Oberlechner v Hornsby Shire Council

[2017] NSWSC 23

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Oberlechner v Hornsby Shire Council [2017] NSWSC 23
Hearing dates:	5, 6, 7 & 8 December 2016
Decision date:	02 February 2017
Jurisdiction:	Common Law
Before:	Adams J
Decision:	1. Judgment is made in the plaintiff’s favour. 2. The plaintiff is awarded $380,640 plus interest in accordance with the Civil Liability Act 2002 (NSW), and costs.
Catchwords:	TORTS – negligence – road authority – physical injury – injury suffered as a result of a fall – concussion – actual knowledge of risk – vegetative barrier to risk – contributory negligence – Post-Traumatic Stress Disorder – pre-existing mental impairment – limited capacity to work – life expectancy reduced.
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 5B, 5D, 5R, 13, 16, 43A, 45 Roads Act 1993 (NSW)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Benic v New South of Wales [2010] NSWSC 1039 Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97 Hall v State of New South Wales [2014] NSWCA 154 Jones v Schiffmann (1971) 124 CLR 303 Leichhardt Council v Serratore [2005] NSWCA 406 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 Wilson v Nilepac Pty Ltd [2011] NSWCA 63 Yammine v Kalwy [1979] 2 NSWLR 251
Category:	Principal judgment
Parties:	Alfred Oberlechner (Plaintiff) Hornsby Shire Council (Defendant)
Representation:	Counsel: Self-represented (Plaintiff) R Gambi (Defendant)   Solicitors: Mills Oakley Lawyers (Defendant)
File Number(s):	2014/43786
Publication restriction:	None

Judgment

Introduction

1. At 9:30pm or so on Saturday 29 January 2011, the plaintiff took his two dogs for a walk as he often used to do in the evening. As it happened, he departed from his usual route and walked down Cairnes road in the Sydney suburb for which the defendant was responsible. Although one side of the road, immediately adjacent to residential housing, was paved, he decided to walk down the other side of the road on a grass nature strip. As they are wont to do, the dogs strayed a short distance off to the side and started to sniff along some bushes and grass, perhaps knee or waist high. The plaintiff, as dog walkers are wont to do, followed them. Unbeknown to him, however, about 3.5 or 4 metres from the edge of the bitumen surface of the road was the unmarked edge of a wall, falling sheer to a rocky drain three metres below, over which he fell. This headwall was part of a culvert for channelling flood waters from adjacent higher undeveloped or farming ground under the road and the adjoining residential development.

2. The plaintiff said things went black and, when he came to his senses, he found himself lying in the pit on his back with the water of the little creek running past. His dogs were near him. (One had broken a leg). Eventually, he used his mobile phone to call triple 0 (after attempting unsuccessfully to call his wife) and an ambulance was sent out. He was in darkness and it took some time before he was located and extracted with the assistance of Search and Rescue. He was taken to Westmead Hospital where he was admitted with fractures to his left hand and wrist and to the right ankle and several soft tissue injuries.

3. It is undisputed that the headwall was owned by the defendant, which was responsible for its proper maintenance. The case of the plaintiff is, essentially, that, situated by the side of the road as it was, with its edge obscured by vegetation, the defendant ought to have fenced the headwall off to remove the risk of a pedestrian falling over the edge and injuring themselves. In this respect, s 45 of the Civil Liability Act 2002 (NSW) gives what is described in the Act as “special non-feasance protection for roads authorities” to the defendant, which the plaintiff must displace if he is to establish his claim. Additional statutory protection is afforded to the defendant by s 43A (all legislative references are to the Civil Liability Act 2002 (NSW) unless otherwise indicated), which applies where a “special statutory power” has been or failed to have been exercised. It is not disputed that the defendant, as the roads authority and owner of the road (and the culvert as part of the road) had a duty of care to take reasonable precautions responding to any foreseeable and not insignificant risk of harm. It will also be necessary to consider s 5B to determine whether the defendant breached this duty of care and also s 5R, which concerns the issue of contributory negligence of which, the defendant submits, the plaintiff was guilty.

4. So far as the issue of damages is concerned, there is a real question whether the plaintiff had any capacity as at the date of accident to earn any significant income. Certainly, he had been incapacitated from his usual occupation as a computer technologist since about 2000 and the evidence he presented as to his earning capacity following the accident, had it not occurred, is, to say the least, exiguous. The evidence also does not justify any award of damages for either past or future domestic assistance. I will deal with all these issues in due course.

5. The plaintiff was not represented and, at times, had difficulty in appreciating the trial process but he was compliant when matters were explained to him. He evidently laboured under some difficulties of expression and organisation but, in general, managed to conduct his case with reasonable effectiveness, though there were some gaps. He became emotional at times as he described his feelings when he found himself at the bottom of the wall and the difficulties of obtaining assistance. I thought he was attempting to tell the truth as best he could, though some of his evidence was reconstruction rather than actual recollection.

The plaintiff walks his dogs

6. In her affidavit, Mrs Oberlechner (who was not required for cross-examination) said that the plaintiff finished doing some lawn mowing work on the day of the accident at around 4pm or 5pm, then relaxed, drank two beers and watched television. They had dinner at about 7:30pm or 8pm, the plaintiff having about one and a half glasses of wine with the meal. He then watched television for a little and at about 9pm took the dogs for a walk, seemingly relaxed and well. The plaintiff at one stage suggested he left at about dusk; considering the date, this may have been so but, even had he left home at dusk, it was dark by the time he reached the headwall. He later agreed that he had left home when it was dark and did not have a torch. It was his practice to go out in the evening or night-time to take the dogs for a walk. He had been living in the area for about two years before the accident but, although he had driven down Cairnes road before, this was the first time he had walked along it with the dogs. He said there was some street lighting just before the accident site on the corner “so there was like a shadow sort of, faint light shining over, so you – I could see the road, I could see the grass but not in any great particular detail. So it wasn’t totally pitch-dark”.

7. The plaintiff described his walking in the local suburban streets for (as I estimate) perhaps 20 or 30 minutes or so, ultimately coming to Cairnes Road, which he crossed to walk on the nature strip. There was some street lighting across the road but not on the side on which he walked. He could still see in the dimness. He said that he followed the dogs, which were sniffing what appeared to be bushes or overgrown weeds. His recollection appears to be that he was stepping through “overgrown weeds”. He then took another step along the nature strip and fell. In his letter of complaint to the defendant on 28 February 2011 he said that he “followed the dogs not thinking much, unaware that there was a massive hole opening dropping down about three metres hidden behind the bushes… [and the] last thing I remember I took another step forward and then it all went black… as I fell down the hole”. Elsewhere he said, “I must have got too close to the edge of the pit with my right foot, thinking I was stepping over overgrown weeds”.

8. In cross examination the plaintiff was asked –

Q.    Was the verge mowed?

A.   No, it was overgrown by bushes about that high [indicating about waist height]… all your saw is like what weeds or small bushes but waist height.

Q.    So let me just get this straight, you have got a couple of small dogs. They are, as it were, leading you into an area where there are some bushes and grass more or less waist height where you couldn’t see the ground and its dark does that fairly describe this situation?

A.   Yes.

It was not put to the plaintiff that the bushes or weeds were such as to form any kind of barrier or that it took any effort for him to walk through to the edge of the wall, or, indeed, that he had to push any of them aside. The question about mowing grass was focused on the verge. There was, therefore, no basis for the submission that there was either at the time of accident or, indeed, at any early time any substantial obstacle or barrier comprising vegetation.

9. Photographs of the scene were taken by the plaintiff’s wife on the day following the accident. They provide a much more reliable picture of the vegetation at the headwall than the plaintiff’s recollection which I think is likely to have been affected by the fact that he was not paying particular heed at the time and the likely discombobulating effect of the fall and its aftermath. His evidence contained, I think, a degree of reconstruction as he tried to make sense of what had happened.

10. The photographs show branches of bushes or trees growing from the ground more or less at the base of the headwall which overhang somewhat into the verge area with one or two straggling, small trees perhaps a metre or so high apparently on the verge towards the side of the flat “apex” of the wall. There are no bushes along the apex, with the grass running to (and overlapping) the edge. The grass appears to have been flattened along the apex going back to the road, probably by those attempting to extract the plaintiff from the drain, though ultimately it was necessary to approach him from the bottom of the wall rather than from the top. There is, as I have said, no sign of bushes in this area and no sign of any having been removed or trampled – though if any were trampled to the ground, they must have been small. It seems likely the plaintiff had approached the edge by a slanting route, following his dogs and, if so, he may have come across the small trees mentioned or, if from the other direction, the overhanging branches of the trees growing from below. Certainly, there was no vegetation remotely capable of constituting a barrier and no sign of there having been. It is evident also that the verge close by and along the road had been recently mown, since an ongoing strip of short grass perhaps two or three metres wide can be seen in several of the photographs.

11. Aerial photographs tendered by the defendant dated 2009 and 2011 show foliage at the wall but the angle and distance make it impossible to judge whether the foliage is at road level or overhanging the edge and, if the latter, how close to the ground at the nature strip it came. There is a strip of grass (backed by a large area of lawn) alongside the road which has obviously been mown and, as I read the photograph, continues (obscured) along the road underneath the foliage, emerging again where the overhanging foliage ends further down. Aerial photographs dated August 2013 and February 2014 appear to show some clearing of the foliage, confirming my impression that it came from trees growing from beyond the edge and overhanging the nature strip above. Google street views of February 2014 appear to show the area is completely mown and tall trees beyond the wall with foliage overhanging the cleared strip. A wire fence is depicted apparently along the edge of the wall. These photographs do little to elucidate the question of the extent of the vegetation at the wall in January 2011 and do not suggest to my eye that the photographs tendered by the plaintiff should be understood differently to the observations I have described above.

