Mohammed Abed v Canterbury-Bankstown Council

[2020] NSWDC 55

District Court

New South Wales

Medium Neutral Citation:	Mohammed Abed v Canterbury-Bankstown Council [2020] NSWDC 55
Hearing dates:	11-12 March 2020
Date of orders:	19 March 2020
Decision date:	19 March 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 165
Catchwords:	NEGLIGENCE – contributory negligence – plaintiff fell into pothole when stepping off pathway – whether contributory negligence is made out in plaintiff’s failure to take precautions and look down before stepping off pathway   DAMAGES – assessment of damages – personal injury – non-economic loss – past and future out of pocket expenses – future domestic assistance
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	ACQ Pty Ltd v Cook (2008) 72 NSWLR 318 Angel v Hawkesbury City Council (2008) Aust Torts Rep 81-955 Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561 Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Blatch v Archer (1774) 98 ER 969 Brodie v Singleton SC (2001) 206 CLR 512 Bunnings Group Ltd v Giudice [2018] NSWCA 144 C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 Carey v Lake Macquarie City Council (2007) Aust Torts Rep 81-874 Collins v Clarence Valley Council [2015] NSWCA 263 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Council of the City of Sydney v Bishop [2019] NSWCA 157 Council of the City of Sydney v Hunter [2014] NSWCA 449 Fallas v Mourlas (2006) 65 NSWLR 418 Grills v Leighton Contractors Pty Ltd (2015) NSWCA 72 Jaber v Rockdale City Council [2008] NSWCA 98 Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330 Smith v Alone [2017] NSWCA 287 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 Wallace v Kam (2013) 250 CLR 375 Wyong Shire Council v Vairy [2004] NSWCA 247
Category:	Principal judgment
Parties:	Mr M Abed (Plaintiff) Canterbury-Bankstown Council (Defendant)
Representation:	Counsel: Mr V Jurisich for the plaintiff Mr E Anderson for the defendant   Solicitors: PK Simpson Lawyers for the plaintiff Mills Oakley for the defendant
File Number(s):	2019/82187
Publication restriction:	Nil

Judgment

INTRODUCTION

1. On the evening of 13 June 2018, and in the company of his son, the plaintiff (Mr Abed), a disability pensioner, attended the celebration of Ramadan, at a mosque in Punchbowl. Earlier, he had parked his car in a carpark that was under the care, control and management of the defendant (the Council). The carpark was near Punchbowl Railway Station.

2. After attending the mosque, he was walking in the direction of his car. There were a number of entry points for a pedestrian to the carpark. Mr Abed and his son spotted what they thought was their daughter’s car and they sought to determine whether that was so. They chose to proceed through a garden pathway or garden bed which facilitated access through to the carpark. The garden pathway was elevated so that it was necessary for Mr Abed (and he knew) that he would have to step up off the pathway at one end and step off at the other end. Although not measured, to the naked eye, the elevation was not particularly pronounced – it appeared to be a matter of centimetres. In the process of stepping off the garden pathway and onto the carpark, the plaintiff stepped onto a pothole and fell. As a result of the fall, Mr Abed twisted his right leg and immediately suffered a broken right foot. Within weeks, he also complained of pain to his left shoulder.

3. By this proceeding, he brings a claim for damages against the Council for his personal injuries sustained as a result of that fall. The heads of damage identified in his Statement of Particulars are for non-economic loss, past and future medical expenses and a claim for future domestic assistance.

4. That Statement of Particulars identifies the injuries as consisting of shock, injuries to his right leg, right ankle, right foot, neck, left arm, left shoulder, back and psychological injury. Specific disabilities that were identified included pain, restriction of movement, loss of enjoyment of life and periodic medication.

ISSUES

5. The Council disputes liability and the quantum of damages claimed.

6. The issues identified by the parties are:

1. whether the accident occurred as Mr Abed says it did;

2. whether the Council owed a duty of care to Mr Abed and if so, the nature and scope of that duty;

3. what was (for the purposes of s 5B of the Civil Liability Act 2002 (NSW)) the risk of harm which required the Council to take reasonable precautions;

4. whether the said risk of harm was (a) foreseeable and (b) not insignificant;

5. whether the Council breached its duty of care by failing to take reasonable precautions that a reasonable person in its position would have taken in response to the risk;

6. whether the Council owed a duty of care to warn Mr Abed of an ‘obvious risk’ within the meaning of s 5H of the Civil Liability Act;

7. whether any breach of duty caused Mr Abed the injuries of which he complains;

8. whether Mr Abed was guilty of contributory negligence and, if so, the extent to which this contributed to his injury;

9. the nature and extent of Mr Abed’s injuries; and

10. whether Mr Abed is entitled heads of damage for:

1. non-economic loss;

2. past and future out of pocket expenses; and

3. future domestic assistance,

as a result of any negligence by the Council.

7. I will deal with the liability issues slightly out of order, since the resolution of some of them may potentially (at least partly) dispose of the case.

CIRCUMSTANCES IN WHICH THE ACCIDENT OCCURRED

Mr Abed’s account

8. Mr Abed gave evidence through an interpreter.

9. Mr Abed recalled that the distance between the mosque and his car was less than 100m. After the ceremony, he was asked by brother, Hisham, to join in for coffee in a nearby coffee shop but Mr Abed decided against doing that. Mr Abed was walking in the direction back towards his car at the point where he thought he saw the car of his daughter. He recalled that this car was about 10m away from his own car in the carpark. He changed direction to move towards what he thought was his daughter’s car and passed through a pathway that led onto the carpark. He recalled that the pathway was a short distance beyond a toilet block.

10. Mr Abed recalled that he was walking normally with his son, Nour (who was nine years of age at the time). Asked to describe the fall, Mr Abed said he recalled putting one foot ahead of him at the time, but fell down on an uneven surface. He recalled falling back. He also recalled falling on timber although he could not recall which part of the body fell on the timber. He said he recalled lying on his back and, at the time he said he felt dizzy, felt pain in his right leg, both in his ankle and foot and pain in the back; although the pain in his foot was more painful. He was able to take his socks off and found that his right foot was heavily swollen.

11. In cross-examination, it was suggested that Mr Abed’s evidence that he fell on his back was inconsistent with the report that he had given to Dr Thomson that his left shoulder had fallen on a wooden beam. Mr Abed responded that he did not precisely recall what part of the body hit the ground, but later realized that he may have fallen on his shoulder. As he developed pain in his shoulder, he assumed that he had fallen on his shoulder.

12. He recalled staying on the ground for 15 minutes, at which point his brother, in company with another person (whose first name was Samir), helped him up and were able to take him to his car. His brother drove the car back to Mr Abed’s home, and placed him on his couch; brought Mr Abed salty water and oil; before Mr Abed’s daughter joined them. The daughter ordered an ambulance (at about 8:15pm) and the ambulance took him to Bankstown Hospital.

