Randwick City Council v Muzic

[2006] NSWCA 66

New South Wales

Court of Appeal

CITATION:	Randwick City Council v Muzic [2006] NSWCA 66
HEARING DATE(S):	28 September 2005
JUDGMENT DATE:	6 April 2006
JUDGMENT OF:	Handley JA at [1]; Ipp JA at [2]; Hunt AJA at [3]
DECISION:	(1) The appeal against liability is dismissed. ; (2) Leave is granted to the respondent to file her cross-appeal against the judge’s finding that she was guilty of contributory negligence.; (3) The cross-appeal is allowed.; (4) The appeal against the damages awarded is allowed. ; (5) The appellant is to pay the respondent the sum of $164,187.; (6) This judgment, as to the sum of $124,187, is to take effect as from the date of the judgment in the District Court and, as to the balance of $40,000, it is to take effect as from the date of this judgment.; (7) The appellant is to pay the respondent’s costs of the trial.; (8) The appellant is to pay 60% of the respondent’s costs of the appeal.
CATCHWORDS:	Algae on concrete promenades giving access to council pool over many years because of council's inability to remove it — notice of frequent accidents, some serious — advice given to undertake remedial work — council decides to do nothing. - Presence of algae obvious — risk of serious injury from slipping on it not necessarily obvious — discharge of duty of care to persons invited to use promenades as access to pool required closure of promenades until remedial work completed — appeal against finding of liability dismissed — volenti not fit injuria defence fails — judge finds that plaintiff had not failed to take reasonable care for her own safety, but finds 15% contributory negligence — cross-appeal against contribution allowed. - Plaintiff had relevant pre-existing ailments — judge finds post-accident condition caused solely by accident — appeal against non-economic loss allowed — judge awards future gratuitous attendant care services on the same basis — appeal against award allowed.
LEGISLATION CITED:	Civil Liability Act 2002 Crown Lands Act 1989
CASES CITED:	Ainger v Coffs Harbour City Council [2005] NSWCA 424 Booksan Pty Ltd v Wehbe [2006] NSWCA 3 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 Browne v Dunn (1894) 6 R 67 Canterbury Municipal Council v Taylor [2002] NSWCA 24 Coleman v Barrat [2004] NSWCA 27 Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Hadland v Council of the City of Blacktown (Court of Appeal, 21 May 1996, unreported) Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Roggenkamp v Bennett (1950) 80 CLR 292 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Swain v Waverley Municipal Council (2005) 220 CLR 517 Vairy v Wyong Shire Council (2005) 221 ALR 711 Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742 Waverley Municipal Council v Lodge [2001] NSWCA 439 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Randwick City Council – Appellant Mattea Muzic - Respondent
FILE NUMBER(S):	CA 40840/04
COUNSEL:	M Joseph SC, S Glascott – Appellant B Toomey QC, A Johnson – Respondent
SOLICITORS:	Phillips Fox – Appellant James Moustacas & Co – Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	3897/02
LOWER COURT JUDICIAL OFFICER:	Murray ADCJ

1 HANDLEY JA: I agree with Hunt AJA.

2 IPP JA: I agree with Hunt AJA.

3 HUNT AJA: The respondent (as plaintiff) initiated proceedings against the appellant (as defendant) in the District Court, seeking damages for personal injuries sustained by her when she slipped and fell over whilst approaching the steps to the sea baths at Clovelly Bay on 30 January 2002. The defendant is a public authority which has the custody, care and control of the area in which the incident occurred.

4 The plaintiff claimed that the defendant owed her a duty of care in relation to her use of the sea baths and surrounding areas, that it had breached its duty to her by failing to remove algae from the surface of the area on which she slipped and by failing to close off the access to the sea baths until it could be made safe, and that she suffered damage as a result of that breach. Acting Judge Murray QC found in favour of the plaintiff and assessed her damages at $250,239. This was reduced by fifteen percent for contributory negligence, and the plaintiff was awarded $212,703.

5 The defendant contends that the judge (1) erred in finding (i) that the plaintiff was owed a duty of care, (ii) that the defendant had breached the duty it owed, and (iii) that no defence of volenti non fit injuria was available, and (2) in his assessment of (i) the plaintiff’s contributory negligence, and (ii) the plaintiff’s damages.

6 This case is not governed by the Civil Liability Act 2002, save as to the damages to which the plaintiff may be entitled: Schedule 1, ss 2 and 6.

Factual background

7 Clovelly Bay is a narrow coastal inlet developed in the 1930s into an enhanced swimming area. It has a sea wall at its eastern-most point and a sandy beach to the west. The rocky areas to the northern and to the south have been converted into concrete promenades. The sea baths lie between these promenades and may be accessed by swimmers by way of concrete steps on the northern and southern promenades, and by way of a sand pathway from the beach to the west.

8 Prior to the incident, there had been a build up of algae on the northern and southern promenades, particularly on the areas leading to the sea baths steps and on the steps themselves. This had been a problem for some time, and the judge found that the plaintiff was well aware of the dangers posed by it. This is apparent from the written reports prepared in relation to the area, mainly during the late 1990’s. For example, the Draft Management Plan for Clovelly Bay prepared by Hassell & Associates in May 1995 (updated in May 1997 and October 1998) states:

(1) “The northern-eastern rock platforms are prone to high levels of green algae” (at page 22).
(2) “As the surround of the bay is subject to a high level of pedestrian traffic, Council has an ongoing problem providing a safe environment for users of the Bay. The algae creates very slippery surfaces, which can be dangerous for walking over, particularly for those with mobility difficulties” (at page 24).
(3) “Access from the concrete platform can be a safety risk due to ... algae growth on the steps and platform surface” (at page 28).
(4) “An ongoing problem for both entry steps and the disabled access ramp is the algae growth. The algae create a slippery surface which can be dangerous when entering and leaving the water. Ongoing and improved maintenance is required in the interest of public safety” (at page 32).