12. I should mention at this point (though somewhat prematurely) that what Mr Bewsher (the plaintiff’s expert) called “a typical guidepost for a road”, bearing the usual reflector, is depicted in the plaintiff’s photographs about a metre in from the edge of the headwall. The defendant was responsible for the road and, hence, for the placing of guideposts. The photographs show that it stands alone and is thus not part of the commonly seen line of guideposts marking the edge of a road or road reserve. The high probability is that it was placed in that position for the purpose of preventing a vehicle from approaching the edge. It must follow that an employee of the defendant, responsible at least for the safety of road users, was aware of the risk posed by the wall and had turned his or her mind at least to the risk for vehicles. In my view the risk to pedestrians in this area – houses are shown on the road, alongside and opposite – was just as obvious.

13. The account in his statement, which I accept as essentially truthful, is as follows –

The last thing I remember before the fall is taking another step along the nature strip and then things went black in front of my eyes as I fell down the pit. I must have got too close to the edge of the pit with right my foot (sic), thinking I was stepping over overgrown weeds.

I must have been unconscious for a while as when I came to my senses I found myself lying in the pit on my back with water of the little creek running past me.

My two dogs were laying near me. One of the dogs was whining and turning and tossing in the water. I tried to pull him towards me with the leash I still held in my hand but with no avail. He was just whining in pain.

My other dog was sitting beside my head, licking me in the face. He appeared unharmed and, looking back, he probably saved me from a potentially worse outcome. By his licking I believe he helped me to wake up from unconsciousness.

I tried to move, trying to get up but found myself unable to move, only my right hand and a tiny bit of the upper body, perhaps half an inch or less off the ground at best. My chest was hurting intensely as I tried to make even the slightest move.

I laid there on my back staring up at the star lit skies, trying to remember what happened, where I was and what I could do, with a sense of helplessness, despair and fear.

I distinctly recall thinking ‘this is it, this is the end, no way anyone would ever find me, or hear me or rescue me’. I screamed out ‘hello’ and ‘help’ but soon realised it was pointless.

With my right hand I felt down towards my pockets and felt my mobile phone. Lucky I had brought my phone, as I usually do. It was switched off though I managed to turn it on.

My right hand and arm were the only body parts I could move freely. I started to try and ring my wife from the phone but there was no answer. I thought she must have gone to sleep.

I then thought of ringing 000, which I did without delay. I got through to them and explained what had happened to me and that I was in urgent meed of an ambulance and remember saying that I was in a desperate situation, badly injured and in excruciating pain.

The operator took all the details down and after some explaining such as where Glenorie is situated and whereabouts I was, she said the next available ambulance would be coming.

After what seemed like an hour or more passed with no sign of an ambulance I rang again.

I was advised that an ambulance was indeed on the way coming, but that it had to come from some distance away, and said for me to hang in there.

Desperate thoughts went through my mind like that my call may not have been taken serious (sic), assuming it was a prank call, fearing of never being found and rescued and die.

I persisted in ringing again, and on the last occasion the operator advised me that there was an ambulance traveling down Cairns Road (sic), but was unable to locate the site I described.

I asked where they were and was advised they had reached Ben Bullen Road, which is some way further down the road. I said they had gone way too far and past me, and to turn around.

I told the operator to instruct them to drive back, turn on their sirens or lights, and drive slowly along the road in the hope that I would be able to see the flashing lights or hear their siren. I asked for the operator to stay on the line so I could advise when I saw their lights.

14. The plaintiff said that, after some time, he saw the reflection of lights and told the operator to ask the ambulance crew to stop and look in the bushes along the side of the road. He also started to call out. He was then found. Eventually a fire and rescue crew came around the other side of the headwall, below the road, cutting through the thick vegetation and placed the plaintiff on the stretcher and into the ambulance. He had previously been given some pain relief in several doses. He described himself as “somewhat delirious from the shock of the accident, the fear and anxiety of thinking I may die, excruciating pain and the strong pain relief I was administered”. Although in his statement he described a blow to the head, I think this was reconstructed from his calculation of the time which elapsed between his leaving home and the first contact with triple 000, which of course was recorded. The plaintiff calculated that he was unconscious for several hours. I think this is unlikely but it was a not insignificant period. I also think it likely that, after he came to, a significant time elapsed before he was sufficiently recovered to get his mobile phone and start to make the calls. In the result, nothing turns on this.

Legislation

Civil Liability Act 2002 (NSW)

5B General principles

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

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

(b) the risk was not insignificant, and

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

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

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

(b) the likely seriousness of the harm,

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

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

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

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

5R Standard of contributory negligence

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

(2) For that purpose:

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

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

43A Proceedings against public or other authorities for the exercise of special statutory powers

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A special statutory power is a power:

(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

45 Special non-feasance protection for roads authorities

(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2) This section does not operate:

(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk.

(3) In this section:

carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993.

roads authority has the same meaning as in the Roads Act 1993.

The headwall and the Council

15. The culvert, of which the headwall was part, ran under Cairnes Road and held a wide pipe going on for some distance under residences on the other side for the purpose of draining stormwater following a substantial flooding event. The headwall, near enough to vertical, supported the roadway. Viewed from above, it comprised a flat edge parallel to the roadway about 30cm wide and flush with the level of the nature strip, straight for about three or four metres, and having wings going out at an angle from each end. It fell about three metres to the rocky ground below. The length of the wall was not the subject of direct evidence and does not matter very much, since the plaintiff’s evidence (not controversial on this point) is that he found himself on the ground either in or adjacent to the lead-in drain to the embedded pipeline. (From the tendered photographs it appears that it extended on each side of the pipeline (itself 1.35 metres wide) by something like three metres (and probably more) from the centre.) The relevant construction drawing is dated October 1978 and the culvert with the headwall was built sometime in late 1979. The drawings and the defendant’s records do not indicate that any safety fencing was required to be installed to prevent pedestrians falling into the structure and it is very likely that the headwall was built without any safety fencing and remained so until a fence was erected shortly after the plaintiff’s accident. As well as being the consent authority for the work, the defendant checked the designs prepared by the contractor and, indeed, the size of the pipeline was increased as a result of its requirements. On 7 November 1978 Mr RK Woodward, the defendant Shire Clerk wrote to Gutteridge Haskins & Davey Pty Ltd, the consulting engineers who had submitted the engineering plans for the road and drainage works associated with the subdivision along Cairnes Road adjacent to the headwall, approving the plans which had been submitted by the firm subject to a number of specifications. The firm was reminded that, when it intended to commence work, the Council’s assistant subdivision engineer Mr R. Minns was to be notified to conduct an inspection of the site accompanied with a protractor. I think it probable that such an inspection took place. I think it also very probable that the site of the culvert here in issue was seen and that the proposal for the headwall, together with its position and dimensions must have been known to Mr Minns. I think it reasonable to infer from his position that he would have been a person charged by the defendant with responsibility to make decisions about road works. Indeed, it is likely that the headwall details would have been shown on the amended engineering plans submitted by the consulting engineers and the person who specified the additional matters, related in a detail to the construction and following an examination of the proposed works, was also in a position to appreciate the risk for pedestrians presented by the proposed headwall. That person also, I think it reasonable to infer, was responsible in the relevant sense for dealing with the risks that the construction obviously presented. Following completion of the engineering works required for the subdivision, on 4 May 1979 the consulting engineers forwarded to the Shire Clerk the final plan together with a s 88B instrument for the Council’s endorsement, and a certificate signed by the surveyor as to the location of storm water pipelines. It is clear that the particular pipeline secured by the headwall was one of those and its location was therefore brought again to the attention of the defendant. It is likely that these plans and the certificate would have been inspected by an engineer who was involved with overseeing or supervising Council’s role in respect of engineering works, including the road works involved in the culvert. The knowledge of this person or these persons would be the actual knowledge of the Council in the sense of s 45.

16. The only evidence concerning the construction of the pipeline, stormwater drainage design practice and the defendant’s connection with the pipeline and its location was given by Mr Drew Bewsher, called by the plaintiff, whose report was tendered. The defendant proffered no evidence about this matter. Mr Bewsher’s qualifications and expertise in relation to the matters about which he gave evidence were not in issue. In brief, following his formal tertiary qualification in 1975 and 1977, he worked in water related projects in Australia, America and South East Asia, including floodplain risk management studies and plans for approximately 30 New South Wales’ councils. He has extensive experience in the design and management of flooding and draining infrastructure, including major trunk stormwater systems and the civil works associated with numerous floodplain and stormwater projects. More particularly, his experience included the evaluation of many hundreds, if not thousands, of urban stormwater drainage systems and the provision of advice to over two dozen local councils, many in the Sydney area. He has also written a number of technical papers on urban stormwater and flooding issues. He commenced working in Sydney as a hydrologist and stormwater drainage engineer in November 1979. As it happens, he has considerable experience of the stormwater drainage systems within the Hornsby Shire, extending from the late 1980’s when his firm was commissioned to investigate the stormwater inundation of approximately 100 residential properties within the Shire which occurred during major storms in 1988, 1989 and 1990. The work broadly comprised investigation of the deficiency in the stormwater drainage systems, proposals for rectification and the engineering design of rectification works. He said that, since the 1990’s, his firm had provided advice to the defendant on a regular basis but not as frequently at it did during the 1990’s. Over 2013 and 2014 the firm undertook major stormwater drainage study which included investigation and recommendation of stormwater drainage upgrades in a problem area of Epping and Carlingford. During his career, Mr Bewsher has inspected over a hundred stormwater drainage systems within the Hornsby Shire which have included numerous larger diameter pipe systems such as the one in Cairnes Road. He was cross-examined about whether his reports following the inundation to which he referred, included such safety issues as lack of fencing at headwalls. He said this was not the primary purpose of the investigations, which was to identify why the houses were flooded above floor level and the inspections of the stormwater systems were part of that process but, where there was a safety deficiency, it was part of his responsibility to bring it to the Council’s attention.

17. Mr Bewsher, accordingly, has had some decades of experience working with the defendant all over the Shire. He was familiar with the way the defendant builds its stormwater systems. In his experience, the omission of a safety fence at the site of this headwall was inconsistent with what he had seen in the Shire. Indeed, he went so far as to say that he “had never seen a situation like that in Hornsby without a railing on it” and was “staggered” to find the headwall had not been fenced, not only (as I understood his evidence) because it was a danger, but because this was markedly inconsistent with the defendant’s attitude to safety that he had observed. He said that, when he was doing the investigations for the Council, he did not himself suggest or propose safety fencing, but fencing was there as a matter of standard practice.