Nour Abed’s account

13. Nour Abed is the plaintiff’s son. He corroborated, to some degree, his father’s account of what occurred. He said that they were on the way back from the Mosque, travelling in the direction of their car in the car park. They saw what they thought was his sister’s car, and they took a short cut. Nour then remembered his father falling into a hole. He recalled his leg gripped sideways. He was shown a photograph (Exhibit C) which he confirmed was the location of the fall; though he said that it was dark at the time.

14. Nour Abed was not cross-examined on his account.

Hisham Asad’s account

15. Hisham Asad is the plaintiff’s brother. He did not see his brother fall, but he did see him at the place where the fall occurred. He helped the plaintiff get back into the car and drove him home. Thereafter he attended upon his brother until the plaintiff’s daughter got home.

16. Mr Asad prepared a sketch (Exhibit B) indicating the proximity between the Mosque, the coffee shop and the place where he found Mr Abed after the latter’s fall.

Wafaa Abed’s account

17. Wafaa Abed is the plaintiff’s daughter. She also did not see her father’s fall. But she took some photographs of the site where she understood the fall occurred in the same month of the accident and subsequently.

18. The latter photographs established a change in the landscape, with alteration of the garden bed – the place where the plaintiff says he had his fall.

19. Her evidence in this respect was unchallenged.

Submissions

The Plaintiff’s Submissions

20. The plaintiff’s Counsel submitted that the plaintiff was a credible witness. He did not, for example, seek to ‘gild the lily’ when it came to describing the effects of his injuries. He submitted that I should accept his account of how the accident occurred.

The Defendant’s Submissions

21. The defendant submits that the plaintiff’s account of how the accident occurred was such as to engender doubts as to whether he was a credible witness.

Determination

Credit

22. Making allowance for the difficulties in translation, I did not regard the plaintiff to be a very reliable witness. Very often he gave non–responsive answers and, when confronted with matters which seemed to go against him, his answers often amounted to explanations whose object was the advancement of his interests.

23. His recollections of what occurred were poor and, so it seemed to me, amounted, to a significant degree, to a reconstruction based upon his injuries. This caused a problem for him, for example, when an inconsistency was drawn to his attention between giving evidence of attributing a shoulder injury to his fall. This was consistent with what he reported to Dr Thomson about striking his left shoulder on the wooden beam on 5 November 2018. However, the ambulance and hospital records on the day in question contain no reference to any shoulder injury. A similar inconsistency was shown when he was confronted with his evidence in chief of landing on his back, with his evidence to a doctor (Dr Attia) at Bankstown Hospital the next day about falling on his right side.

24. That said, I considered that Mr Abed was an honest witness and, on the essentials, his evidence of taking a fall and injuring his leg was corroborated by the short evidence of his son. His evidence about the lead up to, and aftermath of the fall, concerning his brother, was also substantially corroborated by his brother. To a degree, his evidence of his disabilities after the accident was also corroborated by his daughter. Finally, his evidence about his injuries is supported by the evidence of medical practitioners and experts.

25. In all, I approach his evidence with some caution.

26. Counsel for the Council essentially did not challenge the evidence of other witnesses called for the plaintiff. I accept that each of them were reliable and satisfactory witnesses.

Determination

27. I accept that the accident occurred generally in the terms described by the plaintiff. That is, he (and his son) proceeded through the garden pathway. The garden pathway did not appear to be all that long. A casual glance at the relevant photographs in evidence suggests that it was between 5 and 10 metres in length. This accident occurred probably sometime after 7pm, but at any rate, it occurred in the dark, in winter. What is material is that there was a relatively small elevation at the point (along the Boulevard) where Mr Abed stepped up on the pathway. As he walked in the direction of the carpark for the relatively short distance, his left foot landed in one of a number of potholes (which were the subject of the photograph in Exhibit E). Mr Abed fell. It is uncertain whether he fell on his back, or whether he fell on his right or left side. However, after the fall he ended up lying on his back.

28. Although I have expressed caution about accepting his evidence, in this regard, I accept the plaintiff’s account. To the extent that the Council’s Counsel was able to challenge the plaintiff’s account, it was more directed to how he got to the place of the fall and the mechanics as to how he fell. The former went to background minutiae; the latter was relevant, but relevant more to the injuries sustained as a result of the fall. The plaintiff’s account of how he came to fall (if not in the mechanics of the fall) was broadly corroborated by his son; and to some degree also from his brother, although the latter could only say that he saw the plaintiff lying on the ground. The plaintiff’s account is intrinsically plausible.

LIABILITY ISSUES

Duty of Care

29. As a preliminary point, in his closing address, Counsel for the Council said that the Council admitted that it owed a duty of care, but only in respect to the condition of the garden pathway.

30. He submitted that having regard to the plaintiff’s account of where he fell, being on the carpark itself as he stepped off the garden, the Court should reject the plaintiff’s case in limine, since the plaintiff had not pleaded nor sought to prove that the carpark was under the care, control and management of the defendant.

31. The pleading asserted that the plaintiff fell in a garden which was “within the carpark” – an allegation which the Council admitted. Naturally, I construed that to mean that the Council had the care and control over the place – the carpark – where the fall occurred. But the Council argued that it fell outside the pleading for the plaintiff to say that the accident occurred in the carpark. The Council said that, in its original form, the pleading only said that the fall took place on the garden pathway. The Council relied upon the determination of Basten JA in Council of the City of Sydney vBishop [2019] NSWCA 157 at [8]-[9] to argue that because there was a discrepancy between the plaintiff’s pleaded case where he fell (being the garden path, which was accepted to fall under the Council’s responsibility) and his evidence of where he fell on the carpark (which was not), the plaintiff’s case should be dismissed.

32. In response to this, counsel for Mr Abed applied to amend paragraph 3 of the pleading to assert that the fall occurred in the carpark just beyond the passageway. After seeking instructions, Counsel for the Council accepted that amendment.

33. I granted leave to allow the plaintiff to amend paragraph 3 in that fashion. In my opinion, even without the Council’s consent to it, the amendment was intended to align the pleading with the evidence of the plaintiff. No prejudice (in the requisite sense) was occasioned to the Council in doing so: at the stage of the amendment, there was no factual controversy where the plaintiff fell. There was no alteration in forensic strategy that could have been adopted by the Council if the amendment was permitted.

34. On that basis, the plaintiff’s case at the end of the evidence was that a duty of care was owed by the Council to the plaintiff given that it had the care, control and management of the place (on the carpark, just beyond the garden pathway) where the fall took place.

35. It is well-established that an occupier of premises has a duty to exercise reasonable care so that the premises were safe for pedestrians in the position of the plaintiff[1] . The obligation is to exercise reasonable care to prevent injury to entrants to the premises using reasonable care for their own safety[2] .

    1. Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at [24].

    2. Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45].

