Perrett v Sydney Harbour Foreshore Authority; Wine and Vine Personnel Pty Ltd v Sydney Harbour Foreshore Authority

[2009] NSWSC 1026

CITATION:	PERRETT v SYDNEY HARBOUR FORESHORE AUTHORITY; WINE & VINE PERSONNEL PTY LTD v SYDNEY HARBOUR FORESHORE AUTHORITY [2009] NSWSC 1026 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18-22 May 2009
JUDGMENT DATE :	30 September 2009
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
DECISION:	In proceedings 20429/06: (1) That there be a verdict and judgment in favour of the plaintiff in the sum of $735,667.07. (2) That the defendants pay the plaintiff’s costs of the proceedings. In proceedings 20528/08: (1) That there be judgment for the plaintiff in the sum of $223,308.93.
CATCHWORDS:	PRACTICE AND PROCEDURE – pleadings – whether statutory and common law defences to negligence adequately pleaded - NEGLIGENCE – breach – whether owner and/or occupier negligent where stairs not clearly delineated – whether placement of sign contributed to risk of the plaintiff failing to notice stairs - NEGLIGENCE – whether risk was an obvious risk – whether obviousness of risk under s 5F of the Civil Liability Act is relevant to questions of breach of duty under the common law – whether a finding that the risk was obvious precludes a finding of liability in negligence - NEGLIGENCE – defences – voluntary assumption of risk - NEGLIGENCE – defences – s 5H defence – no proactive duty to warn of obvious risk – whether risk was obvious - NEGLIGENCE – defences – s 5I defence – whether risk was an inherent risk - NEGLIGENCE – defences – s 5K defence – whether activity engaged in was a dangerous recreational activity - NEGLIGENCE – defences – contributory negligence – whether plaintiff contributed to harm by contributory negligence - WORKER’S COMPENSATION – whether employer entitled to indemnity from tortfeasor – whether employer entitled to interest on workers compensation payments made to plaintiff
LEGISLATION CITED:	Civil Liability Act 2002 Evidence Act 1995 Workers Compensation Act 1987
CATEGORY:	Principal judgment
CASES CITED:	Arthur Robinson (Grafton) Pty Ltd v Carter (1970) 122 CLR 649 C Van der Lely NV v Bamfords Ltd (1963) RPC 61 Carey v Lake Macquarie City Council [2007] NSWCA 4 Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 Fitzgerald v Dansey [2001] NSWCA 339 Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; (1999) 47 NSWLR 263 Howard Rotavator Pty Ltd v Wilson (1987) 8 NSWLR 498 Jefford v Gee [1971] All ER 1202 Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270 Short v Barrett [1990] NSWCA 164 Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407 Tollhurst v Cleary Brothers [2008] NSWCA 181 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES:	Ian Perrett (Plaintiff) (20429/06) Sydney Harbour Foreshore Authority (1st Defendant) (20429/06) Darling Harbour Convention and Exhibition Centre Pty Ltd (2nd Defendant) (20429/06) Wine & Vine Personnel Pty Ltd (Plaintiff) (20528/08) Sydney Harbour Foreshore Authority (1st Defendant) (20528/08) Darling Harbour Convention and Exhibition Centre Pty Ltd (2nd Defendant) (20528/08)
FILE NUMBER(S):	SC 20429/06; 20528/08
COUNSEL:	Mr J Rowe (Plaintiff) (20429/06) Mr M Jenkins (Plaintiff) (20528/08) Mr M McCulloch SC/Mr S M Kettle (1st & 2nd Defendants)
SOLICITORS:	Miller Noyce Solicitors (Plaintiff) (20429/06) Turks Legal (Plaintiff) (20528/08) General Insurance Law Department (1st Defendant) HWL Ebsworth Lawyers (2nd Defendant)

- 36 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

30 SEPTEMBER 2009

20429/06 PERRETT v SYDNEY HARBOUR FORESHORE AUTHORITY & ANOR

20528/08 WINE & VINE PERSONNEL PTY LTD v SYDNEY HARBOUR FORESHORE AUTHORITY & ANOR

JUDGMENT

1 HER HONOUR: Mr Ian Perrett operates a specialised recruitment business in the wine industry. The business is conducted through a company, Wine & Vine Personnel Pty Ltd. Mr Perrett is employed by that company and is also its sole director. Wine & Vine is engaged by wine companies to identify and recruit executive level staff such as wine makers and vineyard managers.

2 On 1 July 2005, Mr Perrett went to the Convention Centre at Darling Harbour during the Good Food and Wine Festival for the purpose of interviewing a potential recruit. As he was leaving the Convention Centre following the conclusion of the interview, Mr Perrett fell down three steps in the foyer, sustaining relatively serious injuries. He now claims damages for negligence against both the owner and the occupier of the Convention Centre. He contends that, owing to the uniform appearance of the tiled surface of the area and the absence of edging to delineate the presence of the steps, they were difficult to see when approaching from the direction from which he came, and that he did not in fact see them. Mr Perrett further contends that the location of a sign affixed to a column at the foot of the steps required him to look up as he was walking towards the steps, contributing to his failure to see them.

3 In separate proceedings, Wine & Vine seeks an indemnity from the same defendants pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 in respect of compensation payments made by it to Mr Perrett. Both proceedings were heard together and an order was made that the evidence in each proceeding be evidence in the other.

4 Mr Perrett sued Sydney Harbour Foreshore Authority as the owner and occupier of the Convention Centre and Darling Harbour Convention and Exhibition Pty Limited as the occupier and manager of those premises. By its amended defence, Sydney Harbour Foreshore Authority admitted that it was the owner but denied that it was the occupier of the premises. Darling Harbour Convention and Exhibition Pty Limited did not admit that it was the occupier and manager of the premises. The defendants were at that stage separately represented.

5 At the outset of the hearing, however, I was told that as a result of negotiations between the defendants, senior counsel who had formerly represented Darling Harbour Convention and Exhibition Pty Limited would also appear for the Sydney Harbour Foreshore Authority and that there were no cross-claims between them. The defendants’ case was conducted thereafter on the basis that it was not necessary to differentiate between them, and the plaintiffs’ cases were conducted on the basis that, as owner and occupier, the defendants were, in the circumstances of this case, equally liable for the circumstances alleged to have caused Mr Perrett’s injuries (T235.40).

Circumstances of Mr Perrett’s fall

6 The Court held a view of the area in which Mr Perrett fell. It was noted by counsel that the appearance of the area had changed since the date of the accident, in that the tiles have since been replaced with blue carpet and the edges of the steps are now marked with black and silver trim. The sign has also been replaced with a larger, wider sign. The structure of the area remains the same.