Actual knowledge of the defendant and the reasonable response

18. It is useful at the outset to consider s 43A and s 45 since they apply specifically to the defendant in the circumstance of this case and present, as it were, the gates which the plaintiff must open before other more general provisions relating to liability come into play. Taking first s 45, the defendant is a “roads authority” as Cairnes Road is a public road of which it is the owner with power (but not a duty) to carry out road work. A road is defined in the Roads Act 1993 (NSW), in effect, to include the culvert and the headwall and “carry out road work” is defined similarly. It would also include, for example, building a safety fence along the edge.

19. The crucial issue raised by s 45 is whether the plaintiff has established more probably than not that the defendant “had actual knowledge of the particular risk the materialisation of which resulted in the harm”. The particular risk relevant here is that someone might accidently fall over the edge of the headwall and suffer physical injury. The plaintiff must show that persons “who in fact have the function of carrying out roadwork, or of considering carrying out roadwork” possessed the actual knowledge of the particular risk: North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27 (“Roman”) per Bryson JA at [130]. In that case the plaintiff was injured when she tripped in a pothole which was known to the Council’s employed street sweepers. She argued that it was the street sweepers’ duty to inform the persons at the Council responsible for road maintenance of the presence of the potholes and, therefore, the risk that someone might trip as a result would have come to the actual knowledge of the persons having the function of carrying out or considering the carrying out of roadwork. The Council adduced evidence from the supervisory staff with responsibility for street sweeping and road maintenance denying knowledge of the pothole in question at the relevant time but the trial judge inferred that one or more of them (unidentified) in fact had such knowledge and that this knowledge was the knowledge of the Council. On appeal, the respondent contended that the evidence established that the Council had put in place a system to guard against hazardous potholes which involved the street sweepers reporting their presence as they carried out their duty to their supervisor, who in turn reported the problem to a person responsible for carrying out repair work and that, although the only evidence of actual knowledge was that of the street sweepers, given their role in looking out for and reporting on hazards that might require repair, this sufficed to render their state of knowledge to be that of the Council for the purposes of s 45(1). The appellant argued that the trial judge had erred in determining that some person with relevant responsibility had actual knowledge of the risk presented by the pothole, despite the evidence of the responsible officers to the contrary (upon which they had not been cross-examined).

20. Basten JA identified (at [176]) several errors in the factual reasoning of the trial judge which went to “a critical element in the case” and, after noting additional errors, concluded that the judgment could not stand. To appreciate the process of reasoning for which Roman is authority, it is necessary to note, in particular, the language in which Basten JA stated his conclusion –

[186] In terms of s 45, the risk which materialised and which resulted in harm to the respondent, was twisting her ankle and falling, when stepping in the pothole. Knowledge of that particular risk required, and would be satisfied, by knowledge of the existence of the pothole. Accordingly, for the statutory immunity to be displaced, the relevant officers of the Council had to have actual knowledge of the existence of the pothole at a time between February and October 2001. Their evidence that they had no such knowledge, especially where unchallenged, should be accepted. The only relevant challenge … failed, both because of the specific reasons why … [identified officer] might have remembered the existence of a pothole in that particular street and because absence of recollection would not assist a finding of actual knowledge. Even assuming that a street sweeper had the relevant knowledge, the mere fact that street sweepers were directed to notify senior officers of hazards observed, would not satisfy me, on the balance of probabilities, that any such notification occurred. Indeed … the evidence demonstrates that no Council officer at a decision-making level had ‘actual knowledge’ of the particular pothole and therefore the Council did not have such knowledge. Accordingly, the exception to s 45 was not engaged and the statutory immunity must prevail.

21. Bryson JA (agreeing with Basten JA) stated –

[130] … Whether or not failure to carry out roadwork or to consider carrying out roadwork … can only be addressed by examining the Council’s organisation and identifying persons who in fact have the function of carrying out roadwork, or of considering carrying out roadwork. In the workings of s 45(1) those are the persons whose actual knowledge of a particular risk is relevant. In the reasonable interpretation of s 45(1), failure to act in the ways referred to and possession of the actual knowledge referred to relate to the same persons. A shift away from the persons whose failures are relevant to other persons whose actual knowledge is relevant would be anomalous and has no textual support in s 45.

I do not understand either of their Honours to be suggesting that it is necessary to name or identify individuals as distinct from, for example, establishing that there is a class of individuals who have the relevant function and proving that one or more members of the class more probably than not had actual knowledge of the requisite matters. Nor is there any basis for declining to infer actual knowledge in the relevant persons by circumstantial evidence justifying the inference in the conventional way.

22. In this case, the defendant took over the ownership of the pipeline infrastructure, including the headwall. Although the date that it actually did so is uncertain it was, at all events, significantly before January 2011. As I understand Mr Bewsher’s evidence, the defendant would have had a particular interest in the design and construction of this drainage system, because it was envisaged that it would take over the infrastructure and, as Mr Bewsher put it, “they’re going to have to be responsible for it forever. In the documentation he reviewed, he saw a great deal of correspondence between the defendant’s design engineering employees and the contractors about the design, including (as I have mentioned) a recommendation that pipe sizes be upgraded. There was no specific indication that the defendant’s employees inspected the site but he said that he would expect that they did so before approving the design, given the size of the adjoining sub-division. He pointed out the designs at the time used what engineers called a “standard drawing”, so that the same drawing would be used whether there was headwall 600 millimetres or three metres high. Safety considerations would only be apparent on the bigger sizes and would not be needed on the smaller sizes. He said, therefore it is only after construction that the Council engineer would inspect the works and consider, amongst other things, safety questions. Mr Bewsher said there were three opportunities in the process for the question of safety to arise because of the height of the headwall to be considered: in the original design on the plans; when the works are constructed; and when the Council Asset Manager (as he is now called) went to look at it and accept the works because the Council then became the owner of it. He said, in his experience, such an inspection would always happen when a Council was going to take over the asset: it is going to be theirs; they are going to be responsible for it in perpetuity; they would not take it over without inspecting it to make sure they were happy with its design. He pointed out it was never sufficient to accept a “work-as-executed” plan submitted by an engineer since this was limited to a comparison of the construction with the plan and is not a substitute for an inspection by the responsible Council officer. I understood this evidence to mean that the officer who was responsible for inspecting and accepting the construction as compliant was also responsible for ensuring that it was safe. (However, on the other side of this reasoning, it might be inferred – though, as explained below, I do not accept this argument – that, since safety fencing was not erected, no relevant officer of the Council was in fact informed of the danger, though he or she ought to have been so informed.)

23. These, however, were not the only ways in which the Council would have become aware of the safety issue. Mr Bewsher said that, by January 2011, having unfenced headwalls (I think he meant with a fall of the order of that involved in this case) was “uncharacteristic of the Council” and went on to say –

I am staggered that this headwall was in the location it was as when I saw it and it had gone on -- if it was like that without the barrier, vegetation or fencing, around it – in that state for such a long time. I am staggered that someone hadn’t reported it to the Council, the Council hadn’t done something about it; the Council Officer’s just driving up and down the street as part of their routine business saw this and said, “Hey”, go back and tell their stormwater people ‘fix that’.

Mr Bewsher also mentioned the likelihood that Council employees would have mown the grass verge in the vicinity of the headwall at regular intervals. (Indeed, as I have mentioned, that this had occurred adjacent to the wall is clearly demonstrated by the photographs taken the day after the accident.)

24. The question arising under s 45 of actual knowledge of the defendant must, of course, involve more than the knowledge of the gardening department or a passing clerk and that constructive knowledge is not the test. The effect of Mr Bewsher’s evidence is, as he understood the way in which Hornsby Shire Council operated, the probability is that, one way or another, a Council employee would have noticed the risk represented by the headwall to the safety of pedestrians and informed some relevant officer of the Council of the risk, that is, the officer responsible for the road works.

25. Mr Bewsher pointed out that, in the late 1970’s – that is, when this headwall was constructed – stormwater drainage practice gave little guidance so far as public safety was concerned, although this was always a feature of the duty of care recognised by the engineering profession. He pointed to a publication known as “Australian Rainfall and Runoff” which provided the principal guidance for New South Wales stormwater engineers at the time. The 1977 edition under the subsection “Safety” within the chapter “Urban Drainage Design” stated –

An urban drainage system is intended to reduce flooding and thereby reduce damage and minimise risk of accident and loss of life. The safety aspects of a drainage scheme should therefore be given careful consideration during the design phase…

Safety fencing and warning signs should be provided around areas where pipes discharge into an energy-dissipation basin. These areas have a great fascination for children and can be very dangerous. Similar protections should also be provided at the inlet structures to drainage systems to prevent children being washed into drains.

As Mr Bewsher noted, although these comments were likely directed to the prevention of drowning, they indicate the need for safety to be considered. At the same time, he expressed the opinion that it was not uncommon in the 1970’s for large headwalls, such as here, to be built without safety fencing although he did not consider that this was good practice.

26. Over the 1980’s and 1990’s significant changes occurred in the manner in which safety issues were addressed by the stormwater engineering community. There were no clear guidelines or procedures to ensure safety; rather, safety measures were commonly retrofitted when safety concerns had been raised, often only when a complaint had been made by members of the community or when, for whatever reason, a council officer inspected the site and became aware of the safety risk. As Mr Bewsher put it, this was “a reactive approach to safety rather than the pro-active approach used today”. He observed that it appeared from what the plaintiff said that the presence of the concrete headwall was partially obscured by grass and the surrounding ground levels were broadly similar to roadway and the grass verge and, consequently, the large drop present at the face of the headwall was unexpected; this might have hindered the identification and reporting of the safety problem to the Council.