9 Until 1997, the defendant regularly removed the algae using chemicals and wire brushing. There was evidence at the trial that, once this practice was stopped, people were slipping over on the algae-affected areas and injuring themselves, sometimes quite badly. Such incidents were reported to the defendant and sometimes resulted in the commencement of proceedings against it for compensation. For example:

(1) A memorandum dated 1 October 1998 prepared by the defendant records that on 28 January 1995 “a man was walking into the Clovelly sea baths by means of the stairway. He slipped and fell on slippery substances on the step injuring his back and neck. Supreme Court action was subsequently taken against the Council”.
(2) On 12 March 1998, a petition was prepared by a number of residents which stated that “we are in grave danger of injury due to lack of maintenance on the promenade. In the past week I have seen 3 people slip and fall on a ‘dry’ prom ... . We are requesting that the Council take the very necessary action to make the steps and promenade ‘safe’ for us to walk on”.
(3) At a meeting of the public held at the Randwick Town Hall on 1 October 1998, a Clovelly Bay lifesaver reported that, on average during the swimming season, local lifesavers treated around six people per day on weekends for injuries sustained by slipping and falling on the promenades.

10 The continuing problem led to the commissioning of a report by consulting engineers Patterson Britton. This report, delivered in February 1999, contains the following material passages:

(1) “Access between promenades and water is a safety risk due to algal growth on steps and inner surfaces of the platforms”.
(2) “Council liability in relation to people slipping on public surfaces is a growing problem. From discussion with Councils Risk Co-ordinator, Mr Eric Roe, it is understood that people slip and break limbs at Clovelly each summer, and claims are brought before the courts”.
(3) “Council recognises that its current strategies for removing algal growth requires improvement. Dosing the algal surfaces with diluted chlorine and applying high pressure water is a time consuming exercise which the Council currently finds difficult to service. Furthermore the use of algaecide is considered damaging to the environment of the Bay. Cleaning the steps needs to take place at low tide and to properly clean all eight steps at Clovelly is difficult to achieve over one low tide cycle. It is understood that part of the problem relates to access and part also to manpower. Council has advised that it does retain additional staff for maintenance operations over the summer months, but even so personnel for cleaning off the concrete surfaces and the steps are not always available”.

11 The Patterson Britton report recommended that major remedial work be carried out on the promenades. This work included the resurfacing of both promenades and raising their levels by between 30 and 60 centimetres. The remedial work was underway at the time of the plaintiff’s accident on 30 January 2002, and the southern promenade had been closed to the public for that purpose.

12 The plaintiff was born in 1930 on the island of Ije which is situated off the coast of Croatia (the island is also close to the coast of Italy, where it is known as Unie). She came to Australia in 1958 and settled in the suburb of Clovelly in 1971 with her husband, and she has remained there ever since. Their home is within walking distance of Clovelly Bay. The plaintiff was a keen swimmer. She gave evidence that, until she was injured, she had swum at Clovelly Bay every day for seven and a half months of each year since 1971. She conceded that she was familiar with the sea baths and the surrounding area.

13 The circumstances of the accident were as follows. It was the plaintiff’s usual practice to walk to the sea baths from her home in nearby Keith Street. She would usually enter the water from the steps on the southern promenade. However, due to its closure at the time of her accident, the plaintiff went to enter by way of the northern promenade. She gave evidence that she did not use the sand pathway to the west because it was typically littered with used hypodermic syringes. She said that she walked slowly and carefully along the northern promenade towards the steps. When she was approximately one and a half metres from the steps, she slipped on the algae and fell over. She sustained injuries including an abrasion, some bruising and some swelling and tenderness to her right wrist. The plaintiff said that the area on which she fell was wet, as it was near the steps. She said that, whilst she knew that the area where she fell was slippery, and therefore exercised particular care whilst walking on it, she did not anticipate that it would be “that slippery”.

14 At the time of the incident, there were no signs warning members of the public that the surface of the promenade was slippery near the entry to the sea baths. However, the judge found that such a warning sign would have made no difference in this case because the plaintiff had admitted she was aware that the area on which she fell was slippery.

The appeal

15 The issues on appeal may be categorised in broad terms as follows:

(1) whether the defendant owed the plaintiff a duty of care;
(2) if so, whether the defendant breached that duty;
(3) whether a defence of volenti non fit injuria was available to the defendant;
(4) whether there was contributory negligence on the part of the plaintiff; and
(5) what damages (if any) ought to have been awarded to the plaintiff.

The duty of care

16 The defendant contends that it did not owe the plaintiff a relevant duty of care or, alternatively, that the scope of any duty it owed did not encompass the particular risk which materialised in this case.

17 The defendant is the trust manager of the Crown reserves at Clovelly Bay which include the area in which the footpaths, promenades and access ways at Clovelly Bay are located, pursuant to the Crown Lands Act 1989. The defendant admits to having the custody, care and control of that area at the time of the plaintiff’s accident.