36. In my view, following the clarity afforded by the amendment, the Council owed a duty to take reasonable care so that the condition of the carpark just beyond the garden pathway or garden bed was safe for a pedestrian who might step off the garden pathway (providing access to the carpark) onto the carpark.

The risk of harm and whether it was foreseeable and not insignificant

37. The Council submitted that the risk of harm was the risk of personal injury from stepping off the garden pathway. That, it submitted, was not foreseeable, or if it was foreseeable, the risk was ‘not insignificant’. Reference was made to a case of Council of the City of Sydney v Hunter [2014] NSWCA 449 where the Court of Appeal had determined that on the facts in that case there was no breach of duty where a claimant was injured whilst walking along a pathway affected by tree roots which he could easily have avoided.

38. Counsel differed in their suggested formulation of the risk of harm. Counsel for the plaintiff submitted that the risk of harm was a pedestrian walking and stepping onto the potholes, or pit. Counsel for the defendant submitted it was the risk of harm in stepping off the garden pathway.

39. In my opinion, the formulation of the plaintiff is to be preferred. The relevant risk of harm – for the purposes of s 5B(1) – was the risk that a pedestrian walking along the garden pathway in the direction of the carpark might suffer personal injury by tripping on the pothole (or pit) located in the carpark.

40. Counsel for the defendant acknowledged that the standard for assessing whether a risk was foreseeable was undemanding. His submission was that the risk was not foreseeable to a pedestrian entrant to the occupied premises who had taken care.

41. In my view, that elides the assessment of foreseeability (and the related question of the significance of the risk) with the reasonableness of the response to a risk. As will later be discussed, because of the improbability of a risk materializing, which might embrace the improbability of a pedestrian seeing the potholes and taking evasive action, the reasonable response of the defendant might be to do nothing (the conclusion reached in Hunter).

42. In my opinion, the risk that the plaintiff might injure himself by stepping off into the potholes was foreseeable. It was not far-fetched or fanciful. It could occur even on the brightest of days because a pedestrian might, for example, be momentarily distracted. It could occur because someone walking (or running) might not look down, but look ahead. Those hypothetical circumstances might be relevant to issues of causation or contributory negligence, but the possibility that a pedestrian might not exercise reasonable care to eliminate a risk of harm himself or herself does not mean that the risk is no longer foreseeable.

43. Whether it was ‘not insignificant’ was conceptually a different, albeit related question. That risk was, in my opinion, also not insignificant. There is any number of reasons, including, but not limited to, a pedestrian not fully taking care, why he or she might have fallen into the pothole.

44. Before I move on to address the reasonableness of the Council’s response to the risk of harm, with reference to ss 5B((2) and 5C, I will address the Council’s special defence under the provisions of Part 1A, Div 4 of the Civil Liability Act (noting that no defence is pleaded under s 5I and no reliance was placed upon the provisions in Part 5) since, if the defence is made out, it would provide an answer to any claim of negligence centred upon the contention that the Council failed to warn the plaintiff.

WAS THE RISK OF HARM AN ‘OBVIOUS RISK’?

45. Section 5H, when read with ss 5F and 5G, essentially provides what, under the common law, would have been regarded as a modified defence of voluntary assumption of risk. The main substantive provision is in s 5H, which excludes a duty to warn of an ‘obvious risk’.

46. In Wyong Shire Council v Vairy [2004] NSWCA 247, Tobias JA (with whom Mason P agreed) at [161]-[162] construed an ‘obvious’ risk by reference to the definition for ‘obvious’ found in the Second Restatement as meaning:

“…both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of (the plaintiff), exercising ordinary perception, intelligence and judgement”[3]

3. Followed in Collins v Clarence Valley Council [2015] NSWCA 263 per McColl JA at [138].

47. Although the test is objective, the reference in the provision is the risk that would have been obvious in the circumstances in which the harm occurred – that is, the circumstances in which the plaintiff suffered the relevant harm[4] . That includes the plaintiff’s knowledge and experience of the relevant area and conditions. It is what a reasonable person in the plaintiff’s position might regard as ‘obvious’. Further, particular characteristics of a plaintiff, such as his or her age or experience, may be taken into account[5] .

    4. Fallas v Mourlas (2006) 65 NSWLR 418 at [98]; followed in Jaber v Rockdale City Council [2008] NSWCA 98 per Tobias JA at [35]-[36]; Council of the City of Sydney v Bishop [2019] NSWCA 157 at [53].

    5. Carey v Lake Macquarie City Council (2007) Aust Torts Rep 81-874 at [97].

48. In cross-examination, Mr Abed admitted that he had been to this carpark before, however he said that he had never walked through this particular garden pathway before. He admitted that he was aware that there was a drop in the level from the garden bed to the level of the carpark where the pit was located. Having stepped up on the garden pathway, he realized at some point he would have to step off it to get to the carpark and that, in doing so, he would have to exercise some care.

49. Mr Abed did not say, however, that he was aware that there was a pothole or pit located at the point of the drop. It was squarely put to him that the pit was not obscured, to which, Mr Abed responded that he did not see it.

50. The risk of harm did not arise from a pedestrian not taking care for himself in allowing for a drop in the surface level from the garden pathway onto the surface of the carpark. The risk of harm, in this context, was the risk of falling onto a pothole or pit.

51. The authorities recognise that persons may ordinarily be expected to exercise sufficient care by looking where they are going and avoiding obvious hazards, however, a danger may not be perceived because of inadequate lighting[6] . Where, for example, there are shadows over a footpath which obscure a differential in surface level, it might mean that the differential in the surface level might not be observable to a person exercising reasonable care for their own safety[7] . Where, for example, surfaces on bitumen are uneven, the discrepancy may not be apparent where the bitumen is of the same colour.

    6. Brodie v Singleton SC (2001) 206 CLR 512 per Gaudron, McHugh and Gummow JJ at [163]; Council of the City of Sydney v Bishop, per Macfarlan JA at [18]; Brereton JA (in dissent) at [67].

    7. Angel v Hawkesbury City Council (2008) Aust Torts Rep 81-955.

52. Although Mr Abed said that the light was dim, his son recalled that it was dark. He could not see the pit. Mr Abed’s brother, Hisham, recalls that he spoke with his brother on the telephone between 7 and 7:30pm at night. That appears consistent with the likely time of the fall, given that the ambulance was first called at about 8:15pm. At that time of the year, in the absence of demonstrable lightning, in my view, in the absence of any or any adequate lighting, it would have likely been very dark, if not actually pitch black, when the plaintiff walked along the garden bed towards the carpark.

53. The Council would have been aware that the footpath was a possible means of pedestrian access to the carpark. As Counsel for Mr Abed submitted, this area was likely to have been frequented by pedestrians with regularity because of the proximity to the carpark (which itself adjoined to a railway station), a toilet block, as well as to nearby shops and the mosque.