27. In the decades after 1979, stormwater engineering practice became more codified and various guidelines and manuals were prepared, emerging in the 1980’s and 1990’s, mostly discussing the potential risk of drowning but the safety of pedestrians falling into structures was also considered. Mr Bewsher said that, by the early to mid-1990’s, the relevant guides and manuals placed a clear requirement on designers and consent authorities to give greater considerations to safety risks and proactively protect against personal injury and drowning through proper design, which would have required safety fencing around dangerous headwalls, such as that here, and also created an obligation on councils to rectify safety deficiencies in existing structures. As a sign of this changing practice, Mr Bewsher commented that the Sydney Water Corporation is responsible for over 400km of stormwater channels and other stormwater drainage assets across Sydney of which, in the 1980’s, very few were fenced but, over the decade or so from 1990 onwards, safety fencing was provided by the Corporation around all its structures.

28. It is not necessary, I think, to deal in detail with the material cited by Mr Bewsher in his report. It was not suggested to him that, well before the accident here occurred the defendant had no duty to erect a safety fence at this headwall once a responsible officer became aware of the issue, though there was some debate about what safety measures might be necessary (discussed below). It could scarcely be controverted that this headwall was dangerous.

29. Mr Bewsher referred to the Council’s preparation in April 2006 of a “formal asset management plan (AMP) for its stormwater assets including all its pipes and headwalls”. The part of the AMP which shows a survey of the headwall in 2000 shows that it was conducted by a subsidiary of the Sydney Water Corporation, Australian Water Technologies. The AMP itself came into existence into about 2005 and covers 2005 to 2015, so that the document referring to the 2000 survey came into the plan, of course, at a later date. There was also a survey or inspection carried out by Council in November 2007 but the relevant document directly relating to that activity was not seen by Mr Bewsher. Mr Gambi of Counsel for the defendant suggested to Mr Bewsher that what he took to be updated information was simply the entry of the 2000 information into the AMP. Mr Bewsher could not answer that question immediately, saying he needed to look at his documents. Ultimately, however, this possible explanation was not pressed by Mr Gambi, so that Mr Bewsher’s evidence on the point remained unqualified. He said that, for the purposes of conducting the audit of Council’s assets performed by AWT in 2000, a physical survey would have been involved which identified not only the location but also the dimensions and conditions of the asset. He thought that, as a part of this process, Sydney Water would have identified the safety risk issue when it was surveyed if the headwall was open and exposed. However, if (as suggested by Mr Gambi) there was one or one and a half metres of blocking vegetation around the headwall, so that people could not fall into it, he would not have expected any note about danger. (I have discussed the issue of vegetation at the site above and concluded there was nothing to impede access to the edge of the wall. The suggestion that the presence of vegetation might have been sufficient at some earlier time to provide adequate safety is taken up below and dismissed.)

30. The preparation of the AMP and its supplements required the defendant to identify and inspect its principal stormwater assets. The documents indicate that, in March 2011, the Council had something in excess of 1400 headwalls under its control, most of them considerably smaller than that in Cairnes Road. Mr Bewsher stated in his report –

Based on my familiarity with the stormwater assets in the Shire and my experience in working with Council’s engineering staff, I anticipate that the vast majority of any dangerous structures such as the… [presently relevant] headwall currently have safety fencing of some sort.

By “anticipate” Mr Bewsher meant “expect”. Taking his evidence as a whole, I understand him to mean that this expectation represented (at least) a high degree of probability. These headwalls, it is reasonable to infer, had been constructed more or less when the Cairnes Road headwall was constructed and in the ensuing years. The fact that they had safety fencing meant that those responsible for the road work had appreciated the need to build such fences either at the time of construction or afterwards. There is no evidence that the Cairnes Road headwall significantly differed from any of the others that required fencing and no such suggestion was put to Mr Bewsher. There is no reason to suppose, either, that the relevant officers were not aware, one way or another, of its location and character, which must have been known at the time of construction or later inspections, by the very same means as had informed the need for the fences at the “vast majority” of such dangerous structures. Indeed, it is most unlikely that the process that had been applied to those structures and resulted in the safety fences had not been applied to that in Cairnes Road. There is nothing in the evidence that militates against accepting Mr Bewsher’s opinion, supported as it was by decades of particularly relevant experience of the defendant’s practices, summarised in his report as follows –

“Consequently it appears that from 1978 through to the time of the accident in 2011 Council was aware of the existence of the…headwall but apparently took no action to rectify the safety deficiencies at the site. In my opinion this was an oversight by Council and is uncharacteristic of the manner in which Council has generally managed its stormwater assets.”

31. Given the position of the headwall, it is likely that its safety risk was brought, one way or another, to the attention of the defendant’s relevant officers on occasions over the 31 year period after construction. Records obtained from the Council indicate that the headwall was listed within Council’s stormwater asset database and that inspections to determine the structural condition of the asset had been carried out. The safety hazards at the headwall must have been evident during those inspections and on other occasions.

32. I should add that, in my view, the particular risk that a pedestrian walking along the nature strip might fail to see the edge of the headwall and fall over it would have been obvious to any person who saw the headwall in that location, including the engineer or road works inspector (whatever his or her actual designation). This was no mere accidental hole in the road or happenstance protruding tree root but a construction with which the defendant had been closely involved from the beginning and taken over and was well known at all times to its officers responsible for inspections and maintenance. To know of the headwall, in short, was to know of the risk it posed. As the correspondence to which I have referred demonstrates, the location and nature of the construction of the headwall was well known to the relevant Council officers from an early date.

33. It is submitted by the defendant that the assumed (or indeed even the actual) knowledge on the part of a grass cutting worker or someone from the Council who happened to notice the absence of a safety fence at the culvert is not actual knowledge of the Council officer charged with the responsibility of erecting a fence. This may readily be accepted. However the case for the plaintiff, as appears from the evidence of Mr Bewsher, is, essentially, that at the time that the Council approved the design of the road works, namely the culvert, it would have been apparent that a substantial fall from the edge of the roadway was a risk requiring a safety fence to obviate. It must have been the case that the dimensions of the wall and its position alongside the road were known to the Council engineers responsible for assessing and approving the design. Furthermore, as Mr Bewsher explained, a relevant officer of the Council must have inspected the site of the culvert at the point when the culvert was taken over as one of the Council’s assets. That officer must have been aware of the considerable danger represented by the constructed drop to which a safety fence was the only sensible solution. It is probable also that there were subsequent reports from inspections in 2000 and 2007 which concerned the physical state of the wall and, very likely, disclosed that the wall created a sudden drop only four metres or so from the edge of the road. As I have said, the mere physical description of the structure and its location was, of itself, actual knowledge of the particular risk it represented and which resulted in the harm suffered by the plaintiff. It is clear from Mr Bewsher’s evidence that, as he understood the way in which Hornsby Shire Council operated, it is likely that this knowledge was that of one (more likely more) of those charged with carrying out roadwork or considering carrying it out. I accept that such officers, although they knew of the headwall and the consequent risk to pedestrians and the lack of any safety fence, might not have thought about the safety implications of those facts but the construction itself created the fall and represented the particular risk.

34. In addition to these matters is the presence of the guidepost. This is shown in the photographs tendered by the plaintiff. The photographs taken by Mr Bewsher (and, for that matter, those tendered by the defendant) show that it had been removed. I think it reasonable to infer that this was because the danger was answered by the fence. However this may be, the inferences to which I have referred above provide strong support for the conclusion drawn from Mr Bewsher’s evidence that the defendant’s employees responsible for roadway safety were aware of the wall and the risk it presented. This evidence was not the subject of specific reference by either party, though in a question to Mr Bewsher, I brought the guidepost’s presence to their attention. I would have drawn the inference that the plaintiff has satisfied s 45 from the other evidence which I have summarised above. The guidepost’s presence at the headwall makes that inference even more certain.

35. It was submitted here that vegetation might have constituted an adequate safety barrier. There is no evidence that, at any time, such a barrier existed. The supposition that it did is mere speculation and it is scarcely likely at all events. It must be remembered that this wall was a substantial concrete structure. It beggars common sense to suppose that the defendant’s responsible officers could have placed vegetation as a barrier in place of a fence. The possibility merely has to be stated to be refuted. It was also suggested that the presence of such vegetation might have prevented some later observer from seeing the headwall and learning of the drop. The knowledge of the headwall and its danger was known at the time of construction or, at the very least, when it was inspected for compliance on being taken over. The risk was therefore actually known and it cannot be that the defendant can claim immunity if it was subsequently forgotten. At all events, I am satisfied that its knowledge would have been “refreshed” (if that were necessary) by the subsequent inspections referred to in its records. The failure of the defendant to call any relevant officer or proffer any evidence at all about the headwall strengthens the inferences to which this evidence – and that of the practices of the defendant – gives rise.

36. As Giles JA said in Leichhardt Council v Serratore [2005] NSWCA 406 –

“[15] It will often be the case that a plaintiff does not have direct evidence of a road authority’s knowledge of a risk. Like all facts, knowledge can be inferred from other facts, and if the inference is fairly available and the road authority calls no evidence to rebut it the Court can comfortably find knowledge.”

Unlike the situation in Roman, this is the case here.

37. I now move to the application of s 43A to the circumstances of this case. The first issue which arises is whether the liability of the defendant is based upon its “exercise of, or failure to exercise, a special statutory power conferred” on it. The defendant is a public or other authority and also the roads authority in respect of Cairnes Road. The drainage system and or erection of a fence along the verge of the road within a road reserve (which the plaintiff claims the defendant ought to have been undertaken) could only be undertaken by or through the defendant. It follows that the alleged act or omission of the defendant involves the exercise of a special statutory power. It is therefore necessary to consider whether the alleged act or omission – here, either the construction of the wall alongside the road without also constructing a safety fence to prevent persons falling over the edge or the omission to construct the safety fence when the defendant acquired ownership of the roadway including the culvert “was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider” constructing a wall where it was placed without building a safety fence or omitting to build a safety fence “to be a reasonable exercise of, or failure to exercise, its power”.