18 The defendant concedes that, because of its custody, care and control of the promenades and access ways, it “may” have owed a general duty of care to persons entering the sea baths. There could be little doubt that such a duty was indeed owed by the defendant: see the remarks of Hayne J in Vairy v Wyong Shire Council (2005) 221 ALR 711 at [117], and the authorities cited there. However, the defendant contends that it did not owe a duty of care to persons entering the sea baths by way of the northern or southern promenades to take reasonable precautions to prevent their slipping on algae-affected surfaces and sustaining injury. The primary reason for this, the defendant argued, was the asserted obviousness of this particular risk and the fact that its existence was well-known to the plaintiff.

19 In support of this assertion, the defendant relied on statements made by members of the High Court in the decision of Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. In his discussion of the scope of the duty of care owed by the Conservation Commission of the Northern Territory in that case, Kirby J said (at 478):

The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants. While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety ... . Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.

This passage should be read in light of the remarks of Gleeson CJ in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [45], in which he described Kirby J’s statement as “a comment” but “not a proposition of law” and even, as a proposition of law, “not of universal validity”. Gleeson CJ pointed out that the description of the risk as obvious requires closer analysis in the given case.

20 The defendant says that, as the plaintiff had swum at Clovelly Bay for over 30 years, she was very familiar with the area and with the obvious risk posed by the algae. In answer, the plaintiff submits that the risk could not have been obvious. She points to the evidence that as many as six people were slipping on the algae each day each weekend as supporting her answer. The plaintiff also submits that obviousness is an issue more appropriately dealt with in relation to breach rather than the existence of a duty of care.

21 The judge found that the plaintiff did owe a duty of care to the defendant. He said (at [67]):

It is clear that the Council exercised care control and management over the area of Clovelly Bay. The council by developing the area on both sides of the Bay and by providing access thereto invited members of the public to resort to and enjoy the area and the facility. By providing stairs and access from the main promenades it invited members of the public to swim in the baths. It follows in my opinion that a duty of care was thereby created.

The judge did not think the risk of injury was so obvious as to negate the duty of care. He said that when the algae was wet it became so slippery that even a person exercising reasonable care for their own safety may not be able to avoid slipping. The judge found that the scope or content of the duty owed by the plaintiff required it to take measures to protect members of the public from that danger.

22 There can be little doubt that the risk of injury to persons entering the sea baths by way of the promenades was reasonably foreseeable. There is considerable evidence of not only the dangers posed by the build-up of algae on these promenades, but also of the defendant’s awareness that many people had actually been injured by it. Indeed, to contend as the defendant does that the risk of injury was obvious is effectively to acknowledge its foreseeability. Foreseeability is of course a necessary, but not a sufficient, requirement to establish a duty of care.

23 The defendant was clearly in control of the area in which the incident occurred. It had, by constructing stairs that led into the water from each promenade, invited the public to enter the sea baths in that manner. In these circumstances, it would seem that the defendant must prima facie have owed the plaintiff a duty of care in relation to the use of the promenades. The issues are therefore:

(1) whether obviousness of risk is a matter which may properly be taken into account in relation to the question of duty; and, if so —
(2) whether by reason of the asserted obviousness of the risk of slipping over on the algae, the defendant’s duty is judged not to encompass that particular risk.

24 It is yet to be resolved whether, at common law, obviousness is necessarily relevant to the existence of a duty of care. In recent times, much has been said by justices of the High Court about the role of obviousness in establishing a breach of duty and the standard of care, but very little has been said in relation to obviousness and the duty of care itself. However, Gummow J made this comment in Vairy v Wyong Shire Council (at [55]):

Reference to a risk being “obvious” cannot be used as a concept necessarily determinative of questions of breach of duty or, I would add, of questions of the existence and content of the duty itself.

By this, Gummow J appears to accept that obviousness might be relevant to duty. Following Vairy , in Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380, Ipp JA (with whom Giles JA and I agreed) undertook a comprehensive examination of the various statements recently made by the justices of the High Court (including the above statement by Gummow J) in relation to the role of obviousness of risk in the law of negligence. Ipp JA arrived at the following conclusions (at [53]):
A common expression of principle as to the concept of obviousness of risk is manifest from the unanimous decision in Thompson [ Thompson v Woolworths (Queensland) Pty Ltd (2005) 79 ALJR 904] and the judgments of those justices in Mulligan [ Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43] and Vairy who formed a majority on this issue. It can be articulated as follows. Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care. I make no comment as to whether it is relevant also to the existence of a duty of care as that was not in issue in this case (and see Ghantous [ Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512] and the comments of Gummow J in Vairy at [55] and [80]). The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance as to be effectively conclusive.

See also statements in Booksan Pty Ltd v Wehbe [2006] NSWCA 3 (at [71]–[82]) and Ainger v Coffs Harbour City Council [2005] NSWCA 424 (at [78]). If at all relevant, obviousness of risk is at most one matter to which regard may be had in assessing whether a duty of care is owed. It cannot itself determine the question.

25 The expectation that persons to whom it is asserted a duty of care is owed should themselves take reasonable care for their own safety was discussed in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512. Gaudron, McHugh & Gummow JJ said (at [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, as in Ghantous , 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 in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence.