54. There was no evidence that the plaintiff was a regular user of this particular pathway to the car park. He said that this was the first time he had used it. At the time that he fell, at night-time in the dark, the potholes were not clearly apparent, easily recognisable to a reasonable person in Mr Abed’s position. The location of the potholes were not so obvious from the occupier’s perspective that it could confidently predict, regardless of the circumstances (during the daytime or at night-time) a pedestrian walking across the garden pathway and onto the car park would become aware of, or advert to its presence.

55. Even if the plaintiff had exercised the care that the Council submits he should have – by looking down at the point where the garden pathway dropped to the carpark, it is not ‘obvious’ that the pit would have been seen even if the plaintiff had looked down at the point he stepped off the garden bed.

56. I reject the Council’s defence under Part 1A, Div 4. Even if it had applied, the defence would not afford a complete answer to the plaintiff’s claim. In C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136, Santow JA said (at [102]) that liability in negligence is not conterminous with situations calling for warnings: a warning may be insufficient to discharge the duty of care or even irrelevant to its discharge, depending upon the circumstances. The effect of the provisions in ss 5F and 5G is that they may obviate a common law duty to warn, but they do not otherwise affect the question of whether there has been a breach of duty[8] .

    8. Angel v Hawkesbury City Council [2008] Aust Torts Re 81-955 at [83].

WAS THE COUNCIL IN BREACH OF ANY DUTY OF CARE?

57. I now return to the essential question of liability of whether, having regard to the foreseeable and not insignificant risk of the plaintiff suffering injury by falling on to the pothole, the Council’s response to that risk was unreasonable.

58. This question is undertaken by reference to the considerations in ss 5B(2) and 5C of the Civil Liability Act. However, by way of general observation, in Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103, Leeming JA (at [11]) generally observed that in cases of occupier’s liability of this kind (citations omitted):

“in assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier position is entitled to take into account ‘with due allowance for human nature, (that) a person he permits to be on his premises will use reasonable care for his own safety’. The weight to be given to that expectation is in each case the matter for factual judgement... and the matters to be considered include the obviousness of (the) risk, and the remoteness of the likelihood that other people fail to observe and avoid it”

59. On this question, Counsel for the plaintiff referred me to certain photographs of the place of the fall that were taken both before and after the accident in question. Specifically, a photograph taken of the location in June 2016 indicated that access to the point where the plaintiff (and his son) had exited the garden pathway had been blocked off because of continuous timber railing extending up, almost fully to the toilet block (Exhibit A, 5th photograph in the sequence). But by September 2017, part of that railing had been removed, enabling access to those pedestrians wishing to head towards the car park (Exhibit A, 4th photograph in the sequence). This suggests that, for reasons not explained, Council was aware of – if not encouraged – pedestrians to use this garden pathway to get to the carpark.

60. Counsel for the plaintiff referred to photographs (Exhibits C & E) which showed the potholes in the carpark, being the relevant exit point from the garden pathway. These potholes, he submitted, constituted a foreseeable and not insignificant risk of harm to pedestrians walking on to the carpark area.

61. A photograph taken in December 2018 (Exhibit A, 2nd paragraph in the sequence; and Exhibit G) showed that the potholes had been filled. It still remained possible for pedestrians to use the garden pathway to access the carpark: the timber railing that was apparent as at June 2016 at this point had not been restored.

62. However, by 2019, the timber railing had been extended at the point where the plaintiff had exited the garden pathway (Exhibits D & F).

63. From this evidence, Counsel for the plaintiff submitted that a reasonable response to the foreseeable and not insignificant risk of harm to the plaintiff was to (a) fill in the potholes and/or (b) to restore the timber railing that had been taken out (from or after June 2016) to block entry onto the carpark from the garden pathway. The circumstance that these measures were undertaken after the accident was submitted to be evidence of the reasonable precautions that the Council could have undertaken before the plaintiff’s accident, if it thought it necessary to do so.

64. But that begs the question of whether, in accordance with the considerations in ss 5B(2)(a)-(d) and 5C, there was an unreasonable failure by the Council not to take those precautions before the accident. As s 5C(c) makes clear, the taking of these precautions, by itself, does not amount to an admission of liability in relation to the risk. Counsel for the defendant submitted that it is not sufficient for a plaintiff to show that there were available precautions available to address the risk of harm, but a reasonable person in the Council’s position would have taken them. The plaintiff carried the onus of proving this[9] .

    9. Bunnings Group Ltd v Giudice [2018] NSWCA 144 per Leeming JA at [34].

65. Council submitted that no serious attempt was made by the plaintiff to establish the matters in s 5B(2). No expert evidence was called, for example, on how a reasonable Council might respond, or what the remedial work might cost.

66. Although it is true that the plaintiff carries the ultimate burden of proof in relation to the matters in s 5B, I note that the considerations are matters which, it would be expected, would be peculiarly known by the Council. Accordingly, it might be said that so long as some evidence is tendered from which matters may be inferred, the Council may carry an evidential (or ‘tactical’) burden to advance in evidence which (if relevant) the plaintiff would have to deal with in the discharge of its legal burden of proof[10] .

    10. Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561; also Blatch v Archer (1774) 98 ER 969.

67. By the proximity of the garden pathway to a toilet block and shops, in my view, there was a high probability, first, that the garden pathway would be utilised, and especially by pedestrians seeking access to the carpark. Indeed, as I have indicated, it appears from the photographs I have referred to that such pedestrian access was facilitated, if not encouraged. It may be seen from the photographic evidence that the garden pathway was surrounded by trees, some larger than others. The photographs in Exhibit A (especially the 2nd in the sequence) show that, even in daylight, depending upon the location of the sun, the area of the garden pathway was shaded.

68. There was a telegraph pole along the Boulevard, which was the street which the plaintiff crossed onto to get to the entry point to the garden pathway (see, for example Exhibit 4), but there were no photographs which would indicate the reach of the lighting towards the garden pathway at night. Because of the location of the toilet block, I think it is more likely than not that the exit point of the pathway, where the plaintiff fell, was likely to be very poorly lit, if it was lit at all. This is the exit point of a pathway which the Council knew (if not encouraged) would be frequented by pedestrians.

69. In my opinion, in the absence of any lighting, the probability that a pedestrian in the plaintiff’s position, walking along the garden path and stepping off it on to the car park at night time in mid-June, might not see the potholes is very high. Perhaps the degree of probability might be affected by a pedestrian consciously looking down off the step, but even in that event, in my opinion, there was a very strong possibility that even the most attentive pedestrian might not see them. In other words, on the basis of the evidence before the Court, the probability of harm occurring if the Council did not take care appeared to be high.