7 Mr Perrett fell in the foyer area to Hall 1. It is convenient (but not quite accurate) to describe the three steps as running downwards from East to West. To the right of the steps also running from East to West is a ramp with a bright silver hand-rail. To the right of the ramp is a high wall that borders a large, wide flight of steps leading up to the next level.

8 At the foot of the three steps on the left hand side is a tall, wide column on which the sign was affixed. Owing to the width of the column and the point at which the sign was affixed to it, the sign was set beyond the top step. The sign that was in place when Mr Perrett fell was perpendicular to the downwards direction of the steps, so that a person facing West would be facing the sign (on my adopted premise that the relevant structures were precisely aligned with the points of the compass).

9 It was Mr Perrett’s case that he did not see the steps at all before he fell. That was disputed by the defendants. In order to consider the submissions put as to why I should not accept Mr Perrett’s evidence on that issue, it is necessary to set out the precise terms in which Mr Perrett described the circumstances of his fall (at T28.24, with corrections agreed at T107.40 and T108.24):

“A. The exhibition was in hall 1 and I left by a door on to the upper level, if you like, and found that that was some distance from where I believe the car park would be. I descended about 18 steps, and was looking for a sign to the car park. There was nothing there. So, I walked about 20 or so metres down to the far end of the flight of steps, looking basically left and centre, because there's no way I can could see up on the right because there was just a bank of steps. There were people around so I had to keep my wits about me. As I say, I was looking at the steps and I caught sight of a sign. That was the only sign which had virtually invisible (sic) from the direction I approached it. It was high. It was small. It was the same colour as the column that it was attached to and when I saw it, I turned to it. The writing was not very big on it and it had a number of directions. I took a step or two towards it to really understand where it was directing me to, and I fell down the steps.”

10 Mr Perrett’s assertion that the sign had been “virtually invisible” from the direction from which he approached may be understood by reference to the fact that, as I have noted, the sign faced East (so as to face a person facing West), while Mr Perrett was approaching from the North, with a high bank of steps on his right. As he walked South along the base of the large flight of steps, the orientation of the sign would, for a time, have precluded his view of it.

11 Mr Perrett indicated the path he took, and the point at which he turned towards the sign, on two photographs of the area, which became exhibits A and B in the proceedings. He said that he was walking and looking at the sign and he “went over the edge” (T34.40). He lunged to the right to try to recover his balance by holding onto the rail of the ramp adjacent to the steps but he was unable to stop his fall and fell towards the side of the ramp. He did not remember anything after that until he woke up on his back (T35.3).

12 Mr Perrett had not seen any other sign indicating the presence of the steps other than the sign he stepped towards just before he fell (T58.11). He conceded that it was “possible” that he had entered the Convention Centre via the same steps (two hours earlier) but was not sure about that (T61.36).

13 In cross-examination by Mr McCulloch SC, who appeared for the defendants, Mr Perrett said (at T61.25):

“I was looking basically left and centre. There were people around, and I guess I must have turned right, seen the sign, looked up to try and work out where, what directions it gave to the car park.”

It was put to Mr Perrett that he had started to turn towards the car park before he saw the sign, because instinctively he knew where the car park was, and that he looked up and saw the sign and fell at about the same time. He disagreed, saying that it was in fact the sign that caused him to turn towards it (at T65.39). He also disagreed that the existence of the change in level between the level on which he was standing and the lower level onto which he fell was quite clearly apparent (T66.2).

14 Mr Perrett was also cross-examined about the existence of the hand-rail adjacent to the ramp alongside the steps, and asked whether that provided any information to him. His evidence on that issue was as follows (at T66.9):

“A. It provided no information to me, because as I turned my attention was directed towards the sign and I just didn’t see the hand-rail until I started to fall.
Q. But it was nice and bright and shiny?
A. Yes it is nice and bright and shiny, but my attention was not directed towards it. I was past it.
Q. I suggest to you that the reason why you didn’t see it is because you had walked towards the car park level without looking around you at all and you just simply missed your step, what do you say to that?
A. No, I don’t agree with that at all.”

Mr Perrett was asked to identify the distance he was from the edge of the steps when he commenced to move towards the sign. He said that it was difficult to be certain, but he thought “about a metre, maybe a shade more” (T92.41).

15 In relation to the sign, Mr Perrett said that what he first noticed was that it had “a whole lot of directions on it” (T93.15). He said that he saw nothing in the sign to indicate that he was headed towards danger. He stated that his reason for moving forward was to get information (T93.36). He said he was in the process of reading the sign, but had not finished reading it, when he fell.

16 It was put to Mr Perrett that he had given a different version of events to an expert retained to give evidence on his behalf in the proceedings from the version he gave in court (the expert’s report was ultimately excluded). The expert had recorded: “Mr Perrett noticed a sign indicating that the car park was situated off to his right”. It was suggested, in effect, that the version given to the expert was to the effect that Mr Perrett had been able to read the sign while he was still proceeding South along the base of the long flight of stairs, whereas his evidence in the proceedings was that he had to turn right (West) towards the sign in order to read it and get an understanding of it. It was suggested that the statement made to the expert disclosed that he had appreciated, before he fell, that the message conveyed by the sign was that the car park was to the right. Mr Perrett said that he was unable to recall what he had said to the expert, but consistently maintained that he had to turn right in order to read the sign.

17 Mr McCulloch also suggested to Mr Perrett, in respect of his evidence (at T28) set out above, that when he said that he was “looking at the steps” he had inadvertently disclosed the fact that he had seen the very steps on which he fell.

18 As I indicated to counsel during closing submissions, I did not understand Mr Perrett to have said in his evidence in chief, inadvertently or otherwise, that he had seen the three steps before he fell. The full passage at T28 set out above, read as a whole, discloses in my view that when Mr Perrett said “As I say, I was looking at the steps and I caught sight of a sign” he had in mind the large flight of steps down which he had just walked, not the smaller flight on which he fell. The phrase “As I say” indicates that Mr Perrett was picking up on his earlier statement that, as he walked along the base of the large flight of steps (the steps being on his right), he was “looking basically left and centre” because all there was on his right was the bank of steps. Although his evidence was inconsistent as to whether he was looking “left and centre” or looking at the steps on his right, I think it is clear in either event that he was referring to the large flight of steps and not to the three steps down which he fell.

19 When Mr Perrett was shown the relevant extract of the transcript the following day, he appeared genuinely surprised to read what he was recorded to have said. He said that it did not make any sense to him, but reiterated that he did not see the steps before he fell (at T107.18-T108.3). I formed the impression at that time that his surprise was due to the fact that the words recorded in the transcript (as he read them the next day) appeared to be inconsistent with his genuine recollection of events, rather than embarrassment at having, as Mr McCulloch put it, “let the cat out of the bag”. I found Mr Perrett to be a forthright and consistent historian, and I accept his evidence as entirely truthful. I am satisfied on the balance of probabilities that Mr Perrett did not perceive the presence of the steps before he fell.