26 However, it is not the case that there is never a duty of care owed by an occupier to a careless invitee or one who is aware of the dangerous condition of the premises to which he is invited: Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42 at 67. Anderson concerned an injury sustained by a member of the public on entering a railway station. One section of the entrance was peculiar in that there was a horizontal beam mounted between both sides of the passageway at a height of about four feet. The purpose of the beam was to force cyclists to dismount before proceeding through the station. However, pedestrians also entered the station by way of this passageway. The plaintiff had used the station daily for three and a half years. On the day in question, he proceeded down the passageway and attempted to duck down under the beam. Unfortunately, he did not duck far enough, and he struck his head on the beam and was severely injured. The defendant argued that it did not owe the plaintiff a duty of care because he had been aware of the beam before his accident. This submission was rejected by a majority of the High Court.

27 Menzies J held (at 66) that an awareness of the existence of the beam was not equivalent to an appreciation of the danger it posed. He said that, by maintaining a dangerous obstruction, the defendant was under a duty to keep members of the public conscious of the risk they ran in entering the station by way of the passageway. Kitto J focused on the potential for injury in circumstances of momentary inadvertence. He said (at 58–59):

A reasonable jury might well consider, I think, that it was by no means beyond the limits of reasonable foresight that from time to time a person, while acting reasonably in acceptance of the defendant's invitation to enter the station, might sustain an injury, great or small, by contact of his head with the bar; for errors resulting in mishaps of this kind are among the commonest of failures, even among reasonable people. It seems to me that it was open to the jury to attribute the plaintiff's injury to a breach by the defendant of the duty of care which in all the circumstances he owed on the occasion in question to the class of persons of whom the plaintiff was one.

McTiernan J held (at 53) that, in order for the defendant to be free of liability, it had to establish that the plaintiff entered the passageway with a full appreciation of danger of striking his head on the beam.

28 There may room for argument that the duty owed by an occupier to an invitee is not on all fours with the duty owed by a public body to an entrant in the current law; in Brodie/Ghantous, Hayne J (at [303]) suggested that the analogy was imperfect. However, the role and significance of inadvertence in the context of the duty owed under the current law was also discussed by Gummow J in Swainv Waverley Municipal Council (2005) 220 CLR 517 (at [142]) where he said:

A duty of care may extend to preventing injuries that result from the "inadvertence and inattention" of plaintiffs to obvious risks: Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342.

29 To summarise:

(1) It is not settled whether obviousness of risk is necessarily relevant to the question of whether a duty of care is owed to a class of persons.
(2) An occupier is entitled to expect persons entering his property to exercise reasonable care for their own safety.
(3) A distinction must be drawn between an awareness of a particular risk and a proper appreciation and understanding of its potential ramifications.
(4) Even if obviousness is relevant to duty, allowances must still be made for inadvertence.

30 It is unnecessary in the present case to determine whether the obviousness of risk is relevant to the question of whether the defendant owed the plaintiff a duty of care, because, even if it were relevant, I am not satisfied that either the plaintiff’s familiarity with the area in question, or the fact that the algae was plainly visible to users of the sea baths, negated the defendant’s duty of care. There is nothing to suggest that the plaintiff had a proper appreciation and understanding of just how dangerous it was on that particular occasion to enter the water by way of the promenades. Based on the point made by Gleeson CJ in Woods v Multi-Sport Pty Ltd (see par [19] supra), the plaintiff’s appreciation that wet algae is slippery does not lead to an appreciation of the danger that, on that particular day, the algae was so slippery that, no matter how much reasonable care is taken, a pedestrian will slip on it and be injured. This is consistent with the judge’s finding (at [97]) that the plaintiff “knew, in a general way, that there was a risk of slipping on stairs but she did not anticipate that the risk would materialise”. No steps had been taken by the defendant to bring home to the plaintiff the true character and seriousness of that risk.

31 Given the frequency with which people were being injured whilst attempting to enter or exit the water, it is far from clear that, by taking care for their own safety, members of the public would be certain to avoid injury. Indeed, it was clearly foreseeable that, unless action was taken by the defendant to convey to users of the sea baths the gravity of the risk, inadvertence or a momentary lapse in concentration could quite easily result in very severe injury. That is what appears to have happened in this case. Accordingly, the defendant’s contention that it did not owe a duty of care is rejected.

Content of duty and breach

32 The plaintiff alleged that the defendant’s duty required that it ensure the promenades were safe to walk on or, if that were not practical, to close the promenades to the public.

33 The defendant correctly points out that its duty was to take reasonable care only, and not to prevent any and all foreseeable injuries to the plaintiff. The defendant contends that the asserted obviousness of the risk of injury to persons using the promenades meant that it was entitled to do nothing in response to this risk. The judge found that signs warning that the surface was slippery would have been of little use in this case, and that the defendant ought to have closed the promenades to the public until they were made safe. The defendant contends that the judge erred, and that closure of the promenades was an unreasonable response to an obvious risk.

34 In answer, the plaintiff says the closure of the promenades would not be unreasonable and that local councils in this State often close parts of footpaths and roadways whilst they are repaired. The plaintiff says that, when regard is had to the defendant’s knowledge and appreciation of this particular risk of injury and its frequency of occurrence, its ability to control absolutely access to the promenades and the fact that the defendant invited and encouraged their use, the “do nothing” response could not be considered a reasonable one.

