that none is so required. For those reasons, I give verdict and judgment for the defendant against the plaintiff.

**********

Decision last updated: 04 October 2016