20 Mr Perrett called evidence from two witnesses who saw him fall. The first was Ms Catherine Mitchell. She had attended the Good Food and Wine Festival at the Convention Centre with a friend, Ms Therese Tsirekas and Ms Tsirekas’ young daughter. They had walked down the same steps (the three steps down which Mr Perrett fell) a short time earlier. Ms Mitchell described the steps as follows:

“Yes, they were tiled but shiny. They weren’t edged so you couldn’t see them. It was difficult to differentiate between the steps and the tiles that were going further on. It was all the same colour and I think because the lights must have been on or something, it was all a bit sort of glary so they were hard to see.” (at T131.27)

21 After walking down the steps, Ms Mitchell and Ms Tsirekas went to a stall at the end of the foyer to collect some wine they had purchased during the festival. As they were returning from the stall, Ms Mitchell heard a shout and saw Mr Perrett falling down the steps.

22 Mr Rowe, who appeared for Mr Perrett, attempted to lead evidence from Ms Mitchell as to her opinion of the safety of the steps in the circumstances, relying on the lay opinion rule under s 78 of the Evidence Act 1995. I excluded part of that evidence as not falling within the exception contained within that section, but admitted Ms Mitchell’s evidence that it was “difficult to see the edge of the steps and they were a bit shiny because they were tiles” (T136.24; see ruling at T268).

23 Ms Mitchell acknowledged that she had participated in the wine tastings at the festival to the extent that she would not have been fit to drive, but there was no suggestion that her level of intoxication had impaired her ability to observe the characteristics of the steps down which Mr Perrett fell.

24 Ms Tsirekas also gave evidence in the plaintiffs’ case. She described the steps as follows:

“That it was just all one colour. Just blending. There was no difference between - there was no markings on the stairs to tell the difference between the stairs and the floor.” (T143.38)

25 Mr Perrett also called evidence from Mr John Brown. Mr Brown had not attended the Convention Centre on the day on which Mr Perrett fell. He had, however, fallen down the same steps during a visit to the Convention Centre in September 2003.

26 Mr Brown described his accident as follows (at T148.15):

“Well, I was walking along and walking quite briskly because we had to get home and all of a sudden I just found myself walking in mid air. I had no idea there was stairs there. It all looked the same to me.”

27 It is, of course, important to bear in mind that the conditions in which Mr Brown observed the relevant area may have differed from those prevailing on the day Mr Perrett fell.

28 The plaintiff tendered two original photographs showing the steps from the direction from which Mr Perrett approached them (exhibit B) and facing directly down the steps (exhibit C). Those photographs were taken by the plaintiff’s wife, Mrs Perrett. The defendants tendered two similar photographs (exhibits 1 and 2).

29 Mr McCulloch reminded me of the need to take care in the use of the photographs as evidence of the appearance of the premises at the relevant time, citing Short v Barrett [1990] NSWCA 164. In that case, Meagher JA was critical of a trial Judge’s reliance on his own interpretation of a photograph of the railing on a balcony. His Honour stated that the trial Judge had overlooked “the sage advice” given by Lord Reid in C Van der Lely NV v Bamfords Ltd (1963) RPC 61 at 71:

“But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photographs in determining which of the explanations given by the witnesses appears to be most worthy of acceptance.”

30 Mr McCulloch did, however, rely on the photographs himself to demonstrate some matters. First, he noted that the photographs show that the tiles had, at the point of the “nosing”, what he described as “ribbing” running perpendicular to the direction of travel down the steps. The photographs are not clear enough to show the precise texture of the tiles, but I accept that there was some differentiation at the nose of the tiles on the top step. To my observation, however, the difference is subtle. It is impossible to form a view, from the photographs, as to the extent to which it would have been observable by a reasonable person in Mr Perrett’s position at the time he fell. Mr McCulloch also relied on the photographs as depicting a number of features of the area, such as the hand-rail alongside the ramp, which he submitted were visual cues to Mr Perrett as to the presence of the steps.

31 Separately, the photographs are consistent with the evidence of Ms Tsirekas and Mr Brown to the effect that the steps and the floor in front and beyond of the steps were all one colour and all looked the same.

Issues raised by the pleadings

32 The pleadings did not suffer from the common vice of being unduly prolix. Neither statement of claim extended to the detail of alleging the existence of a duty of care owed to Mr Perrett by the defendants. It was perhaps understandable, in that context, that the defences filed did not refer to that element of Mr Perrett’s cause of action. The defence was conducted, however, on the basis that there was no dispute as to the existence of a duty of care. The defendants were represented by experienced senior counsel who, when identifying the issues for my determination as he saw them, stated, “we no doubt have a duty of care” (at T228.33).

33 Accordingly, even though the existence of a duty of care was neither pleaded by the plaintiffs nor expressly admitted (in the pleadings) by the defendants, I took that to be an element of each plaintiff’s claim that was conceded by the defendants. I am satisfied that the defendants owed a duty of care to a class of persons that included Mr Perrett to take reasonable care to avoid injury. I agree with the view expressed by Hodgson JA in Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407 at [57] that the duty should be formulated in those general terms and that the determination as to what that duty requires in a particular case is a question of fact to be considered when addressing the question of breach.

34 The defendants deny that they were guilty of negligence and deny that Mr Perrett’s injuries were caused by negligence on their part. The defendants also allege contributory negligence on the part of Mr Perrett.

35 In addition, each defence stated that the relevant defendant “relies upon Division 4 of Part 1A of the Civil Liability Act 2002”. No point was taken on behalf of Mr Perrett as to the pleading of substantive defences in that form, but in my view that is not a sufficient pleading of the defences to which those provisions relate. The difficulties occasioned by a pleading in such short form were manifest in the present case.

36 Mr McCulloch’s closing submissions proceeded on the basis that the first issue arising for my determination was “the obviousness defence” (T222.14). He submitted that, “if the obviousness defence doesn’t apply”, I would then turn to determine whether there was a breach of duty by applying the principles stated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 to 48. Mr McCulloch concluded his submissions on that issue with the contention that the “intended scope” of the section (apparently in reference to s 5F of the Civil Liability Act) is “to exclude risks which are generally regarded as being obvious, hence the objective test” (T231.28).

37 The assumption implicit in Mr McCulloch’s approach appeared to be that, if I were satisfied that the risk that materialised when Mr Perrett fell was an “obvious risk” within the meaning of Division 4 of Part 1A of the Civil Liability Act, it would necessarily follow that the defendants were not in breach of any duty of care to Mr Perrett. The contention, if I have understood it correctly, appeared to be that, following the enactment of the Civil Liability Act, a person is not liable in negligence for harm suffered due to the materialisation of an “obvious risk” as defined in s 5F.