35 The judge found the defendant had breached its duty of care. He said (at [75]) that he did not agree the plaintiff had failed to exercise reasonable care for her own safety (this is to be contrasted with the judge’s subsequent decision to apportion 15% of the responsibility for the accident to the plaintiff), that the defendant had invited and encouraged her to use the promenades and that its control of access to the area was absolute. He did not consider the asserted obviousness of the risk to be a factor militating against a finding of breach of duty.

36 The judge then considered the reasonable response to the risk of injury. He noted that the use of chemicals and wire brushing was not permissible because it contravened the Environmental Operations Act 1997. The use of high-pressure water blasting was also ruled out because the defendant did not have the necessary equipment or the means to transport it onto the promenades. In those circumstances, it was therefore not reasonably possible for the defendant to clean the algae from the promenades. In the judge’s opinion, the defendant ought to have temporarily closed northern promenade, forcing members of the public to gain access to the sea baths from the beach entrance to the west until the remedial work already being undertaken on the southern promenade was completed. He said the risk of injury by broken glass and discarded hypodermic syringes, which were found around that entrance, could be overcome by proper cleaning measures.

37 On appeal, the defendant once more placed considerable emphasis on its contention that the risk of injury was obvious. It is accepted that obviousness may be relevant to breach of duty: see the remarks of Ipp JA in Consolidated Broken Hill Ltd v Edwards, quoted in par [24] supra. However, a finding that a risk of injury was obvious is not a substitute for the careful analysis a court is required to perform in order to assess, in accordance with the principles laid down in Wyong Shire Council v Shirt (1980) 146 CLR 40, whether a breach of duty has been committed by a defendant: see the remarks of Hayne J in Vairy v Wyong Shire Council (2005) 221 ALR 711 (at [162]). What the now familiar Shirt analysis requires is a consideration of whether the particular risk of injury was reasonably foreseeable (in the sense of not being far fetched or fanciful) and, if so, the response of the reasonable person to that risk. This calls for a consideration of the magnitude of the risk and the degree of 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: per Mason J at 47-48. The Court must attempt to identify what the response would have been by a person looking forward at the prospect of the risk of the injury: Vairy per Hayne J (at [126]).

38 The risk of injury to persons using the promenades was clearly foreseeable having regard to the numerous prior accidents which had occurred. Also noteworthy is the following passage in the Patterson Britton report of February 1999:

Choosing to maintain the status quo meant that the recurrent maintenance problems would continue, and that Council would continue to receive public liability claims for injuries.

The real issue is what the defendant ought to have done in response to that risk. The potential steps which might have been taken were:
(1) doing nothing;
(2) removing the algae from the promenades using chemicals;
(3) removing the algae using high-pressure water blasting;
(4) erecting warning signs;
(5) remedial work on the promenades;
(6) closure of the promenades; or
(7) some combination of two or more of the above.

39 I agree with the findings of the trial judge, for the reasons he has given, that the defendant's preferred response (to do nothing), was not reasonable, that it was not reasonably possible (in the light of the new environmental statute) for the defendant to clean the algae from the promenades, and that the usual notice warning that the surface of the promenades was slippery would have made no difference in this case because the plaintiff admitted that she was aware of that fact. The defendant has accepted the need for remedial work on the promenades, which is already underway on the southern promenade closed for that purpose. The remaining alternative is the closure of the northern promenade until it too could undergo the remedial work needed.

40 The defendant says that closure of the promenades was not a reasonable response to the risk of injury. I do not agree. Clearly, the magnitude of the risk was significant. There was evidence that people other than the plaintiff had been injured, sometimes quite seriously, after slipping on the algae. These injuries included broken limbs as well as back and neck injuries. The risk of injury was obviously considered very serious by users of the sea baths as evidenced by the petition of 12 March 1998 and a community survey conducted in 1995, in which 80% of respondents ranked this issue as second in importance only to the need for general repairs of the area. Both of these documents were in evidence as part of a file of documents held by the defendant. It is also apparent that the degree of probability of occurrence of the risk was high. With evidence that as many as six people per day each weekend were being treated for injuries caused by falls on algae-affected surfaces, it could hardly be suggested that the position were otherwise.

41 The closure of the northern promenade would not have involved the defendant in any great expense. Obviously there would be some cost associated with the erection of appropriate barriers restricting access, and also the cost of regularly removing debris from the west beach entrance, but this could not justify the defendant’s failure to act. Any difficulty or inconvenience this may have caused the defendant would clearly be outweighed by the seriousness of the risk of injury. The defendant complains that it would not have been feasible to take this step, yet the evidence discloses that the southern promenade was closed at that time for the remedial work necessary to be carried out there. Whatever measures were used to close the southern promenade, they were sufficient to dissuade (or prevent) the plaintiff from entering the sea baths by way of that particular promenade, which she had generally been using for the past 30 years.

42 It remains only to consider whether the obviousness of the risk of injury was such as to absolve the defendant from its apparent breach of duty. As already suggested, obviousness of risk is not a separate legal criterion against which the defendant’s conduct is to be measured, at least so far as the common law of negligence is concerned: Woods v Multi-Sport Holdings Pty Ltd, per Gleeson CJ (at [43]–[45]). Obviousness of risk is only relevant to an assessment of how the reasonable person would have responded to the particular risk. Even an obvious risk may call for a response.