38. Since the defendant did not construct the wall but its consent to the construction was a prerequisite, the relevant issue is consent rather than construction but nothing turns on this distinction. For simplicity, it is sufficient to consider simply whether the defendant’s failure to construct a safety fence was unreasonable in the relevant sense. It is crucial to appreciate that the relevant question is whether no authority could properly consider the act or omission to be a reasonable exercise of or failure to exercise its power and not what the Court considers reasonable. (It follows, therefore, that the proposition put by me to Mr Gambi during submissions that a determination by the Court that an act or omission was unreasonable would be determinative was mistaken, as he rightly pointed out.)

39. The evidence of Mr Bewsher, which was not sought to be contradicted and in respect of which the defendant called no evidence for its part, was to the effect that the omission to construct a safety fence in the circumstances was completely unreasonable. It was argued by Mr Gambi, however, that it was necessary for the plaintiff to adduce evidence of what other roads authorities might or might not do when with faced with the issue presented by the presence of the wall. Although this evidence might be relevant (a matter about which I have some doubt), the statutory test is an objective one and is not to be determined by what most or some authorities might or might not do. At all events, the effect of Mr Bewsher’s evidence is that it has been for decades accepted by councils including, in his experience, the defendant, that headwalls such as that it Cairnes Road must be fenced. In some cases it might be necessary to weigh alternative means of dealing with a particular problem and it might be, for example, that an engineering solution which failed might for various reasons have been unreasonable to have been adopted but nevertheless it might have been one which the public authority could think was appropriate although it was not ideal. Pressures of time, urgency of finding a solution and expense amongst other reasons, might have fairly influenced the ultimate decision. In this case, however, the issue was a simple one. The risk would have been immediately obvious to any reasonable observer or any person who otherwise was aware of the construction and its location, whilst the cost of ameliorating the risk was, as Mr Bewsher pointed out, inconsequential – a few hundred dollars and involving little labour. As Basten JA pointed out (Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 at [278-279] (“Curtis”)), “the Court must view the matter through the eyes of a responsible public authority, having particular expertise and functions”. The defendant pointed to the evidence of Mr Bewsher that “Safety practice in terms of fencing around storm water assets … progressively changed over that period, the 90’s”. Mr Bewsher pointed out –

Your Honour, maybe there are the councils who look after stormwater but there’s also Sydney Water Corporation…[and the] Metropolitan Water, Sewerage and Drainage Board had built many hundreds of stormwater canals all around Sydney. If you go and look at them now, they are all completely fenced. There were signs up but years ago there weren’t fences.

Reliance is also placed by the defendant upon Mr Bewsher’s evidence to the following effect –

Q: Back in the 80’s when these floods occurred, there were headwalls in residential areas that were unfenced, weren’t there?

A: There are still headwalls in urban areas now that are unfenced. It’s a question of how – the height and whether falling into them was actually a safety risk. There were no headwalls, as I am aware, that I can remember that would have been 3 metres deep unfenced that I ever inspected in the Hornsby Shire in 1998 or subsequent to that time.

40. What Mr Gambi’s submission amounts to, as I understand it, is that, because the serious risk posed by the headwall (that must be immediately self-evident to any person who was aware of it) was ignored in 1979 when it was constructed, it follows that a road authority could consider the failure to fence “to be a reasonable exercise of, or failure to exercise, its power”. However, this is not the statutory question, which includes the crucially important qualifying adverb “properly”, so that the mere omission to fence as a matter of fact does not become a reasonable failure to exercise its power simply because that was a common practice. The importance of the qualification is noted in the following passage in Curtis from the judgment of Basten JA –

[279] The second aspect of the statutory language is that the state of mind of the authority is not identified as one which it would or should hold, but rather one which no authority could hold. In other words, it envisages a range of opinions as to what might constitute a reasonable act or a reasonable failure to act but asks if no public authority properly considering the issue could place it within that range. [Second emphasis mine.]

The submission of the defendant focuses on the notion expressed in the first sentence in this paragraph, interpreting “could” as a prediction of actual decision making and omits the notion otherwise expressed in the second sentence which shows that the question is not one of history but one of propriety. The submission, therefore, that there “is no evidence in the present case that no authority could properly consider the Council’s act or omission to be reasonable exercise of, or failure to exercise, its statutory power” is not the point. This is not a matter of taking a vote amongst road authorities although I accept that it is relevant to consider the general practice relating to these matters at relevant times.

41. It was suggested to Mr Bewsher in cross examination that the distance between the edge of the road and the wall would be a factor to take into account when considering what to do about a drainage system and the headwall in particular so far as the construction of a safety fence was concerned. Mr Bewsher accepted that this was a factor but would not be a primary factor. Another factor would be the expected traffic volume. It was also put to Mr Bewsher that if there is (as was the case here) a safe passage on the other side of the road which does not have any safety issue whilst the side of the road where the wall was placed is un-curbed, un-guttered and essentially farm or bushland area, well away from the edge of the road, these would be factors which would be taken into account by a designer in recommending whether or not a fence should be put up back in 1979. Mr Bewsher thought it would have only a minor effect. The principal safety concern (as seems to me obvious) is the height of the headwall. Even if this headwall was located further away from the road than it actually is, Mr Bewsher would have regarded it as unsafe. In this regard he pointed to the fact that he had parked a car on the edge of the bitumen and observed that if a passenger had opened the door and taken two steps, he or she would have suffered a fall of three metres. He said this was clearly unsafe. Of course it was.

42. In this case the risk created by the wall alongside a road in a suburban area – albeit on the side of the road which is contiguous to bush and farmland – is so obvious that it does not admit of any nice or difficult calculation. In my opinion, no public authority properly considering the issue could reasonably conclude that it would be a reasonable exercise of its powers to decline to provide safety fencing at this site, despite the apparent widespread insouciance of councils (but not of engineers) at the time of its construction. At all events, by a time well before January 2011 the attitude to these risks had changed. I am satisfied that, when the defendant’s attention was again brought to the existence of the headwall (accepting, for the sake of argument, that it might have “forgotten” it, at the time of the inspections mentioned in the AMP, it would not have been regarded as reasonable by any authority in the defendant’s position to leave it unfenced.

The duty of care

43. It is therefore necessary to move to s 5B of the Act. I do not think it can be sensibly argued that the risk of someone falling over the verge was not foreseeable or that it was insignificant. The road was a public road, running alongside the edge of a significant suburban development and that, in the absence of a fence, a person might well not realise there was a substantial drop off the verge of the nature strip, even by day but certainly at night and, as a public road. It was likely to be used from time to time by nearby residents or, indeed, passing traffic, the risk being especially serious when light was limited as at dusk or, of course, night-time. Here, the precaution proposed was that of building a fence which, as I have pointed out, was simple and cheap to do. Subsection 5B(2) requires consideration of the matters enumerated in paragraphs (a) to (d) which, although non-exhaustive constitute a mandatory list of factors to which the Court is required to have regard. As in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 (to adopt the language of Leeming JA at [110]), the class of harm in the present case includes all injuries suffered from a fall which results in a pedestrian striking the rocky ground after a three metre fall. The probability that harm would occur if care were not taken by the erection of a fence to prevent someone from falling over the edge, is high. It is plain from the photographs that, even by day, it is not easy to see the edge, let alone the drop. At night, the verge itself would be very likely not noticed. Whilst it is not possible to predict how many pedestrians had walked along that particular part of the road and hence were exposed to the risk but fortunately did not go to the verge of the roadway, that a fall might occur is obvious in the absence of the precautionary safety fence. The physical injuries likely to follow from a three metre fall would be likely to be grave, possibly even fatal. The burden of taking precautions to avoid the risk of harm was on the defendant, which had created or was a party to its creation and was responsible for the wall. I do not accept the argument that a pedestrian such as the plaintiff should, even by night, contemplate that he might suffer a fall such as the headwall might cause. The construction of the culvert and the wall that supported the nearby roadway had a high social utility but this created the risk of harm in the absence of a safety fence.

44. It is rightly submitted that a road authority is not obliged to exercise reasonable care in the abstract, still less to ensure that a road be safe in all circumstances: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [46]. In this regard it is necessary to take into account that even reasonably careful people may, on occasions, act without advertence of risk or taking particular notice of their surrounds, especially where there is no reason to expect the presence of a particular risk of considerable danger, such as the unmarked culvert. It is necessary also to consider that the degree of thoughtlessness as well as the ordinary distractions to which people are subject when, as here, they are going about ordinary activities such as walking their dogs. Nevertheless, as Gaudron, McHugh and Gummow JJ said in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [160], “a proper starting point may be the proposition that the persons using the road will themselves take ordinary care”. Of particular help in the present case is, I found, the following passage from their Honours' judgment (omitting references) –

“[163] The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where … the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out … persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger … or the surrounding area (as … where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a ‘trap’ or, as Jordan CJ put it, ‘of a kind calling for some protection or warning’. … [The] care to be expected of members of the public is related to the obviousness of the danger. … [Even] an occupier of premises ‘is generally entitled to assume that most entrants will take reasonable care for their own safety’. Each case will, of course, turn on its own facts.”

45. Here, as it seems to me, there is no reason for the plaintiff to have apprehended the possibility that there might be as it were, a man-made cliff constructed in such close proximity to the road, the edge of which was, at all events, obscured by grass and some shrubbery as well as by darkness. Had he tripped over a tree root and injured himself the defendant would almost certainly not be liable but there was nothing here that might have suggested to the plaintiff (or indeed any pedestrian in his place) that he had any reason to fear that he might fall off the side of the verge. There is nothing in the circumstances here that suggests that the plaintiff did not take reasonable care for his own safety. On the contrary, I think that he was acting as any ordinary pedestrian might when walking their dogs. Of course it is trite that the enquiry is not to be undertaken in hindsight but must be answered prospectively.