38 With great respect to Mr McCulloch, I think it inverts the process to begin by considering the application of the provisions of Division 4 of Part 1A. I do not accept that those provisions preclude a finding of breach of duty in respect of the materialisation of an “obvious risk” within the meaning of s 5F.

39 Assuming the existence of a duty to take reasonable care to avoid injury to persons such as Mr Perrett, the first task, in my view, is to determine whether the defendants breached that duty. That issue is determined by applying the Shirt calculus. It is well established that the obviousness of the risk to a careful pedestrian is a relevant factor in that determination: Temora at [31] per Giles JA. It will sometimes even be a dominant factor, but it is not conclusive: Temora at [41]. That was the law before the enactment of the Civil Liability Act, and in my view it remains the law.

40 If it is concluded that the duty of care has been breached, only then does it become necessary to consider any substantive defences relied upon by the defendants. If that point is reached, one of the elements of the defence of voluntary assumption of risk (assuming that is one of the defences relied upon) is that the plaintiff was aware of the relevant risk. Section 5G of the Civil Liability Act is an aid to proof of that element of the defence (if the risk was obvious within the meaning of s 5F) but does not, in my view, create a discrete statutory defence.

41 It is possible that the defendants did not intend to put a case that a finding that the risk was “obvious” would be a complete defence, but only that such a determination is a compelling factor against a finding of breach of duty. Even so, I think the preferable course is to adopt the approach I have indicated. Mr McCulloch took me to a number of authorities in which the obviousness of a risk has been taken into account in determining whether a defendant has breached a duty of care owed to the plaintiff. As I have already noted, there is ample authority to support that approach. However, Mr McCulloch’s submissions appeared to proceed on the premise that the statutory definition of “obvious risk” in s 5F of the Civil Liability Act now governs that question.

42 If I have correctly understood the way in which the matter was put by Mr McCulloch, his position was inconsistent with the analysis undertaken by McClellan CJ at CL in Carey v Lake Macquarie City Council [2007] NSWCA 4, where his Honour stated at [34] (my emphasis):

“In my opinion it was appropriate for his Honour to consider whether the risk that materialised was one that would have been obvious to a person exercising reasonable care for his or her own safety. As I have described below, whether a risk is obvious, in the sense of being readily apparent, is relevant to the question of whether or not the defendant has breached its duty of care. However, in the context of breach of duty, the statutory definition of an “obvious risk” in s 5F of the Civil Liability Act has no operation. That definition is expressed to be “for the purposes” of Div 4 of Pt 1A of the Act, which has the heading “Assumption of Risk” (note that under s 35(1)(a) the Interpretation Act 1987 (NSW) division headings are to be taken to be part of the Act). Accordingly, his Honour was correct in excluding ss 5F and 5G from his consideration of the question of breach of duty (see C G Maloney Pty Ltd v Hutton Potts [2006] NSWCA 136 per Santow JA at [101]). It is plain from the passage quoted above that his Honour only considered these sections so as to determine, in accordance with s 5H, whether the respondent had a duty to warn the appellant about the risk posed by the bollards.”

43 Mr McCulloch submitted that the statement by McClellan CJ at CL that s 5F has no role to play in respect of breach of duty ignores the role played by s 5H (at T269.11). I do not think, however, that McClellan CJ at CL intended by the remarks set out above to say that s 5F should be excluded from consideration of the question of breach of duty where the only breach alleged is a failure to warn. In such a case, a finding that the relevant risk was an “obvious risk” in the terms of s 5F, together with the operation of s 5H, will of course go directly to the question of breach of duty. That, however, is not this case. Mr Perrett relies on particulars of negligence other than failure to warn.

44 Mr McCulloch made “a formal submission” that the decision of McClellan CJ at CL in Carey is “wrong in as much as it seeks to confine ss 5F and 5G only to a defence of voluntary assumption of risk”. It may not have been strictly necessary for Mr McCulloch to put his submission in those terms, since his Honour was in that case alone in his analysis of those provisions.

45 McColl JA in Carey observed that McClellan CJ at CL had dealt with the case “as if” the respondent had pleaded voluntary assumption of risk as a substantive defence. Her Honour expressed the view that, since the case had not been argued at trial or in the Court of Appeal on that basis, that approach was not open (at [2]). McDougall J expressed a similar view and did not think it was appropriate, having regard to the way in which the case had been argued, to consider the “very difficult questions” raised by the interaction of s 5F and s 5G of the Civil Liability Act with the common law concept of voluntary assumption of risk (at [116]-[117]).

46 Accordingly, strictly speaking, Carey does not stand as authority that binds me as to the operation of s 5F and s 5G. In my view, however, the principle stated by McClellan CJ at CL in Carey set out above is plainly right. I do not think that Division 4 of Part 1A of the Civil Liability Act governs the determination of the question of breach of duty. There are four sections in that division. Section 5F sets out the statutory definition of “obvious risk”. Section 5G creates a statutory presumption as to the awareness of an injured person of an obvious risk. Mr Rowe submitted on behalf of the plaintiff that before the enactment of those provisions, it was almost impossible for a defendant to establish the defence of voluntary assumption of risk, due to the difficulty of proving the subjective condition of mind of a plaintiff. He submitted that the effect of s 5F and s 5G (and presumably their purpose) is to make it easier for a defendant to prove that element of the defence by relying on the statutory presumption, which imports an objective standard. That is consistent with the careful analysis of those provisions undertaken by McClellan CJ at CL in Carey at [70]-[90].

47 The third section in Division 4 of Part 1A is s 5H, which provides that, except in specified circumstances, a person does not owe a duty of care to another person to warn of an obvious risk to that person. The effect of that provision is to carve out liability for failure to warn of an “obvious risk” from the scope of potential liability for failure to warn. Section 5H does not, however, create a substantive defence, except in response to an allegation of negligence by failure to warn. In respect of any allegation of negligence other than failure to warn, s 5H has no work to do. It certainly does not provide that there is no duty to take reasonable care to avoid injury caused by the materialisation of an “obvious risk”.

48 The last section in Division 4 of Part 1A is s 5I, which relates to inherent risks, not obvious risks. By contrast with s 5H, that section does appear to create a substantive defence, namely, that a defendant can not be held liable in negligence for harm suffered as a result of the materialisation of an “inherent risk” within the meaning of the section.

49 In my view, following a determination as to the existence of a duty of care, the proper approach is first to consider whether the defendants breached their duty to take reasonable care to avoid injury. That issue is to be determined in accordance with the principles stated in Shirt. The application of those principles involves regard to the obviousness of the risk to a person exercising reasonable care for his or her own safety, because that in turn informs the response of the reasonable man. However, obviousness is not determinative, even where the Court is satisfied that the risk is an “obvious risk” within the meaning of s 5F.