43 The defendant relies on the decision of this Court in Waverley Municipal Council v Lodge [2001] NSWCA 439. In that case, the plaintiff was injured when he slipped on some moss or algae-covered rocks at the northern end of Bondi Beach. Bryson JA (Meagher & Heydon JJA agreeing) held that the defendant did not breach its duty of care by failing to erect warning signs in the area of the plaintiff’s fall. Bryson JA based his decision, in part, on the obviousness of the risk of injury to persons walking on the rocks. It is that aspect of Bryson JA’s judgment that the appellant has seized on in this case. However, the trial judge in the present case was correct to distinguish Lodge from the present case, for three principal reasons. First, the defendant in Lodge had no real control over the area in which the accident occurred. Bryson JA made it plain (at [33]) that his findings as to breach of duty were “in the light of the very slight exercise of control, and very slight opportunities for its exercise” by the defendant. Secondly, the defendant in Lodge did not invite or encourage members of the public to use the area in which the accident occurred. Thirdly, the duty contended for in Lodge was a duty to warn. This appeal does not turn upon whether the defendant had a duty to warn, but rather whether it had a duty to deny access to an unsafe area.

44 The evidence in the present case discloses that the algae was visible to users of the promenades. However, it does not necessarily follow that the danger it posed was “obvious” in the sense contended for by the defendant. The fact that injury to persons using the promenades to access the sea baths was so regular an occurrence tells against this. The defendant was clearly in a position of superior knowledge and understanding in relation to the dangers posed by the algae. It was aware of the frequency with which people were being injured, and it had the benefit of the reports already referred to, including the Patterson Britton report which specifically commented on this risk. The plaintiff did not have access to any of this information. I am therefore not satisfied that the dangers posed by the algae, as distinct from its presence, were necessarily obvious to users of the sea baths. In any event, I am not satisfied that the asserted obviousness of the risk would be sufficient, when balanced against the other factors referred to above in the application of Shirt, to justify the defendant taking no action.

45 Accordingly, I am not persuaded that the judge’s findings in relation to breach of duty ought to be disturbed. To discharge its duty of care, the defendant could have closed the promenades and forced the public to enter the sea baths by way of the beach until the remedial work was completed, whilst also taking steps to regularly clean the beach to alleviate the risk of injury by broken glass and discarded syringes.

46 The plaintiff filed a notice of contention, asserting that the judge should have found for the plaintiff on the alternative ground that a reasonable response to the unchallenged danger posed by the algae on the promenade used as access to the water demanded the removal of the algae by the use of chlorine or otherwise. In the light of my conclusion stated in the previous paragraph, it is unnecessary to consider that contention.

Volenti non fit injuria

47 The defendant raised a defence of voluntary assumption of risk, or volenti non fit injuria. It asserted that the evidence supports a finding that the plaintiff’s appreciation of the risk of slipping on the algae was such as to establish the defence. The plaintiff responded that the evidence does not support such a finding. The judge said that “the plaintiff knew, in a general way, that there was a risk of slipping on the algae, just as there was a general risk of slipping on the stairs, but she did not anticipate that the risk would materialise.” He ruled volenti inapplicable.

48 The legal test for determining whether a defence of volenti applies is not in dispute. A defendant who advances this defence must establish that the plaintiff perceived the existence of the danger, that he fully appreciated it and that he voluntarily agreed to accept the risk: Roggenkamp v Bennett (1950) 80 CLR 292 per McTiernan & Williams JJ (at 300), Hadland v Council of the City of Blacktown (Court of Appeal, 21 May 1996, unreported) per Clarke AJA (Grove AJA agreeing) and Canterbury Municipal Council v Taylor [2002] NSWCA 24 per Ipp AJA (Spigelman CJ & Mathews AJA agreeing) at [141]–[148].

49 The defendant relies on evidence given by the plaintiff that she was aware that the surface of the promenades near the entry to the sea baths might be slippery, and that she knew the slipperiness could vary from day to day. The plaintiff had also said that on the day of her accident she was walking carefully to avoid slipping. All this can establish is that the plaintiff knew there was a danger; it does not necessarily follow that she had a full comprehension of its extent: Roggenkamp (at 300). As discussed earlier (at par [43] supra), the plaintiff did not have access to any of the information the defendant had regarding the history and nature of the accidents on the promenades. She could not have had a proper appreciation of the extent of the risk she ran in choosing to enter the sea baths in the way she did. I am not persuaded that the judge erred in rejecting the defence of volenti non fit injuria.

50 Accordingly, I would dismiss the appeal on liability.

Contributory negligence

51 The defendant challenges the findings of the judge regarding contributory negligence. It points to the plaintiff’s use of the sea baths for 30 years and her awareness that the promenades could be slippery. It argues that the plaintiff was thus possessed of superior knowledge and, in light of this, her decision to ignore an obvious risk ought to attract a significant proportion of the responsibility for her accident. That argument flies directly in the face of the evidence to which reference has already been made (in par [43] supra).

52 The plaintiff also seeks leave to challenge, by way of a cross-appeal filed out of time, the judge’s finding that she did not take reasonable care of herself and thus contributed to her own injury, on the basis that she had no control over the danger of the promenade, and there was no reasonably safe alternative access available to her. She argues that, first, the judge held that the defendant should have closed the promenades whilst clearing the beach of syringes and broken glass, and that implicit in the judge’s reasoning is the finding that the plaintiff ought to have entered the water by way of the beach. This was her contributory negligence. Yet, at the time of her accident, it would not have been reasonable for her to do so because there was evidence that the beach entrance was not free of debris. There was no evidence to the contrary of her description that, at the time of her accident, the sand pathway to the west of the baths was typically littered with used hypodermic syringes. Secondly, she argues that a finding of contributory negligence was inconsistent with the judge’s earlier finding that the plaintiff had not failed to taken care for her own safety on the day of her accident.