46. It is submitted that the defendant could not have reasonably foreseen that a pedestrian, excising reasonable care for his own of her own safety, would walk through overgrown grass or bushes off to the side of a grassed verge without the aid of artificial light, such as a torch or even a mobile telephone. I do not agree. I am doubtful, at all events, that an ordinary torch would have revealed the drop. It would not be in the mind of a pedestrian that they might fall off the verge in the way that happened to the plaintiff. It was not suggested to the plaintiff that he was not keeping a reasonable lookout for where he was stepping. The evidence about the extent of the overgrown grass or bushes was exiguous but there was no suggestion that it was so dense as to prevent him seeing some obstacle or otherwise might constitute a danger. The danger here was, of course, the culvert. Although it is true that the plaintiff was walking at night-time, the evidence is not that he was in complete darkness. Nor was this put to him, though he agreed he could not see the ground. But he was able to see his dogs walking in front of him and, indeed, was watching them.

47. The defendant brought to my attention the judgment of Garling J in Benic v New South of Wales [2010] NSW 1039 where his Honour dealt with the phrase “not insignificant”. If I may respectfully say so, his Honour’s statement as to the appropriate approach is clearly right. The defendant correctly submits that the mere possibility that serious harm might be caused as a result of an accident is insufficient to fulfil the requirement. However here, as I have said, there was more than a mere possibility that a pedestrian might walk in this area and might not see the headwall drop. The defendant relies on the fact that there is no evidence of any notification to the defendant of any prior injury or incident involving the headwall. There is no evidence of this being the case. It is not known either whether any warning was given by someone who did not have an accident but came close. That does not seem to me to be of any real significance. As I have repeatedly stated, the mere position of the headwall and its character constituted a very serious and evident danger. The risk that a pedestrian might come across it and that he or she would fall and be seriously injured was substantial. Nor do I accept the submission that overgrown grass or bushes would have provided a natural barrier to a pedestrian walking along the path which would take the pedestrian well away from the edge of the headwall. I have already dealt with this argument. No such barrier existed. At all events, the circumstances of this accident, which were unremarkable and foreseeable, demonstrate that whatever vegetation present, it was not a suitable or adequate response to the danger.

48. I come now to s 5D of the Act which has the effect that, assuming a breach, a plaintiff must establish that the breach was a necessary condition of the harm he suffered. Putting it otherwise, had the breach not occurred the fall would not have happened. This is the “but for test” applicable under the section: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [55]; Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [132] per Tobias JA (Beazley JA agreeing). The plaintiff’s argument is that the accident would not have occurred had the defendant erected a fence preventing access to the edge of the headwall as was subsequently done. The headwall is, as I have described it, a flattened U-shape so that erecting a fence across the apex of the headwall would not have prevented the plaintiff from falling into it if, as the defendant submits the plaintiff appeared to assert, he approached the headwall from the side as he walked along the path, parallel to the edge of the road reserve. The report of Mr Bewsher referring to the safety fence states that it was “erected on the grass verge between the headwall and the roadway bitumen… [and was] located 0.3m from the face of the headwall”. A photograph was tendered as part of the report which appears to cover an area extending past the apex of the headwall, as submitted by the defendant, but the photograph is not clear enough for this to be positively stated. As I read Mr Bewsher’s report, the fence extended along the length of the headwall. He was not cross-examined on this question. Furthermore, a photograph tendered by the defendant shows the fence close to the wall with no room to pass behind it. There is no adequate evidentiary basis for the submission as to the placing of the fence or, for that matter, for the submission that he would have, as it were, edged along the edge to more or less the centre of the apex, from which point it is evident he fell. It is true that the plaintiff approached the headwall from the side but he was not cross-examined to suggest that he had walked along the edge or taken a path that would have taken him behind the fence. At all events, the question is not whether the fence that has now been erected would have sufficed to prevent the fall but whether the fence that ought to have been erected would have done so. I am satisfied that this is the case.

49. I now come to the question of contributory negligence. It seems to me that of particular significance is the requirement in para 5R(2)(b) that it is necessary to determine the question “on the basis” of what the plaintiff “knew or ought to have known at the time”. Here, there can be no doubt that the plaintiff did not know of the presence of the headwall nor was there anything that suggests that he ought to have known of its presence. The mere fact that he was walking by night in an area where his view of the ground was obscured both by darkness and the presence of vegetation naturally exposed him to some risk that he might miss his footing or stumble over a tree root or perhaps injure himself on some item carelessly abandoned there by some member of the public, but there was no reason that he might think that he was walking close to the edge of a culvert. In my view, the plaintiff acted as an ordinary reasonable person might when taking their dogs for a walk alongside a public road where there was a grassed verge. He was not careless for his safety. He was not like the pedestrian in Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97 who was aware of the likely presence of motor vehicles on the road which he was crossing and did not take adequate care for his own safety. The plaintiff was not guilty of contributory negligence and there should be no deduction from his damages on this account.

Physical Injuries

50. The plaintiff’s statement of claim alleges that he had broken his lower legs, his left wrist was badly splintered and bone misplaced, four of his ribs were fractured and he sustained severe bruising to the left knee which was badly swollen. The plaintiff alleges that a plate was inserted in his left wrist to hold the bone fractures in place and he was told that this might have to remain indefinitely and he might not have the full function and strength of his left wrist for the rest of his life. The plaintiff remained in hospital until 9 February and was released to home with special crutches, needing a wheelchair to assist with mobility around the home. In an evidentiary statement dated 29 June 2016 and tendered in the trial, the plaintiff listed the following injuries: broken legs; fractured left tibia; fractured right tibia; broken wrist requiring reconstruction with titanium plate support; fractured left radius; broken ribs; severe bruising and tissue damages to both knees and legs; head injury (possible concussion); Post Traumatic Stress Disorder and exacerbation of previous depressive disorder. The Westmead Hospital imaging exam report of 30 November 2011 shows the following –

Left hand and wrist: A comminuted fracture of the left distal radius involving the intra-articular surface. It appears to be impacted into the radial shaft. There is also a fracture of the ulna styloid.

Left elbow: no acute fracture or dislocation is identified. No joint effusion is seen.

Chest: The lungs and pleural spaces are clear. No rib fractures can be identified.

Pelvis: No acute fracture or dislocation is identified at the bony pelvis. The hips appear grossly intact, however, if there is an ongoing concern for hip fracture then further Orthogonal views are suggested.

Left Knee: No acute fracture/dislocation identified. No joint effusion is evident.

Right Ankle: There is a vertical fracture through the distal right tibia that appears to extend into the articular surface at the ankle mortise. There appears to be minimal displacement. On the Lateral film, there appears to be a component of the fracture coursing anteriorly at the diaphyseal metaphyseal junction. The precise nature of this fracture can be further assessed with a CT scan.

Well, the prime criteria is what we call the stressor A criteria. That is the criteria which refers to an individual experiencing either threatened death – they think they are about to die. For example have a gun placed to their head. They have a significant trauma. They have sustained seriously injury so they are overwhelmed with fear and in the old category it used to be overwhelmed with fear where they are rendered helpless and powerless and in horror; that criteria since gone with a new classification, where they have undergone some significant sexual violence. Those are the extent of the degree trauma that is required for the diagnosis for PTSD. They may continue to experience the traumatic events subsequently and they have these dissociative flashback episodes accompanied by marked emotionality and ongoing sleep impairment.

…

Q: Doctor if you had recorded a history that after he had regained consciousness and came to his senses etcetera that as he was laying in the pit he had given up hope of being rescued, he thought he would die there, would that in any way alter your opinion?

A: Yes, if he was lying there and had a sense, to use the old criteria, of helplessness and powerless and couldn’t do anything, was overwhelmed with the actual trauma of the fall, yes, that would come within the old-fashioned diagnosis, yes, but as I said I didn’t get that history.

73. Dr Smith went on to explain that trying to ring his wife and having concern for his dogs and ringing triple-0 and guiding the ambulance officers was inconsistent with the feeling of hopelessness and despair; he was not helpless.

74. The plaintiff said (in questioning the doctor) that he had said to him –

I made first call to triple-0 after I called my wife. Then called triple-0. Then what seemed like an eternity. Nothing was happening, so I rang back, so two or three phone calls later eventually I guided them to there and so on. I believe I went through that in detail with a Dr, including how I felt at the time, as soon as I regained consciousness and the thoughts that were going through my mind along the way.

HIS HONOUR

Q: Do you recall him telling you that doctor, words to that effect?

A: No I can’t – I can’t recall that.

PLAINTIFF

Q: Do you not remember me saying that I was afraid that I was never going to be rescued down there and I was afraid that I was going to die down there? Do you not recall me saying those things or words or things to that effect to --

A: I don’t – I don’t recall, I don’t recall that. I remember you telling me you called – you made a number of calls and you waited.

Q: So you don’t remember me describing my distress…?

A: No. You’re asking what I recall. It’s some time ago. I can’t remember every commentary you made. I’m not – my memory is not bad but it’s not that great …

75. Dr Smith said that, although the plaintiff may have woken up in a nightmare and sweating and had dreamt that he had taken a step and fallen into a hole, that this was not the definition of a flashback. He said that the plaintiff did not describe what he deemed to be a true dissociative flashback episode.

76. Dr Smith agreed that the treating doctors, such as Dr Robertson and Dr Henson have an advantage of a longitudinal perspective of a patient’s clinical process, he considered that there was significant weight of contrary information that went against their opinions and, despite their advantage, it was not sufficient to lead him to defer to their view. Dr Smith “conceded that if indeed that was true that he was overwhelmed at times with feelings that he would die, that would equate [to the clinical criterion]… but I didn’t get that history. I didn’t get the feeling, tone of a Post-Traumatic Stress Disorder situation” and the doctor (justifiably) referred to his active involvement in the PTSD programs at several hospitals. He said that “there is a tone, a general tone, a tenor associated with patients who have Post Traumatic Stress Disorder. They present very differently to Mr Oberlechner’s presentation”.

77. I asked the doctor whether he had asked the plaintiff what he was feeling and what thoughts went through his mind when he woke up to the time that he was rescued. Dr Smith said –

No, I didn’t go through extensive detail. I was more focused on how he was functioning and operating now, and from my perspective, at the time I examined him I came to the conclusion there was no clinical evidence, no definitive evidence that he has, at the time I examined him, experienced Post Traumatic Stress Disorder.