50 If I am satisfied that the defendants have breached their duty of care, the next task is to consider the substantive defences relied upon. The bare statement that the defendants rely upon Division 4 of Part 1A of the Civil Liability Act is unhelpful in identifying those defences. Having regard to the contents of that Division and the way in which the hearing was conducted, it is prudent to assume that the defendants intended to rely on the following defences:

(a) the defence of voluntary assumption of risk at common law;

(b) to the extent that the particulars of negligence relied upon by Mr Perrett amount to allegations of failure to warn, the provisions of s 5H;

(c) the defence under s 5I that the harm suffered by Mr Perrett was a result of the materialisation of an inherent risk.

51 Mr McCulloch did also submit that the harm suffered by Mr Perrett was a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by Mr Perrett. On any view as to the proper way to plead defences in reliance on the Civil Liability Act, I do not think that defence was raised in the present case by the oblique reference to Division 4 of Part 1A of the Act. Out of an abundance of caution, however, I have also considered that defence below.

52 Finally, as already noted, the defendants raise the defence of contributory negligence.

Were the defendants negligent?

53 The particulars of negligence relied on by Mr Perrett (and repeated by Wine & Vine in its claim for indemnity under the Workers Compensation Act) allege that the defendants:

“(i) failed to take any or any adequate precautions for the safety of the plaintiff;
(ii) exposed the plaintiff to a risk of injury which could have been avoided by reasonable care on its part;
(iii) failed to provide safe steps;
(iv) failed to provide steps that were clearly visible;
(v) failed to provide steps that were distinguishable from the background;
(vi) failed to provide suitably coloured strips on the nosing of the steps to make them clearly visible;
(vii) failed to place signs in locations that would not distract people using the steps;
(viii) failed to have or maintain an adequate system of inspection to discover unsafe steps;
(ix) failed to place suitable signs warning customers including the plaintiff of the dangers of falling down the steps;
(x) failed to observe the plaintiff was in a position of peril in the circumstances
(xi) failing to locate a suitable or appropriate sign warning of steps
(xii) failing to locate a sign that was clearly legible and/or visible to a person approaching the steps from the north.”

54 Without wishing to put a gloss on those specific contentions, the case was perhaps more neatly summarised in the submissions of Mr Rowe, who described the area as a “pedestrian trap”. He submitted that the three contributions to its danger were, first, the nature of the facility being one that attracts a large number of people (which has the effect of obscuring the steps); secondly, the nature of the steps which were constructed in such a way and colour that their delineation was not clear and, thirdly, the location of the sign.

55 In the well known passage in Shirt, Mason J said at [14]:

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

56 As noted by Giles JA in Temora, the ultimate issue is what reasonable care required. The defendant is not necessarily negligent simply because there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided: at [42].

57 I do not think there can be much doubt in the present case that the defendants ought reasonably to have foreseen that the steps down which Mr Perrett fell posed a risk of injury to a class of persons including Mr Perrett. Mr Brown had suffered an almost identical fall less than two years earlier. An incident report in respect of Mr Brown’s fall (produced from the records of the defendant) described the cause of injury in the following terms:

“Mr Brown stated that he was walking to the car park and not see the stairs (sic). He found himself mid-air and landed on the tiles at the base of the stairs”.

The report records Mr Brown’s statement “that the stairs were dangerous as they were not marked and were hard to see”.

58 A similar fall was reported by Mr Otto Baumer on 17 August 2004. In a report of that incident (also produced from the defendant’s records) Mr Baumer stated:

“I followed a sign before the column that said ‘lifts’. I looked up not noticing that there were stairs going down. Then I fell down because the floor was uneven due to stairs.”

Mr Baumer described the area in which he fell as the Southern end of exhibition halls near Hall 1, which is the area in which Mr Perrett fell.

59 There were five other reports of falls on the stairs in that area before 1 July 2005, although none of those identified failure to see the steps as the reason for the fall. In any event, the falls of Mr Brown and Mr Baumer should have alerted the defendants to the existence of the relevant risk.

60 In addition, the defendants’ documents concerning the renovations undertaken after Mr Perrett’s fall confirm that the risk of injury in that area had been adverted to by the defendants and that the renovations were contemplated, in part, for the purpose of addressing those risks: see exhibit 7 at page 95. I note, however, that a reference to “the lack of a colour contrast on steps” in that document appears to refer to a risk appreciated as a result of Mr Perrett’s fall, not before it.

61 The critical issue in the present case is to determine what a reasonable person would have done in response to the risk before Mr Perrett fell on 1 July 2005. That is an issue in respect of which Mr Perrett bears the burden of proof.

62 In Temora at [41], Giles JA observed:

“Taking reasonable care can involve what is reasonably expected as well as what is obvious, and what is obvious in hindsight must be considered together with the occasion to perceive it at the time. In this respect, and more generally, the matters for consideration will include whether the defect was “in the nature of a trap”.

63 In the present case, the steps might be said to be obvious to a person who knew they were there, or who had a good opportunity to look at the area from certain angles. The real danger, in my view, lay in the fact that, from the approach taken by Mr Perrett, the steps were not reasonably expected because they were so difficult to see. It is relevant that Mr Perrett was walking indoors and, subject to the presence of stairs and other obstacles, was entitled to expect that the surface would be smooth. Nothing warned him of the presence of the steps before he turned to the sign. The opportunity to perceive their presence after that time was limited by the short distance from that corner to the steps, the absence of contrast marking to delineate their presence and the uniform colour of the steps and the surrounding floor. The occasion to perceive the steps was further limited by the need to look up to the sign and the need to watch out for other people.

64 The competing consideration is the expense, difficulty and inconvenience for the defendants of taking action to alleviate the risk, together with the conflicting responsibility to take such action in respect of other areas within the Convention Centre. In respect of those considerations, Mr McCulloch submitted that the renovation works had to be undertaken in an orderly fashion and that there was nothing about the area in which Mr Perrett fell such as to warrant a distraction from the orderly execution of the planned works. He reminded me that it would be wrong to apply a microscope or the “retrospectascope” following Mr Perrett’s fall to say that some tape or carpet or nosing should have been affixed to those particular steps and that that should have been done before other works were carried out.

65 It is undoubtedly correct that the inquiry as to what “reasonableness” requires is prospective rather than retrospective: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 461-463 per Hayne J. However, as submitted by Mr Jenkins, who appeared for Wine & Vine, the prospective inquiry in the present case begins with a consideration of Mr Brown’s fall in September 2003 and Mr Baumer’s fall in very similar circumstances in August 2004.