53 The judge found the plaintiff’s own negligence contributed to her injuries, and he attributed 85% of the responsibility for the accident to the defendant and 15% to the plaintiff. That decision to apportion any responsibility to the plaintiff is surprising in light of his earlier finding “nor do I agree that the plaintiff in this case failed to exercise reasonable care for her own safety.” He gave no explanation for the obvious conflict between his two findings.

54 I accept that a trial judge’s finding of contributory negligence is not lightly reviewed: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 per Gibbs CJ, Mason, Wilson, Brennan & Deane JJ (at 532). The present is a clear case in which such a finding should be reviewed on appeal. In the light of the judge’s finding that the plaintiff had not failed to exercise reasonable care for her own safety, and the absence of any suggestion in the evidence that the plaintiff had a proper appreciation and understanding of just how dangerous it was on this occasion to enter the water by way of the promenade (rather than a mere understanding that wet algae is slippery), I am not satisfied that the defendant has established that she was guilty of contributory negligence.

55 Accordingly, I would dismiss the defendant’s appeal against the judge’s apportionment, I would grant leave to the plaintiff to file her cross-appeal against the judge’s finding that she was guilty of contributory negligence out of time, and i would uphold that cross-appeal.

Damages

56 The judge awarded the plaintiff $250,239 in damages. (This was discounted by 15%, leaving $212,703.) The damages award comprised:

Non-economic loss $88,500
Past gratuitous attendant care services 34,680
Future gratuitous attendant care services 120,552
Past out-of-pocket expenses 1,507
Future out-of-pockets expenses 5,000
The award of damages to the plaintiff in this case is subject to Part 2 of the Civil Liability Act . The non-economic loss (pain and suffering and loss of amenities of life) followed the judge’s finding pursuant to s 16 that the severity of the plaintiff’s non-economic loss was 30% of a most extreme case.

57 After the accident, the plaintiff was reported as having suffered “an abrasion and bruising of the right buttock, tenderness in the region of the coccyx and her right wrist was tender and swollen with the maximum area of tenderness being at the radial styloid and base of the thumb.” X-rays revealed a fracture of the first coccygeal segment with no significant displacement. X-rays of the right wrist revealed marked degenerative changes at the thumb base but no evidence of a fracture. The plaintiff and her medical reports attribute her reduced physical capabilities following the accident to pain and restricted movement in her right hand and thumb and her lower back. The evidence discloses that the plaintiff had suffered from intermittent lower back pain since about 1995. She had received various treatments for this, including medication and physiotherapy. The plaintiff had also had difficulties with her right hand and thumb since at least 1997, when she suffered an injury following the collapse of a seat on a bus. There was some evidence that this developed into arthritic condition, necessitating the injection of medication to relieve her pain.

58 The principal contention of the defendant is that insufficient weight was given in the award for non-economic loss to evidence that the plaintiff’s medical problems were the result of her pre-existing ailments, and not the accident. This was the conclusion reached by Dr Bliss, whose reports were tendered by the defendant. The defendant says that the reports of Dr Bliss should be preferred to the medical reports tendered by the plaintiff, because Dr Bliss gave the only medical opinion in evidence based on his access to the plaintiff’s medical history before the accident.

59 The defendant also relies upon ss 15(2)(b) and 15(2)(c) of the Civil Liability Act, which provide that damages for gratuitous attendant care services are not to be awarded unless there is a reasonable need for those services which has arisen “solely because of the injury to which the damages relate” and that the services would not be (or would not have been) provided to the plaintiff but for the injury. The defendant says that, in the plaintiff’s case, the need for such services arose solely because of the plaintiff’s pre-existing medical problems.

60 In response, the plaintiff says that the judge’s reasoning was correct and the damages award should stand. She says that it was open to the judge to reject the evidence Dr Bliss as determinative of the issue and to prefer her own evidence as to the state of her health and her level of participation in physical activity prior to and after the accident.

Non-economic loss

61 The judge made the following findings in relation to the plaintiff’s physical capacity before the accident:

(1) She was able to play Bocce, a traditional Italian game of bowls, twice a week for three hours in the morning and three hours in the afternoon. A player has to bend down and bend his or her back and legs to lift the ball, which weighs approximately 1 kg.
(2) She was an accomplished cook of Italian cuisine.
(3) She made her own clothes, and she was accomplished in knitting, crocheting and dressmaking.
(4) She helped out at an old person’s home, where she assisted the disabled and elderly.
(5) She looked after her own domestic work. The home in which she and her husband lived consisted of two stories, containing three bedrooms, lounge, dining and breakfast rooms, with spare rooms downstairs. She did all of the household chores, including the washing, ironing and cleaning.
(6) Her recreations included swimming and, occasionally, fishing from the promenade.
(7) Although the plaintiff suffered an unrelated injury to her right hand some time prior to this accident, the effects of that injury cleared up quickly, and the plaintiff was not impeded in their everyday activities by reason of this pre-accident injury.
These findings were open on the evidence, despite recorded complaints by the plaintiff of low back pain since 1995, and radiological evidence in 2000 of the onset of osteoporosis, but they depended on the judge’s acceptance of the plaintiff’s evidence. He was not bound to reject her evidence because of her pre-existing conditions, as her evidence was not necessarily inconsistent with their existence. On the evidence, they could have been largely symptom-free.