70. There was no evidence before me adduced on the Council’s behalf to suggest any regular inspections of the car park and the place where the fall occurred, or reports of trips or falls on the surface, or complaints about the condition of that surface. Evidence about the absence of any earlier falls or complaints about the potholes, in night time, during winter, is relevant to assessing the risk of harm[11] . It was in the interests of and within the capacity of the Council to lead such evidence, but it chose not to. So too, it was in the interests of and within the capacity of the Council to lead evidence as to the state of the lighting within the carpark at night-time, during winter, in the vicinity of the pathway where the fell occurred.

    11. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309.

71. Counsel for the defendant said that there was no evidence that the Council had any control over lighting. This, he submitted, was a matter for proof by the plaintiff. But in my view, in circumstances where sufficient evidence was furnished about the natural state of lighting of this area at various points in the day, the Council could have elected, if it so chose, to put on such evidence. In my view, the Council’s omissions to put on any evidence on these matters may be weighed when assessing the risk and probability of harm under s 5B.

72. In my view, it is no answer (in relation to both the considerations under s 5B(2)(a) and the defence based upon 5F) to say that, under the most propitious circumstances, for example of broad daylight, a reasonable pedestrian might not fail to notice the hazard. ‘Obviousness’ and the probability of the occurrence of the risk have to be gauged in the circumstances faced by the plaintiff. Those external circumstances were no or little lighting.

73. As to the consideration in s 5B(2)(a), in my opinion, conceivably a person who stepped on the pothole(s), not knowing that they were there was very likely to fall, which made it highly probable that harm would be suffered if the Council did not take care. The consequences of a fall were unpredictable – they might depend upon the speed with which a particular plaintiff might be able to respond in response to the loss of footing. But for a reasonable person in the position of this plaintiff, in his mid-50s and with previous injuries to neck and back, the reaction speed may be slower. That might mean that the harm might be very serious: it was a matter for chance whether the victim might fall on his or her back or perhaps even the head. In my view, there was a significant risk of injury to a reasonable person in the plaintiff’s position falling after stepping on the pothole.

74. As to the consideration of the burden of taking the precaution(s) (s 5B(2)(c)), there was no evidence put before me as to how much it cost to refill the pothole, or extending the timber railing to impede access, being the precautions that were subsequently undertaken. Set against the probability of the harm and the likely seriousness of the harm, I do not infer that the precautions that were ultimately taken were relatively burdensome.

75. The aspect of social utility (s 5B(2)(d)) is not material here. There may have been social utility in the Court permitting the garden pathway to be used as an access point to the carpark. But this only underscored the need to ensure that reasonable steps were taken to allow for that pathway to be safely used by pedestrians.

76. As to the matters referred to in s 5C, I do not understand that the Council raised any contention that undertaking reasonable precautions to deal with the risk of harm in question might have been unreasonable because of a need to deal with similar risks of harm elsewhere (s 5C(a)). Nor is this a case where it could be said that the Council deliberated as to different ways in which the risk could have been prevented (s 5C(b)).

77. Weighing the matters in s 5B in the balance, and having regard to the availability of precautions (subsequently undertaken) which have not been suggested were unduly burdensome to take before the accident occurred, in my opinion, it was negligent for the Council to fail to take those precautions in response to the foreseeable and not insignificant risk of harm that a reasonable person in the plaintiff’s position and circumstances would have taken when stepping off the garden pathway onto the potholes in the carpark.

DAMAGES CLAIM

Causation

78. By ss 5D and 5E of the Civil Liability Act, the plaintiff carries the onus of proving the two requirements of causation: first, factual causation (s 5D(1)(a)) and secondly, the scope of liability requirement (s 5D(1)(b)).

79. Counsel for the Council submitted that even if I was to find negligence, the true cause of any personal injury sustained by Mr Abed was his own failure to look where he was going. It was his own conduct which caused the accident (and subsequent injury).

80. ‘Factual causation’ connotes that the defendant’s negligence was a necessary condition of the occurrence of the harm. It does not, by its terms, speak of other conditions which may have, independently or jointly with the defendant’s negligence, contributed to the occurrence of harm. It is, as the High Court said in Wallace v Kam (2013) 250 CLR 375, simply the application of the ‘but for’ test. In my view, but for the negligent failure of the Council to take reasonable precautions to prevent the risk of harm, Mr Abed would not have fallen after stepping into the pothole(s) on the carpark.

81. The scope of liability requirement requires the application of a normative assessment. Prima facie, it seems to me that the Council’s point may have more traction under this requirement than that of factual causation.

82. In my opinion, once it is accepted, as I find, that the Council owed a duty to take reasonable precautions to deal with the risk of harm of a pedestrian injuring himself by stepping onto a pothole, it falls within the scope of its liability for it to be responsible for the foreseeable harm suffered by the pedestrian from the failure to take those precautions. In this case, the precautions were to impede access to the pothole or filling in the pothole. If those precautions had been undertaken, the plaintiff would not have been in a position to step onto the pothole and suffer the foreseeable consequences of falling and injuring himself, even if he had been looking at the ground.

83. I am satisfied that the causal connection between the defendant’s negligence and the plaintiff’s personal injury is established.

What were the injuries and disabilities suffered?

Pre-existing medical history

84. Mr Abed had been involved in two previous motor vehicle accidents, in 2000 and 2012. It 2006 he was also attacked and robbed whilst working as a convenience store attendant.

85. Several medical reports arising from the 2012 accident were in evidence. The reports indicated that he had suffered a head injury (including dizziness and headaches), symptoms of PTSD, as well as injuries to his neck and lower back; as well injuries in both of his knees. There was no reference to any injury to the plaintiff’s shoulder.

84. When asked to explain the circumstances in which he obtained the disability pension, Mr Abed said that it was due to his back injury and his ongoing inability to do labouring work.

The plaintiff’s account

87. Mr Abed recalled that when he went to Bankstown hospital on the same evening after the accident, he was given an x-ray which revealed a fracture. His right foot was placed in a moon boot and he was given two crutches. He said that not long after receiving the crutches to he started to feel pain in his left shoulder when using the crutch and stopped using the crutch on his left hand side.

88. After returning from the hospital, four or five hours later, he was being helped by his relatives when he felt pain and was very tired, and he said his left shoulder felt worse.

89. He recalled being referred to an orthopaedic surgeon, Dr Todd Gothelf, who examined him and arranged for MRI scans to be conducted in his right foot and left shoulder. He recalled receiving advice to receive surgery for his foot and shoulder. He said he did not have the surgery because he had no money. He also recalled Dr Selim a general practitioner, remarking that shoulder surgery was risky. He was put off by that.

90. He continued to see doctors, usually Dr Selim, but also other practitioners, such as Dr Sari, who provided chiropractic services; particularly in relation to his left shoulder.

91. He describes ongoing treatment consisting of taking Voltaren tablets and paracetamol, however because of some problems that were not associated with the event subject of this proceeding, he limits his use of those.

92. He says he feels pain on a daily basis. He takes medication periodically – sometimes daily and sometimes not at all. He says that he feels a lot of stress, when he is not tired.