66 In preparation for the remedial work, including the proposed carpeting of the tiled area, the defendants had called for the submission of designs by 2 April 2004. Those works had apparently still not been undertaken by October 2005, when a letter from the “Risk and Safety Manager” of the Convention Centre to a Work Cover inspector stated that the works to remove the tiles and replace them with carpet and non-slip stair nosing would be undertaken in January 2006. That letter stated:

“As a temporary measure black grip tape has been placed on the edge of the stairs to provide extra friction and highlight the step edges. There are only five small events in Hall 1 between now and January 2006, therefore the foyer will have minimal use over this period.”

67 In my view, the temporary measure of affixing contrasting grip tape to the edges of the steps was a response to the risk that a reasonable man would have taken at a much earlier point. It could have been done without undue expense, difficulty and inconvenience and without unduly interrupting the fulfilment of the defendants’ conflicting responsibilities. Mr McCulloch submitted that it was not established that that was a feasible solution and that it might have created its own additional risks. That, however, is the measure that was in fact taken to remedy the danger at least between October 2005 and January 2006. I am satisfied that any risk posed by the addition of grip tape to the steps could have been alleviated by regular inspection of the area, and would have been far smaller than the risk posed by the absence of nosing or other delineation on the steps.

68 Secondly, the sign could have been positioned in a different place, or even at a different angle so as to be more visible to a person approaching from the North, without great expense, difficulty or inconvenience. In my view, that is also a step that a reasonable man would have taken to obviate the risk of a further fall after Mr Brown’s fall in 2003.

69 I accept, as submitted by Mr Jenkins, that the defendants were “slow out of the blocks” in respect of the major renovations, including the carpeting of the relevant area. However, that was a significant undertaking and I cannot be satisfied that a reasonable man, taking the whole scope of the works into account, would have completed that process before Mr Perrett fell.

70 Further, I am not satisfied that reasonable care required the placement of an additional sign to flag the presence of the steps. The main reason the steps were difficult to see was the absence of contrasting nosing to delineate them from the surrounding tiles and the distracting presence of the sign to the car park. Simple measures could have been taken to remedy those problems, but I am not satisfied that the addition of further signs in the area would have been an improvement.

71 I am satisfied that the application of the “Shirt calculus” produces the conclusion that the defendants failed to do what a reasonable man would have done by way of response to the risk of people falling down the steps in the area in which Mr Perrett fell. In particular, I am satisfied that reasonable care required the defendants to affix contrasting grip tape to delineate the steps and to reposition the sign to the car park. On that basis, I am satisfied that the defendants breached their duty of care to Mr Perrett.

72 Further, I am satisfied that the absence of contrasting nosing to delineate the steps and the distracting presence of the sign to the car park materially contributed to Mr Perrett’s failure to perceive the presence of the steps. On that basis, I am satisfied that the defendants’ negligence caused Mr Perrett’s injuries.

Voluntary assumption of risk

73 As noted by McClellan CJ at CL in Carey at [85], to establish the defence of “volenti”, the defendant must prove the following three elements:

(1) that the plaintiff perceived the existence of the danger;
(2) that he or she fully appreciated it;
(3) that he or she freely and voluntarily agreed to accept the risk.

74 It is in respect of the first element that s 5G of the Civil Liability Act plays a role by creating a statutory presumption as to the plaintiff’s awareness of the danger where it is an “obvious risk” within the meaning of s 5F. Section 5F provides:

“5F Meaning of “obvious risk”

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.”


In the present case, the test is whether the risk of falling down the steps would have been obvious to a reasonable person in the position of Mr Perrett. The burden of proof on that issue is on the defendants.

75 As noted by Basten JA in Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 at [152], a difficulty that attends the task of determining whether a risk is an “obvious risk” within the meaning of s 5F is to know the level of particularity with which the relevant risk should be identified. It might readily be thought that, in general, the risk of falling down stairs is an obvious risk within the meaning of s 5F so that, in accordance with s 5H, the owner or occupier of premises that include flights of stairs does not owe a duty of care to persons who attend those premises to place a sign at the top and bottom of every flight of stairs warning of the risk of injury when negotiating stairs.

76 That is not, however, how the present case was run. The contention put on behalf of Mr Perrett was that, by reason of their uniform appearance, the steps were difficult to see and that the difficulty was compounded by the distracting presence of the sign set beyond the first step.

77 In my view, the determination of the question of “obvious risk” in the present case turns on whether the presence of those steps would have been obvious to a reasonable person in the position of Mr Perrett. I am not satisfied that it would. As already indicated, I accept Mr Perrett’s evidence that he did not in fact see the steps before he fell. That, of course, does not conclusively establish that they would not have been obvious to a reasonable person in his position.

78 In rejecting the contention that the presence of the steps would have been obvious to a reasonable person in Mr Perrett’s position, I have regard to the following matters:

(a) the absence of contrasting edging on the steps. As already indicated, I am not satisfied on the strength of the photographs that the ribbing in the tiles would have been readily observable at the time Mr Perrett fell;

(b) the uniform tiling of the ground in front of the steps, the steps themselves and the ground beyond the steps;

(c) the limited opportunity, for a person coming from the North along the base of the large flight of steps and turning the corner, to observe the steps. The opportunity to observe the steps in those circumstances was in my view limited both by the short distance between the corner and the steps and by the placement of the sign, which was liable to distract a person walking that short distance into looking up rather than down;

(d) the likely presence of other people in the area, which was liable further to limit the opportunity to perceive the presence of the steps.

79 Those matters on their own satisfy me that the presence of the steps would not have been obvious to a reasonable person in the position of Mr Perrett. My conclusion on that issue is reinforced by the evidence of Ms Tsirekas and Ms Mitchell, who were in a position to observe the relevant area very shortly before Mr Perrett fell. Although it appears that they did in fact see the steps before they walked down them, their observations as to the appearance of the steps reinforce my conclusion that the steps were difficult to see at that time.

80 It follows that there is no presumption under s 5G of the Civil Liability Act that Mr Perrett was aware of the risk of harm posed by the presence of the three steps. Further, as already indicated, I accept Mr Perrett’s evidence that he did not in fact see the steps before he fell. Accordingly, I am not satisfied of the first element of the defence, namely, that the plaintiff perceived the existence of the danger. The defence of voluntary assumption of risk is not made out.

Failure to warn - defence under s 5H

81 Section 5H of the Civil Liability Act provides:

“ 5H No proactive duty to warn of obvious risk

(1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or

(b) the defendant is required by a written law to warn the plaintiff of the risk, or

(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.”