78. On 16 April and 1 May 2015 the plaintiff attended for examination by Dr Jane Lonie, Clinical Neuropsychologist, pursuant to Dr Henson’s request for an assessment and opinion of a potential Acquired Brain Injury. The history that the plaintiff gave to Dr Lonie was inconsistent with that which he had previously given on a number of occasions, in particular, that his first recall after the fall “is of the ambulance arriving and ‘cutting him out’”. He has referred, as I previously mentioned to recovering consciousness, discovering his injuries, attempting to telephone his wife, ultimately contacting the ambulance and directing them to his location. Given the fact that he had given these details on a number of earlier occasions it is not clear why his account changed to Dr Lonie but he was not cross-examined about it and, aside from noting the inconsistency, I draw no inferences from it. Otherwise the history of the effects on him of the fall is not significantly different from other accounts. The hospital notes which were provided by the plaintiff to Dr Lonie, which recorded a denial of losing consciousness or suffering any head injury in the fall. Dr Lonie’s neuropsychological findings were as follows –

Mr Oberlechner was oriented, appropriate and cooperative. His mood and affect, overtly speaking, appeared normal. Despite this, he endorsed extremely severe levels of depression and anxiety (i.e. levels that could be expected to be seen in less than 0.05% of the general population) together with severe stress levels. He is also endorsing a large number of psychological symptoms that are in keeping with Post-Traumatic Stress Disorder, including as … [as Dr Henson noted], thoughts of an intrusive nature and avoidance behaviours.

Results of the standalone and imbedded measure of effort that were administered suggest that Mr Oberlechner gave his full effort to the cognitive tasks he undertook.

79. Dr Lonie noted that the plaintiff performed, for the most part, at average levels for a man his age but the speed at which he was able to complete low-level tasks was variable, ranging from low-average to average whilst his performance on measures of ability to learn and retain new information of a verbal nature was variable and he displayed some mild consistent difficulties taking on board, or registering new verbal information when it was presented to him in an unstructured format for the first time. This rate was mildly deficient while his ability to recall newly learned verbal information ranged from average to mildly deficient. Dr Lonie thought it was unclear whether his fall was associated with any loss of consciousness. There was no neuroimaging evidence of brain trauma and no other relevant symptoms. What she described as his “mild cognitive difficulties” were observed inconsistently across different measures of similar functions likely related to lapses in his attention as opposed to impairment of his ability to retain new information as such. She pointed to the possible significance of his current mood and state, that is to say, as I understand it, his severe depression and anxiety and possibility his alcohol consumption and possible contribution of sleep apnea to his cognitive complaints.

80. After carefully examining the reports and the plaintiff’s own consistent accounts of what he felt at the time he recovered consciousness, I am satisfied that it would be highly probable, had Dr Smith asked him about what he was feeling after he fell, that he would have given the same history as I have summarised and they refer to. After all, there was every reason for him to do so. I am therefore satisfied that Dr Robertson’s surmise that Dr Smith had not sought a detailed history which might have disclosed what Dr Smith himself agreed satisfied at least one (I think the major one) of the diagnostic criteria. So far as Dr Henson’s diagnosis of PTSD resulting from the plaintiff’s “burnout”, is concerned, I note that he saw him for the first time in August 2013, well after the fall, whilst Dr Robertson had also seen the plaintiff on many occasions before that event. For those reasons, I prefer Dr Robertson’s opinion that, although the plaintiff suffered Major Depression with melancholia as a result of the crisis at his employment, he did not have PTSD at that time. I am persuaded that it should be concluded that the plaintiff suffered and suffers from PTSD as a result of the fall.

81. I should mention, also, that although, in the result, I do not think it has been established that the plaintiff suffered from Acquired Brain Injury as a result of his fall, I am satisfied that he had been rendered unconscious. This is the only conclusion that makes sense from the plaintiff’s account of what happened and the times involved.

82. Returning to the plaintiff’s account, in evidence he said that he thought it was 10 or 15 minutes or so after he had woken up and had the feeling that he was going to die that he found that he could move his right hand and noticed his telephone in his pocket. That was when he tried to ring his wife, who did not answer and then triple-0. I do not think it significant that he did not tell the ambulance officers or, apparently, staff at the hospital that he had lost consciousness. I think he was very confused and considerable pain and his loss of consciousness only really was appreciated by him once he had an opportunity to think about the time that elapsed between his leaving home and his making the triple-0 call (of course, evident from his telephone memory).

83. After Mrs Oberlechner went about her ordinary routine, she went to bed, although her husband was not home, as he would normally just return when he had finished his walk and go to bed. She said that she was awoken sometime in the early hours after midnight by a knock on the door by ambulance officers telling her of the accident and bringing her to the injured dogs. She was taken to the accident site and was there when the plaintiff was retrieved from what she described as the stormwater pit and taken to Westmead Hospital. The ambulance records show the job was booked at 12.34am. Putting the times and distances together, it seems likely that the plaintiff was likely to have been unconscious for an hour or so followed by a period when he was dazed and then managed to make the calls.

84. (I should mention that the ambulance notes state that he appeared to be tipsy. The plaintiff was not cross-examined as to this and this may have been a surmise if there had been a smell of alcohol on his breath and, because of the accident he seemed confused, not altogether an unlikely possibility. However this was not an issue in the case and there is no need to further discuss it.)

Work capacity

85. It seems reasonably clear from the medical evidence and is consistent with the plaintiff’s evidence that, before the accident, although there had been some improvement in his chronic depression, the plaintiff was certainly unable at that time to return to his earlier work as a computer expert. I accept that he was undertaking some lawn mowing and gardening work, with his wife’s assistance during the time he was disqualified from driving (which occurred in March 2010, for a three year period). He said that for some months before the accident he had 20-25 regular customers for whom he was doing gardening and lawn maintenance work, although he had not submitted a tax return because, after the accident “I just let everything go”. The plaintiff told Dr Harvey that he did no work from 2001 until about 5 months before the accident, when he began his own business lawn mowing and gardening and, by the time of accident he was working about 40 hours per week, although the hours were very variable. He also said that he was doing some casual computer support which occupied him 10-15 hours per week. It may be that he was attempting to obtain some work but I am satisfied he in fact did not do this work and, indeed, that he would not have had the capacity to do so. (He was not cross-examined on this history, I think because (rightly) it was seen as immaterial.) He hoped also to return to IT work by getting the equipment he needed “and skilling himself up”. He printed some brochures on his computer. He purchased some computer equipment and said that he kept receipts for this. However, his evidence about this was rather vague. I asked him –

HIS HONOUR

Q. What was it? What was the equipment?

A. Just some different computers--

Q. I understand that. What was it?

A. --and software, and that's about it.

Q. Yes. What was it though, precisely?

A. Just a couple of different computers.

Q. Yes. What sort of computer?

A. Macintosh or other computer, you know, like--

Q. What other computer?

A. A laptop, things like that.

Q. What brand?

A. Toshiba is the laptop brand, then iMac, then other brand like just - I bought components for building a couple of them myself.

Q. Where did you buy the computers?

A. Most of them I bought on an online outlet.

Q. How did you pay for them?

A. Through card I think.

Q. Credit card?

A. I believe so.

Q. So you would have credit card details of those purchases?

A. They would be - yes, I can dig up the records of those things. At one stage I had them all in a bundle. I probably can still find it but I don't remember being asked for any of that.

(Mr Gambi asked him to locate the documents and bring them to Court the next day and he said that he would do so. In the result, however this did not occur and the matter was not pressed.) He said that he had also printed up brochures and business cards, paying someone to do this and again said that he would bring the relevant information to Court the following day (with the same outcome). He said, however, that he had not earned any income from the IT work that he was attempting to re-establish, saying, “It was only in the building-up stage”. After the accident, he did not continue with the development of that business although he had recovered to the extent, he said, that he was in or felt he was in the same state as immediately before the accident. He said that he did not remember whether he had sent out any material to prospective companies in relation to his IT business –

Q…did you at any time after the road incident send out advertising or promotional material to companies in order to try and get IT work?

A: I can’t recall exactly but I may have. I may have. I just – I know I prepared some stuff and there was – a can’t recall precisely but there was ---

He was shown a covering letter of 22 May 2013 referable to a brochure advertising his skills as an IT consultant and agreed that he had sent it out. His evidence was somewhat unclear about this but I think its effect was that this was very much an aspiration without any real expectation that he would either get work or be able to undertake it. He said –

I would go through ages of maybe feeling good one day and sort of – and so you would produce a letter like this and send it out, but then the next day it’s, ‘Oh well’ – it’s like, ‘I can’t do this’. Like, you know, the hopelessness is there again, so – but look, yeah, I had spurts, sporadic periods of, yeah, I can get myself up but it’s like I wasn’t really that – it wasn’t happening… I thought I could try but it wasn’t happening.

86. He described starting to feel “reasonably good” after years of seeing therapists and taking medication and so on, “where, yes, I am going to have another go at life now and things, but when something like the accident happened, it just throws you right back to – in the back in what like feels like a hole, literally, like a mental hole”. The plaintiff gave no evidence that suggested that, apart from acquiring computer equipment he had made any attempts for retraining, either by taking a course or purchasing texts or other relevant material.

87. He said to Dr Gibian, as at 23 August 2012, that he was working mowing lawns, driven by his wife but that there was no work in winter and it had been too wet in summer for much work. In her notes of 9 September 2012, Dr Gibian said the plaintiff “was working a little over summer [and with his wife’s] urging and transport, he was mowing a few lawns. Of course this petered out in winter. He is due to get his licence back in March 2013. I urged him to consider returning lawns and gardening to keep the few customers he already has, and look forward to building his business once he can drive again”.

88. In my view, prior to the accident, there was no prospect except in the most unlikely event that his mental condition improved to a considerable degree, that he would have been able to undertake anything like the work he had previously done. I think that, at least at one level, he accepted that it was at least improbable that he would be able to undertake that work even if, on a good day, he genuinely hoped and perhaps to some degree believed that he might be able to do so.