Wafaa Abed’s account

93. Ms Abed is a student, and at the time she gave evidence has been busy studying a number of degrees.

94. Over the objection from Counsel for the Council, Ms Abed gave evidence comparing the plaintiff’s physical capacity before and after the subject accident, by reference to activities he was capable of undertaking in the family home.

95. She said that before the accident, she had observed him doing household tasks such as vacuuming, gardening, moving furniture about, lawn-mowing and taking children to the park. After the accident in June 2018, she said he was still capable of taking children to the park but did not do as much around the family home as he did prior to the accident. She observed that since that accident, her father appeared angry and depressed. This, in turn, upset her and the rest of the family.

96. Under cross-examination, she indicated that she was aware that her father had had a back injury prior to the incident in June 2018 and that this had restricted him. When it was suggested that there was very little change in what he could do before and after June 2018, she noted that she saw him mainly in the afternoons and on the weekends.

Ambulance record & hospital notes.

97. The ambulance record noted that the ambulance appeared to be contacted at 8:14pm on the evening of 13 June 2018.

98. In respect to the injuries, the notes recorded swelling of Mr Abed’s right ankle, foot and hip following a reported fall.

99. Records from Bankstown Hospital indicate Mr Abed’s admission on the date of the accident and discharge the next day. The hospital records also emphasised the injury to the right ankle. An x-ray of the ankle and foot showed a fracture and swelling and Mr Abed was supplied with a moon boot and crutches.

Dr Selim

100. The plaintiff consulted with Dr A Selim the morning after the incident. The hospital notes recorded that reference was made to the plaintiff’s right foot and Dr Selim discussed counselling with Mr Abed. There was no reference to any discussion about his left shoulder.

101. Dr Selim’s more recent notes indicate consultations with Mr Abed regarding his left shoulder pain in September 2019, January and February 2020.

The Plaintiff’s Medical Evidence

Medical Reports of Dr Gothelf

102. Dr Gothelf is an orthopaedic surgeon specialising in foot, ankle and shoulder surgery. He prepared three reports served on Mr Abed’s behalf.

103. In his first report of 3 August 2018, Dr Gothelf noted that Mr Abed had reported to him immediate pain in his right foot (and his wearing of a boot for one month) and pain in his left shoulder.

104. Dr Gothelf found on examination of Mr Abed, about two months after the accident, that Mr Abed’s feet had normal alignment; but there was tenderness of the right foot over the ankle joint. There were positive signs of impingement on his left shoulder and stress testing revealed weakness in his external rotation. He diagnosed a left shoulder possible rotator cuff tear and right foot fifth metatarsal avulsion fracture. This produced persistent left shoulder pain and persistent right ankle pain.

105. In his second report dated 17 August 2018, Dr Gothelf referred to his follow-up examination of Mr Abed in relation to his shoulder injury. He examined the left shoulder for thickness rotator cuff tear. He explained to Mr Abed is treatment options for the rotator cuff tear, consisting of injections and physiotherapy. However, without surgery, the tear would always be present allowing the muscles to atrophy. He therefore recommended surgery in the nature of an arthroscopic rotator cuff repair in order to help prevent long-term problems with the rotator cuff. He confirmed that Mr Abed had a right 5th metatarsal fracture and right ankle talar dome lesion. The fracture should heal, but the lesion could cause long-term pain and so he recommended an arthroscopic procedure for ongoing pain in the ankle. Dr Gothelf said he explained the risks of both forms of surgical procedure to Mr Abed. He noted that Mr Abed indicated his willingness to try physiotherapy for his ailments to that point.

106. In his most recent report of 21 October 2019, Dr Gothelf reported on Mr Abed’s follow-up examination on his left shoulder cuff tear. On examination, the left shoulder had a good range of motion, positive impingement signs and weakness and external rotation and abduction. The right ankle was tender in the gutters of the ankle joint. He essentially reiterated the forms of surgical procedure that he had discussed with Mr Abed in August 2018, including discussion of the risks and possible complications to the surgical procedures. He recommended that the right ankle procedure had greater priority.

107. Dr Gothelf was not required for cross-examination. I accept his evidence regarding the plaintiff’s injuries.

Dr Thomson’s opinion

108. Dr Ron Thomson is a medicolegal consultant surgeon who prepared a report, for the purpose of this proceeding, following an examination of Mr Abed on 5 November 2018. This was about 5 months after Mr Abed’s fall. His diagnoses were relevantly similar to those of Dr Gothelf concerning Mr Abed’s injuries to his left shoulder and right ankle. His prognosis was currently not good.

109. Dr Thomson was not cross-examined. I accept his evidence.

Dr Sari’s opinion

110. Dr Tarek Sari is a chiropractor practising under the title ‘The Back Specialist’. Dr Sari provided a report dated 1 October 2019. Dr Sari reported upon consultations with Mr Abed from August to October 2018 and July to September 2019. Dr Sari’s goals were to wean Mr Abed out of his brace and prescribe strengthening exercises to his ankle. Dr Sari instructed Mr Abed to see an orthopaedic surgeon for an arthroscopic procedure for the ankle injury. Although Dr Sari also tried to assist with the left shoulder, due to the pain complained of by Mr Abed, Dr Sari advised that he returned to his surgeon and receive an arthroscope to repair the shoulder injury.

111. Dr Sari was not cross-examined.

The Council’s Medical Evidence

112. The Council relied upon a report of Dr Stephen, an orthopaedic surgeon. He relevantly accepted that Mr Abed suffered an injury to his right foot. He accepted, also, that Mr Abed had an injury to his right shoulder, but he expressed doubts as to whether this was caused by the accident – he thought that the tear in the tendon of the supraspinatus was longstanding and degenerative.

113. Council relied upon this evidence to submit that, although it accepted that the right foot injury was caused by negligence (if that finding was made), the Court would not accept that the injured shoulder was caused by Mr Abed’s fall.

Determination

114. There was no dispute that the plaintiff had suffered an injury to his right foot as a result of his fall. Although the records on and after 13 June 2018 do not refer to shoulder pain, I am satisfied that on the balance of probabilities, the plaintiff’s should injury was caused, if not contributed to, by his fall.

115. The hospital notes including a record of Dr Selim referring to a consultation with Mr Abed on 11 July 2018 for left shoulder pain and a tear. Indeed, a request was made for an x-ray of the plaintiff’s shoulder on 27 June 2018. An ultrasound of Mr Abed’s left shoulder was taken on 9 July 2018 when a tear within the posterior third fibres of supraspinatus tendon was observed.

116. It does not appear that Dr Stephen took this evidence into account. His opinion as to the causal attribution of shoulder injury to the fall appeared to be based upon his assessment of Mr Abed’s credibility, centred upon matters which he assumed adversely to the plaintiff. Although no objection was taken to it, in my view this aspect of Dr Stephen’s opinion verged almost upon the inadmissible, since it was not based upon specialised knowledge. Be that as it may, for reasons indicated, Dr Stephen may have been incorrect to say that there was an absence of reference to the shoulder complaint in the general practitioner notes if, by that, he was referring to notes within the first three weeks since the accident.