As already noted, that section operates in response to an allegation of failure to warn. On my analysis of the question of breach of duty in the present case, the defendants’ negligence lay not in the failure to place suitable signs warning of the presence of the steps but, rather, in the absence of edging on the steps themselves and the inappropriate placement of the sign to the car park. Even if I had held that the defendants were negligent in failing to place signs warning of the presence of the steps, my rejection of the contention that the risk was an “obvious risk” within the meaning of s 5F would have precluded the operation of s 5H.

Materialisation of an inherent risk

82 During the course of the hearing, Mr McCulloch indicated that the defendants relied on s 5I of the Civil Liability Act on the basis that “the action of descending stairs is inherently risky” (T114.18). That submission was not, however, pursued in closing submissions.

83 Section 5I provides:

“(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.”

84 The risk that materialised when Mr Perrett fell was the risk of not perceiving the presence of the steps. That, in my view, was a risk that was capable of being avoided by the exercise of reasonable care and was accordingly not an “inherent risk” within the meaning of s 5I. I am not satisfied that a defence under s 5I is established.

Dangerous recreational activity

85 The operative provision of the Civil Liability Act in respect of dangerous recreational activities is s 5L, which falls in Division 5. Its only connection with Division 4 is that the definitions section in Division 5 imports the definition of “obvious risk” in Division 4. For that reason, I do not think the defendants’ pleadings properly raised a defence under s 5L.

86 In any event, I do not think that attending the Convention Centre at Darling Harbour for the purpose of a work interview is capable of being characterised as a “dangerous recreational activity” within the meaning of s 5K. Mr McCulloch noted that the definition of “recreational activity” includes, in s 5K(c):

“any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure”.

87 Even if the Convention Centre is such a place, there is an additional requirement under s 5K to be satisfied by the defendants, which is to establish that the activity engaged in by Mr Perrett involved a significant risk of physical harm.

88 In that respect, the dangerousness of the relevant recreational activity is to be determined by reference to the activities engaged in by the plaintiff at the relevant time: Fallas at [50] per Ipp JA; at [92] per Tobias JA. I do not think that the activity engaged in by Mr Perrett, that is, walking through the Convention Centre from the place of his meeting to find his car, amounted to “dangerous recreational activity” in the relevant sense.

Contributory negligence

89 The matters relied upon by the defendants in support of the contention that Mr Perrett’s injuries were contributed to by his own negligence were:

(a) failure to take into account the physical characteristics of the area where he was;

(b) failure to take notice of where he was going;

(c) failure to keep a proper lookout for his own safety; and

(d) failure to take care for his own safety.

90 There was a measure of tension in the defendants’ case on this issue. On the one hand, as already noted, it was put to Mr Perrett that he had in fact seen the steps before he fell. Elsewhere, he was questioned as to whether he should have stopped walking while he read the sign [T93.25]:

Q. And it is the fact, isn't it, that according to your evidence, you did not at any stage stop in the course you took from the top of the stairs until the time you fell?

A. I had no reason to stop. There was nothing to indicate that there were - to me that there were steps there, there were any impediment, anything by way of a dangerous situation.

Q. Do you accept that it was an option open to you if you were uncertain about which way to go in this area where there were many people where you said, according to your evidence, you needed to keep your wits about it, for you to stop and receive information before proceeding forward?

A. No, I don't think so. As I say, it does nothing to indicate to me that I saw in looking to the sign that I was headed towards danger. I was headed towards getting information. I was in a public place that should have provided safe passage.”

91 I accept, on the strength of that evidence, that Mr Perrett had not perceived any visual cue to indicate the presence of steps by the time he approached the sign.

92 Mr McCulloch submitted that the level of contributory negligence was “extraordinarily high”. Adopting Mr Perrett’s version of events for the purpose of that submission, Mr McCulloch relied on the fact that Mr Perrett was moving about in an area where there were lots of people, with uncertainty as to where he was going, and that he kept walking whilst looking at the sign even though there were clear visual cues in the area to guide him. Mr McCulloch submitted that, in those circumstances, the level of contributory negligence on the part of Mr Perrett exceeded 50%.

93 I am not satisfied that Mr Perrett’s fall was contributed to by any negligence on his part. The principles applicable in determining whether Mr Perrett has been contributorily negligent are the same as those applicable in determining negligence on the part of a defendant: see s 5R

of the Civil Liability Act . The task is to determine whether Mr Perrett contributed to his fall by failing to take reasonable care of himself against the measure of a reasonable person in his position: Tollhurst v Cleary Brothers [2008] NSWCA 181 at [92] per Giles JA. The test directs attention to the standard of care required of a reasonable person in the position of Mr Perrett, on the basis of what he knew or ought to have known at the time.

94 I am not satisfied that Mr Perrett ought to have known of the presence of the steps. I do not think he overlooked their presence due to inadvertence on his part, but rather due to the combination of factors discussed above, including the absence of edging on the steps, the distracting presence of the sign set back from the top of the first step and the presence of other people in the area.

95 Since he had not perceived the presence of the steps, in my view reasonable care did not require Mr Perrett to stop immediately in order to read the sign. The only evidence as to how far he continued in order to read it was his evidence set out above suggesting that he moved about a metre and perhaps a shade more. He did so in circumstances in which, in my view, he was entitled to expect that the surface was smooth. Accordingly, I am not satisfied that the defence of contributory negligence is made out.

Damages

96 The quantum of damages to which Mr Perrett is entitled was largely agreed. As to non-economic loss, the defendants did not dispute that the severity of Mr Perrett’s loss was at least 15% of a most extreme case: s 16(1) of the Civil Liability Act. Mr Rowe submitted that the severity of Mr Perrett’s non-economic loss should be assessed as 38% of a most extreme case, while the defendants submitted that the appropriate percentage was a range from 30 to 35%. Speaking for myself, I doubt whether the severity of a particular plaintiff’s non-economic loss as a percentage of a hypothetical most extreme case is capable of being quantified to within a percentage point. A sensible approach in the context of the concessions made by the parties in the present case is to quantify the percentage at 35%.

97 In reaching that conclusion, I have regard to the relatively serious injuries suffered by Mr Perrett. As a result of the fall, Mr Perrett sustained fractures to his left hip, his left femur and two ribs. The injury to his hip required the replacement of a pre-existing hip prosthesis. Following that operation, an infection developed and it was discovered that the prosthesis was loose and had to be replaced by yet another prosthesis. Mr Perrett remains stiff in his left hip and continues to experience pain. He requires a walking stick when moving about, which he did not require before the accident. He also suffers from depression as a result of the injuries he sustained. He was, before the accident, extremely fit and active. His ability to participate in the activities he then enjoyed, such as golf, swimming and gardening, has been substantially impaired. According to the table in s 16(3) of the Civil Liability Act, the amount of Mr Perrett’s non-economic loss is accordingly $157,500.