89. I accept the plaintiff’s evidence about the accident and its psychological sequelae as having a significant impact on his capacity to work and his hopes and aspirations and that it did constitute a worsening of his mental functioning and increased the severity of his depression. For the reasons which I have already expressed, I also accept that the accident caused the additional burden of PTSD. However, even had it not been for the accident and the PTSD, I am not persuaded that he would probably ever have been able to regain the capacity even for part-time clerical work, let alone require the specialised knowledge necessary to work in the IT field or return to his previous level of expertise. In short, I think the probability is that, even had the accident not occurred, he would not have developed the capacity to do more than what I conclude – on the whole of his evidence – was seasonal and somewhat desultory lawn maintenance and gardening work, to a significant degree less than that which he was able to eventually do prior to the accident.

90. There is no evidence from the plaintiff as to what he earnt as a result of his lawn maintenance and gardening business, nor even as to the hours that he actually worked, except for what he had said to Dr Harvey and Dr Gibian. This problem is discussed by Heydon JA in New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 (“Moss”) at [66] et seq. In particular, I note the observation quoted by his Honour of Reynolds JA in Yammine v Kalwy [1979] 2 NSWLR 151 at 155 that “a tribunal of fact can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity” which, as I see it, must also apply to the judgment and assessment of the value of the remaining capacity. Heydon JA in Moss (at [71]) pointed to the process of estimation of possibly as “an imprecise and indeterminate one to be carried out with very broad parameters…[and the] trier of fact may have to form conclusions on ‘slender material[s]’” (referring to the majority judgment of Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643; [1990] HCA 20). This will sometimes involve “guess work rather than estimation”: Menzies J in Jones v Schiffmann (1971) 124 CLR 303 at 308.

Past economic loss

91. To sum up the position, the plaintiff was able to undertake lawn maintenance and gardening work for 20-25 clients on a seasonal basis for about 40 hours a week but this was very variable; how many hours this averaged, say, in a month, or how much of the year the work was available can only be guessed at. He had no relevant physical disability before the accident but was affected by a severe depressive illness. Taking into account the extent to which his illness would have adversely affected his ability to go into the marketplace to obtain work and because it seems clear his capacity to maintain social relations and accept direction was also somewhat limited but noting that being able to maintain a client base of 20-25 bespeaks some ability at organisation and drive to and keep find work, I would conclude, doing the best I can, that he had the capacity to work, on average, about half a week but this work would only have been available for about eight months a year. I consider that the plaintiff would most likely have continued this work had it not been for the accident. I have referred to his hope that he could return to working in IT, to which he had been directing some of his energies before the accident, but I regret to say I think that this was a most unlikely real possibility. Accordingly, the relevant work capacity as at the accident was that which enabled him to undertake the lawn maintenance and gardening which I have described and which he would have continued. Having regard to the physical consequences of the accident, some of which linger and affect his ability for the physical work, such as lawn maintenance and gardening must necessary entail, together with the added disability inflicted by his PTSD, I consider, for all practical purposes, that the plaintiff was, after the accident, practically incapacitated from anything more than occasionally able to earn only inconsequential sums.

91. In the absence of direct evidence, I think it is appropriate to calculate his economic loss by reference to male Average Weekly Earnings (rounded to the nearest dollar). As at 17 February 2012 this was $1233. I think that, accepting a measure of increase from 29 January 2011 at about 5 per cent, yields average weekly earnings of about $1170 (hence a capacity to earn about $585 a week as at the date of his accident). Subsequent figures are, as at 18.5.12, $1228, as at 16.11.12, $1265, as at 17.5.13, $1286, as 15.11.2013, $1307, as at 16.5.14, $1316, as at 21.11.14, $1320, as at 20.11.15, $1367 and as at 20.5.2016, $1386.

92. For past economic loss I think the most reasonable calculation should be based on the average of AWE from the date of the accident to judgment, namely $1300, one half of which is $650, thus 209 weeks (the total reduced by one third to account for the four months each year not working) at $650 a week, giving $135,850.

Future economic loss

94. It is necessary to refer to s 13 of the Act which provides –

13 Future economic loss—claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

95. A peculiar feature of the plaintiff’s position constitutes a very significant matter for considering his future, namely the difficult evidence concerning the plaintiff’s life expectancy, which has become problematic because of his diagnosis in late 2015 of Idiopathic Pulmonary Fibrosis. He has not yet, as I understand the evidence, been accepted as an appropriate patient for lung transplantation but, as Professor Bryant points out, at that point, the waiting time is somewhere between six and eighteen months with 10-15% of patients either becoming so sick the transplantation becomes impractical or they will die from their lung disease before a transplant becomes available. Professor Bryant infers from the diagnosis that it is sufficiently severe for a lung transplant to be considered and that the plaintiff’s treating doctors have assessed his life expectancy at no more than two-three years. In patients with lung transplants aged between 50-60 years (as is the plaintiff, now aged 53 years), 83% of lung transplants in Australia survive for one year, 67% will survive for three years and about half will survive for five years. It is not possible to calculate, even on the broadest basis, the likelihood that the plaintiff will be accepted as a patient for lung transplantation. It is clear, however, that his life expectancy has been markedly reduced by a lethal condition. I think the most reasonable basis for calculating this factor is to accept that he will be placed on the waiting list, though with a significant risk that the operation will become impractical or he will die from his disease before a transplant becomes available. Arithmetically, the probability (assuming he is placed on the list) he will survive for one year is about 75%, for three years about 50% and for five years about 25%, is, of course, the product of 88% (to take the mid-point of the chances of surviving to have the operation), and, successively 83%, 67%, and 50%. Were he to survive for five years, however, I would accept, in the absence of any evidence as to survival rates after this period, that he would live to 70 years, though this is significantly less than the life expectancy of the general male population. Though the likelihood of his reaching a five year survival is not high, it is far from trivial or inconsequential. It is important, in this respect to bear in mind that it is a category error to apply the probabilities of a class to the probabilities affecting an individual who is a member of that class. (Of course, if he happened to be, at each stage, in the percentage that survived, this would mean that, for him, there was a 100% chance of survival.) The plaintiff’s life expectancy is relevant at this point because there is a real likelihood that he will not survive to work for as long as otherwise would have been the case, had the accident not occurred.

96. It is necessary also to bear in mind, on the assumption that he is placed on the transplant list, that he will almost certainly have been incapacitated for some period before any operation and, if he survives to obtain a transplant, a lengthy period of convalescence. There is no evidence on these points and I must do the best I can with the benefit of ordinary lay experience and common sense. I conclude that the likely period of inability to work would, overall, last about 18 months; accordingly, this period must be excluded from the future economic loss for which he is entitled to compensation (necessarily limited to limitations of work capacity caused by his accident). Under 13(2), “the amount of damages for future economic loss that would have been sustained on” the assumptions about future earning capacity or other events on which the award is to be based must be adjusted “by reference to the percentage possibility that the events might have occurred but for the injury”. The estimated 18 month period to which I have referred is inevitable if the period over which he is to be taken to have suffered future economic loss extends more than one year. As I consider that, but for the accident, and in the event he obtained and survived a transplant, he would work to about 60 years of age, it is necessary to apply a deduction for vicissitudes. In the circumstances, it is not sensible to calculate this separately from the risks of not surviving more than five years because of his medical condition. Overall, I consider that the appropriate percentage of the likelihood that the plaintiff’s future circumstances would, had it not been for the accident, have permitted him to work in the way he was working at that time until the age of 60 years is 60%. (In this case, there is no distinction between the percentages required to be specified under subsections 13(2) and (3)).

97. The appropriate mode of calculating future economic loss is to take the average AWE as stated above, namely $650 or $33,800 pa with the 5% multiplier for five years six months (seven years less than the 18 months period to which I referred above) being 251.5, resulting in the present value of $163,475. Applying the 40% discount for, in effect, exigencies, yields the sum of $98,085 as the present value of future economic loss.

Domestic assistance

98. I accept the defendant’s submissions that there is no evidence to justify the conclusion that, on the probabilities, he needs 6 hours or more per week of domestic assistance on a continuing basis for 6 months. There is no evidence as to past assistance, nor does the evidence justify an allowance for future domestic assistance.

Non-economic loss

99. This head of damages is to be determined by reference to Div 3 of Part 2 of the Act, s 16 of which requires, at the outset, a finding of severity of the loss of at least 15% “of a most extreme case”, in which event the maximum amount that can be awarded is now $605,000. Here, I am satisfied that the continuing physical discomfort and limitations, which have the effect of preventing the plaintiff from undertaking even that level of gainful employment which his psychiatric illness left him, and the exacerbation of his illness by PTSD, involve a severity of loss greater than 15% of a most extreme case. To this should be added the excruciating pain and extreme anxiety he first suffered in the hours following his fall (which substantially caused his PTSD that, in turn, with the physical consequences, negatively impacted on his residual capacity for work, as I have mentioned). In Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370, Basten JA said (in a passage approved in Hall v State of New South Wales [2014] NSWCA 154 at [30]) –

The importance of the distinction is that the assessment of general damages, now being reduced by statute to a determination of the severity of the injuries as a proportion of a most extreme case, involves no translation of pain and suffering into a cash payment, but is rather to be compared with the assessment of the restrictions imposed by the injuries on the plaintiff's pre-existing earning capacity. By s 13(3) it is necessary to fix the appropriate sum by reference to the Table it contains …

100. I would assess the severity of loss at 30% of the most extreme case. The result is that the amount to be awarded under this head is 23% of $605,000, namely $139,000 rounded in accordance with s 13(4).

Out of pocket expenses

101. Past expenses have been agreed at $3,705. For the future, it is necessary to make an allowance for the ankle operation recommended by Dr Newman. It is agreed that the appropriate sum is $4,000. Out of pocket expenses therefore total $7,705.

Judgment

102. I give judgment in favour of the plaintiff in the sum of $380,640 plus interest calculated in accordance with s 18, plus costs.

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Amendments

09 February 2017 - Para [44] 'Honour's' amended to 'Honours''.

Para [90] 'Hayden JA' amended to 'Heydon JA'.

Para [90] deletion of the word 'the'.

Para [91] 'effected' amended to 'affected'.

Decision last updated: 09 February 2017