117. Dr Gothelf identified the shoulder injury as having been reported to him within 2 months of his first examination.

118. A left shoulder CT Arthrogram and left shoulder MR Arthrogram was undertaken on 13 August 2018.

119. There were no indications of a shoulder concern from Mr Abed’s medical history prior to this accident. This pre-accident medical history, especially that which was referable to a motor vehicle accident he was involved in on 4 September 2012 indicated head injury (with symptoms of dizziness and headaches), neck injury and lower back injury with problems in his knees and symptoms of PTSD.

120. There was no explanation advanced on the Council’s behalf that in the intervening period from the accident, the tear to the plaintiff’s left shoulder developed from any other source or cause. Certainly no suggestion was put to Mr Abed that the shoulder injury was caused by factors other than the subject accident.

121. I find, on the balance of probabilities, that as a result of the accident on 13 June 2018, the plaintiff sustained injuries to his right foot and left shoulder.

122. The disabilities arising from those injuries endure. For example, in Court Mr Abed walked with a pronounced limp. This had not existed prior to this accident. I am satisfied that the shoulder injury impedes him in certain day-to-day domestic activities, which generates its own stresses and sense of helplessness.

Quantum

Non-economic loss

123. When asked by his Counsel how his injuries affected his daily living, Mr Abed answered by reference to the things that he could no longer do or no longer do as well as after the accident. This was essentially domesticated duties such as vacuuming, ironing and gardening. In relation to leisure, he said he could no longer walk in the park. Generally, he said that he was not happy – he felt tired and stressed and concerned about his relationships with other family members. He instanced some family arguments. Asked whether there was a change in his relationship with friends, Mr Abed thought this there was: he did not socialise very often because he did not feel that he was a joy to be with.

124. In relation to the physical restrictions, he can carry small weights in his right hand but not in his left hand.

125. Mr Abed submits that he is at a level of 28% of a most extreme case and seeks recovery for this head of damage at the sum of $92,000.

126. The Council submits that the Court would not find that he has reached the 15% threshold of a most extreme case.

127. At the time of the accident, he lived a quiet and modest life which appeared to centre around close relationships with his family. That quiet life was contributed to by the misfortune of earlier accidents that had caused him personal injuries as well as the ordeal of experiencing a robbery, which curtailed his working career. The earlier accidents did impose some restrictions on what he could do due to his back injury. I consider that the accident on 13 June 2018 exacerbated that physical incapacity.

128. Mr Abed was on a disability pension. This financial circumstance and the natural tendency of Mr Abed to try to tolerate the pain, in respect to which he periodically takes painkillers, contributes to a general sense of moroseness that has diminished, to some degree, his relationships with his family. I consider that there is a sense of helplessness in his general attitude towards life.

129. In my assessment, the plaintiff has suffered non-economic loss at the level of 21% of a most extreme case. That yields a sum of $26,320.

Past out of pocket expenses

130. The parties agree that, as a matter of arithmetic, the plaintiff’s past out of pocket expenses are $5,426.50.

131. The Council referred to the plaintiff’s pre-existing injuries – especially those related to his 2012 motor vehicle accident – and submitted that the plaintiff did not identify whether the past of out of pocket expenses, insofar as they relate to his taking of medication, was attributed to by this accident or the earlier accidents.

132. The plaintiff gave evidence about his taking the medications after the accident. He did not do so in any exaggerated way and the medications he described were appropriate to the personal injuries he sustained, which were caused by the defendant’s negligence. In my view, it was up to the Council, if it wanted to, to disentangle those expenses associated with its negligence and those associated with an accident which, as at June 2018, had apparently occurred 6 years before.

133. I allow the plaintiff the sum of $5,426.50

Future out of pocket expenses

134. The plaintiff’s claim in relation to this head of damage was $50,000.

135. The plaintiff relied upon the evidence from Dr Gothelf being two estimate of fees. The first was for elective shoulder surgery dated 2 December 2019. The estimate was for $2,202.60. The second was for an arthroscopy for the plaintiff’s right ankle, which was an estimate in the sum of $1,483.70.The estimated hospital fees were in the order of $10,204.00. The plaintiff submitted that the total cost of the two forms of elective surgery was $17,275.

136. The balance of the claim under this head was said to be a buffer for on-going expenses. This included the necessary medications for pain-relief, post-surgical rehabilitation. There was no guarantee that the surgical treatment would be successful. Given that the plaintiff is now 54, his life expectancy is such that, so it is submitted, the buffer placed on top of the surgical procedures, is modest.

137. Counsel for the Council submitted that there was some ambivalence in the evidence from Mr Abed as to his willingness to undertake these procedures. In his evidence in chief he thought he might need the surgical procedures and indicated that if he had the financial means to do so, he would have surgery. Under cross-examination, he said he had not made up his mind. He understood that the risks of surgery to the left shoulder were riskier than surgery for his foot.

138. In my opinion, the main impediment to his not having these procedures to date is that, as a disability pensioner, he cannot afford them. If he had the means, I expect that he would be likely to overcome his reservation about the risk of undertaking surgery on his shoulder. I agree with the submission of Counsel for the plaintiff that repair of a shoulder tear is not something that can be ignored indefinitely; not only because of the pain but also because of the significant physical restrictions imposed on a person. In my view, it is more likely than not that if he had that capacity, he would take the risk and undertake the procedures. I accept, also, that with the surgical treatment comes additional expenses for rehabilitation, and there is a need for medication lest the surgery fail to be successful. That, however, should be factored into the Court’s consideration of the requirement for domestic assistance.

139. I would allow the sum of $45,000 for this head of damage.

Future domestic assistance

140. There was no dispute that this claim, in the way it was put, is not subject to the restrictions under Part 2 of the Civil Liability Act. As the Council submitted, however, the plaintiff had to establish the need for domestic assistance: Smith v Alone [2017] NSWCA 287.

141. The evidence for the plaintiff on this claim was not strong. He accepted that following the back injury – which he said was the reason for his receipt of his disability pension – he sustained in 2012, there were restrictions upon his capacity to help around the family home; although it did not totally incapacitate him. He said that his capacity to do work after this particular accident was “made worse”, but in what way, he did not say.

142. In his report, Dr Thomson recorded Mr Abed’s report to him that he had been receiving domestic assistance from the date of the injury to date and that this continued to be provided by the wife and four children. Although he thought the requirement would continue for the future, Dr Thomson was vague in his attempt to specify how long and for what periods assistance would be required.