98 As to economic loss, the expert accountants retained by the parties conferred before they were due to give evidence and ultimately produced an agreed assessment which was then tendered by consent. No party suggested that I would not accept their assessment in those circumstances. They quantified Mr Perrett’s economic loss as follows:

Past and future economic loss $418,620.00

Past out of pocket expenses $151,481.89

Fox v Wood $ 6,398.18

Future out of pocket expenses $ 1,667.00

99 The only remaining issue as to damages is whether Mr Perrett is entitled to recover the cost of selling the house in which he and Mrs Perrett lived at the time of the accident. Mr Perrett’s evidence as to why he made a decision to sell the house was as follows:

“A. Because I felt that I could - I couldn't do a lot of jobs around the house that - the maintenance of it, would be becoming an increasing burden. For a period of 6 months or more we were dependent on our neighbours to take out the garbage bins down (sic), issues of that sort that indicated to me that we should leave the house, and go to an apartment that was an over 55's apartment and didn't involve maintenance or anything else.”

100 He said that was a hard decision for them because they had bought the house to stay there “indefinitely”.

101 I do not accept that Mr Perrett is entitled to recover that cost. Mr Perrett was 69 years old at the time of the incident. I think it is likely that he and Mrs Perrett would have had to move at some point, regardless of the accident, for the same reasons. The critical question is whether it was reasonably necessary for them to move as a result of the accident: Arthur Robinson (Grafton) Pty Ltd v Carter (1970) 122 CLR 649 at 661 per Barwick CJ, cited with approval in Fitzgerald v Dansey [2001] NSWCA 339 at [61] per Fitzgerald JA.

102 I am not satisfied that it was. I accept that Mr Perrett’s ability to do jobs around the house and to maintain the garden was impaired as a result of the accident but I do not think it was reasonably necessary as a result for them to sell the house. In the proceedings brought by Mr Perrett, there should accordingly be a verdict and judgment for the plaintiff in the sum of $735,667.07.

The proceedings brought by Wine & Vine

103 Wine & Vine’s claim is for an indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act, which provides:

“(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:

….

(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)” ….

104 For the reasons set out above in respect of my finding that Mr Perrett is entitled to a verdict and judgment in his favour, I am satisfied that his injury was “caused under circumstances creating a liability in some person other than [his employer] to pay damages in respect of the injury”, within the meaning of s 151Z(1).

105 The amount of the indemnity claimed is $183,472.77, being the sum of the workers compensation payments made by Wine & Vine to Mr Perrett (exhibit A1). Since that amount is less than the amount of common law damages which the defendants are liable to pay to Mr Perrett, no issue as to the limit of the indemnity referred to at the conclusion of s 151Z(1)(d) arises: cf Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; (1999) 47 NSWLR 263 per Cole AJA (at 265,[8]), with whom Mason P and Sheller JA agreed.

106 Since I am not satisfied that Mr Perrett’s injuries were partly due to his own contributory negligence, it is not necessary to consider the impact of any such finding on the amount recoverable by Wine & Vine. Accordingly, I am satisfied that Wine & Vine is entitled to an indemnity pursuant to s 151Z(1)(d) in the sum of $183,472.77.

107 Wine & Vine also sought interest pursuant to s 100 of the Civil Procedure Act 2005 on the workers compensation payments made to Mr Perrett. Mr Jenkins relied on the decision in the Court of Appeal in Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270. In that case, Handley JA said “The employers’ right to indemnity under s 151Z(1)(d) accrues as and when each payment of compensation is made …” (at 279B; see also Clarke JA at 276A).

108 Mr Jenkins also referred me to the decision of Howard Rotavator Pty Ltd v Wilson (1987) 8 NSWLR 498 where Hope JA described the claim to interest as a “right to interest” in respect of the recovery of the workers compensation payments.

109 Mr Jenkins referred to a number of other authorities but I do not think it is necessary to recite those. The principle appears to be well established and was not disputed by the defendants. I accept, as submitted by Mr Jenkins, that to deprive Wine & Vine of interest on the payments it has made would be to fail to indemnify it, contrary to the apparent purpose of s 151Z(1)(d).

110 Mr Jenkins noted that the payments in question have been paid regularly over a number of years. In those circumstances, he submitted that the appropriate methodology for calculation of interest was to take the total loss since the first payment and to allow interest for the whole period at half the rate: Jefford v Gee [1971] All ER 1202 at 1208 per Lord Denning MR.

111 The total interest calculated on that basis is $39,836.16. I am satisfied that it is appropriate to allow that sum.

112 As noted by Mr Jenkins, s 100 of the Civil Procedure Act provides for the interest to be added to the amount of damages so as to produce the judgment sum. On that basis, I am satisfied that it is appropriate to give judgment in favour of Wine & Vine in the sum of $223,308.93.

Costs

113 The order that Wine & Vine’s claim be heard together with Mr Perrett’s claim was opposed by the defendants. I heard that application at the outset of the hearing of the proceedings (see judgment given ex tempore on 18 May 2009).

114 The basis on which the defendants opposed having the two proceedings heard together was twofold. First, it was contended that the employer’s entitlement to an indemnity under s 151Z(1) would not accrue until there was a judgment for a money sum in favour of Mr Perrett and, accordingly, that the proceedings should not have been commenced, and indeed could not be commenced, until after judgment in the Perrett proceedings (at T8.19). Secondly, it was contended that the commencement of proceedings by Wine & Vine was in any event unnecessary, since the defendants had made a promise to indemnify it in the event that there was judgment against them in the Perrett proceedings.

115 The argument that the cause of action did not accrue until after judgment in the Perrett proceedings was abandoned at the conclusion of the hearing (at T251.27) but the defendants maintained that the proceedings were an abuse of process in light of the defendants’ preparedness to indemnify Wine & Vine in certain circumstances.

116 In those circumstances, Mr Jenkins addressed the question of costs, both in written submissions and in his oral submissions to the Court. It is not clear to me, however, whether Mr McCulloch has said all he wants to say on those issues. Accordingly, I reserve the question of the costs of Wine & Vine’s proceedings pending further submissions on that issue.

117 It has not been suggested that there should be any costs order in the proceedings commenced by Mr Perrett other than for costs to follow the event and I am satisfied that is the appropriate order.

118 The orders I propose are:

In proceedings 20429/06

(1) That there be a verdict and judgment in favour of the plaintiff in the sum of $735,667.07.

(2) That the defendants pay the plaintiff’s costs of the proceedings.

In proceedings 20528/08

(1) That there be judgment for the plaintiff in the sum of $223,308.93.

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21/10/2009 - Amendments to figures pursuant to the slip rule under Part 36 Rule 17 of the UCPR 2005 - Paragraph(s) 98, 102, 105, 106, 112 and 118.