143. Mr Abed’s daughter gave some evidence about her father’s capacity to provide domestic assistance, but it was not very satisfactory. Accepting her evidence as to restrictions upon domestic chores, it was not clear to me the extent to which they were resultant from this particular accident or the plaintiff’s back complaint. Further, her observation was limited to what she saw in afternoons and weekends, when she was not studying.

144. What was missing from the plaintiff’s case was evidence from the person, or persons who were, in effect, picking up the slack of domestic duties as a result of the plaintiff’s incapacity allegedly from this accident. The Court does not know who that person or persons are.

145. As indicated, the plaintiff is entitled to receive an award for the future expenses associated with treatment of his injuries. Upon the assumption that I have made – that he is likely to undertake the surgery – it is reasonable to assume that if he does, the surgery would have reasonable prospects of success. If it does, then the incapacitating effects of injuries to his right foot and left shoulder are likely to substantially abate and the plaintiff will feel less impeded in his capacity to assist around the home. If the surgical treatment does not succeed, then I have factored into, as the buffer, an additional amount for further treatment in the award for future medical expenses.

146. To allow for an additional sum for this head of damage would, in my view, amount to double counting. Accordingly, in the circumstances I make no allowance for it.

Summary

147. Collating the awards in respect to each head of damage shows the following:

Non-economic loss:                     $26,320.00

Past out of pocket expenses:      $5,426.50

Future out of pocket expenses:   $45,000.00

148. Subject to the contributory negligence defence, this yields a total sum of $76,746.50.

Contributory negligence

149. Mr Abed accepted in cross-examination that at the point when he was stepping down from the garden pathway, he was not looking down, but looking straight ahead. He also admitted that had he seen the pit or potholes, he could have avoided stepping into it, by moving either to the left or right of it. He could also have walked back and approached the carpark from a different entry point.

149. Counsel for the Council submitted that there ought to be a 100% reduction for contributory negligence (per s 5S of the Civil Liability Act). This was because the plaintiff did not look to the ground as he was exiting the garden pathway just before he fell. Had he done so, it was likely he would have seen the pothole(s) and taken steps to avoid it.

150. Counsel for the plaintiff submitted that no reduction should be made for contributory negligence. He submitted that the plaintiff was walking normally, in the dark and a reasonable person in the plaintiff’s position would have no reason to expect, assume or believe that in stepping off the garden path, s/he would step into a pothole. Further, he submits that even if the plaintiff did look down at the operative moment, that is, just before he stepped off the garden pathway, there is no proof that he would have known that there was any pothole or potholes that he would step into.

Determination

152. Sections 5R and 5S modify the common law of contributory negligence – they do not themselves create any particular rights or defences[12] .

     12. ACQ Pty Ltd v Cook (2008) 72 NSWLR 318 at [158].

153. The defence of contributory negligence at common law requires a defendant to prove that any want of reasonable care by a plaintiff for his or her person or property was partly responsible for the plaintiff’s loss or damage. That is a causation inquiry just as much as it is an inquiry into the reasonableness of the plaintiff’s conduct.

154. I am not persuaded that the Council has established that any contributory negligence by Mr Abed caused him to suffer loss or damage. The causation inquiry here is the same as it would be in assessing the causative impact of the Council’s negligence. The primary question is whether, but for Mr Abed’s failure to look down, he would not have suffered personal injury.

155. To make that allegation out, however, requires the Council to prove that a reasonable person in Mr Abed’s position would have seen the potholes had that person looked down when stepping off.

156. As I have indicated, I find that at the time of the fall, in a winter evening, it was dark. At that time of the evening, the potholes would likely to have been indistinguishable in colour from the rest of the surface of the carpark. I am not satisfied that a reasonable person in Mr Abed’s position and circumstances who glanced down when stepping off the garden pathway would have seen the pothole.

157. Accordingly, the contributory defence fails. If I am wrong, however, I now consider whether and to what extent, Mr Abed failed to exercise reasonable care for his own protection.

158. The principles applicable to any reduction for an award of damages for contributory negligence under s 5R(1) are relevantly the same as those which apply to determining whether a defendant is negligent. These are in ss 5B and 5C, although, as Beazley P (as her Excellency then was) said in Grills v Leighton Contractors Pty Ltd (2015) NSWCA 72 at [173] that s 5R does not mandate that the considerations in s 5B(2) are to be treated as a checklist. The legislation clarifies that the standard is objective (s 5R(2)(a)) and is not to be applied in hindsight (s 5R(2)(b)).

159. In Council of the City of Greater Taree v Wells [2010] NSWCA 147, Basten JA at [107]-[108] made some observations, when comparing the application of the standard of reasonable care applicable to defendant and plaintiff, which have some particular salience to this case. That case, to some degree like this one, concerned an accident in a park. His Honour said that when focus is directed to the plaintiff, one had to consider how a reasonable person would act with the “knowledge, understanding and actions” of the plaintiff shortly prior to the accident.

160. In this case, the plaintiff did not know that there was a pothole at the end of the garden pathway leading onto the carpark. He had not walked on that pathway previously. It was dark. A reasonable person in his position did know that although it was one pathway to the carpark, it would have to be traversed by walking along what appeared to be bark – the pathway was not cemented (for example). A reasonable person in his position would also have appreciated that there was some elevation, in starting upon the garden pathway as well as in exiting it. I do not consider that a reasonable person would have anticipated, or expected that a pothole, or potholes might be on the carpark just as the person would have stepped off the garden path, but I do consider that in the circumstances, a reasonable person in the plaintiff’s position, exercising reasonable care, would have watched his or her step as s/he stepped off the garden path. For practical purposes, that meant looking down. If there was no pothole, then the surface may have been not level, or unstable for other reasons. It was not a burden for the reasonable person to have looked down.

161. In my view, the circumstance that the plaintiff points to that it would not have made any difference is a powerful argument in reducing the causative impact of contributory negligence, in comparison to the defendant’s negligence, but it presents no answer to the contention that the plaintiff did, in fact, fail to exercise reasonable care for his interests.

162. In assessing the appropriate level of contribution, I am mindful of the well-established considerations of culpability and causal responsibility.

163. In my view, there is a large difference in both respects, which is adverse to the Council. It had the duty and the capacity to prevent the harm from occurring and part of that duty involved dealing with a problem which could present serious risk even to the most reasonable of reasonable persons walking along the garden path at that time of night. In terms of causative impact, as I have intimated, there is real doubt in my mind whether, even assuming he did look down the plaintiff would have seen the pothole or potholes in the circumstances he was faced with.

164. If I had found that the causation element for the defence was made out, I would have reduced the award of damages by 10% ($7,674.65) on account of contributory negligence.

ORDERS

165. I make the following orders:

1. Judgment for the plaintiff for the sum of $76,476.50.

2. The defendant is to pay the plaintiff’s costs.

3. Liberty to apply is granted to apply for a variation of the costs order within 14 days.

4. Exhibits are to be returned within 28 days.

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Endnotes

Decision last updated: 19 March 2020