62 The judge made the following findings in relation to the plaintiff’s physical capacity after the accident:

(1) At first, the plaintiff was unable to sit, she was sleeping poorly because of pain, and she had severe pain when travelling in a car. Her walking was limited by pain, and she was unable to use her right hand.
(2) She was unable to participate in swimming, playing sport or her usual household duties.
(3) Some eight months after the accident, the plaintiff had developed severe low back pain, which did not respond to physiotherapy. She had pain in her right thumb and wrist. The ability to do “house work, cooking etc” was significantly impaired. She was unable to play Bocce.
(4) Twenty-seven months after her accident, there had been little change to the plaintiff’s condition, despite the operative procedures to her thumb.
These findings were also open on the evidence and they were supported by the plaintiff’s medical evidence, but again they depended on the judge’s acceptance of the plaintiff’s evidence.

63 The particular issue raised by the defendant on appeal is whether the cause of these post-accident complaints of pain and disability was her pre-existing medical condition rather than the accident. An alternative issue is whether the accident exacerbated or aggravated her pre-existing medical condition.

64 The trial was conducted on the basis of medical reports without calling the doctors who wrote those reports as witnesses in the case, notwithstanding that the reports of Dr Trefely (the plaintiff’s family doctor) and various orthopaedic specialists retained by the plaintiff did not deal at all with the plaintiff's pre-accident medical history which had been investigated by Dr Bliss for the defendant. It is clear that the plaintiff’s orthopaedic specialists did not know of the extent of that history, so that the judge had no assistance from what their views may have been had they known of it, and Dr Trefely was not requested to attend for cross-examination in relation to the history of her pre-existing ailments recorded over the years.

65 Such an approach appears to be commonplace in the District Court these days, notwithstanding the sometimes stark contrast between the reports of each party. As such medical reports rarely deal with the views expressed in the other reports, the judge is left with the difficult task of determining which reports to accept without the very real assistance which can often be given by a medical witness when different facts as to what happened, and different views as to the consequences of what happened, are put to the doctor in cross-examination.

66 There is no suggestion in the present case that the views of Dr Bliss came as such a surprise to the plaintiff's legal representatives that they had no chance to have her doctors record their reactions to this new material or to seek to have Dr Bliss attend for cross-examination. The plaintiff bears the overall onus of proof on the issue of damages, and thus must face the consequences of her damages being assessed on the understanding that the opinions of her doctors were based on insufficient material and that the opinion of Dr Bliss was untested and unanswered. In my view, however, provided that absence of any challenge is taken into account, it does not follow that the tribunal of fact must necessarily accept the whole of the reports of Dr Bliss in favour of the defendant, without making its own assessment of the intrinsic value of his opinions based on the material before him.

67 Dr Bliss first saw the plaintiff in December 2002. He reported that the plaintiff was recovering from her fall, but had been left with limitations. He thought that her injuries and disabilities were consistent with the manner in which the accident is stated to have occurred. Having seen an x-ray, the doctor said that he did not think that the plaintiff had any pre-existing condition which may have predisposed her to the injuries she received. He did suspect the presence of osteoporosis. He thought that the plaintiff may have damaged her lumbar spine in the fall, and that she was likely to continue to suffer from some back pain. He did not think that the plaintiff suffered from any functional overlay. The doctor's prognosis was that a complete recovery from this type of injury rarely occurs in the plaintiff's age group, although he suggested that she would regain more function if she were determined to do so. He thought that the plaintiff would obviously continue to require assistance in keeping the house clean.

68 Dr Bliss next saw in the plaintiff in July 2004. At this stage, he expressed his doubt that the fall in January 2002 was the only source of the plaintiff's limitations. He assigned the reason for her continuing problems as being, in part, her resentment at the defendant's negligence rather than to the physical injury itself. The doctor accepted that the fall could have exacerbated the degenerative condition at the base of her right thumb. He said that, if the plaintiff's complaints were to be accepted, her continuing incapacity was "major". Her inability to play bowls arose from the pain in her back and her inability to hold a heavy bowl and bend low enough to project the bowl along the lawn. Dr Bliss now perceived some evidence of functional overlay, but he accepted the plaintiff's inability to bake, knit or sew at all. Later in his report, however, he expressed a different view, that he did not think that the plaintiff's wrist was really as bad as she stated so as to totally incapacitate her from activities such as knitting, sewing and baking. He thought that this was a result of ageing rather than the fall, the effects of which, he said, had been resolved by this time, partly due to a recent surgical intervention to the plaintiff's thumb. The doctor said that the plaintiff would continue to deteriorate "as much as to ageing as due to any long-term “affects” [sic] of the injuries", although he thought that she may have remained fitter if she had continued to play bowls. He dismissed the need for a live-in carer, but he thought that, if the need did arise, it could be a result of ageing and not the effects of the accident.

69 Following this second report, Dr Bliss was provided with the plaintiff's family doctor's hand-written notes and further reports by him “plus other reports including some of investigations". It is unclear from the third report from Dr Bliss, dated 13 July 2004, just who had prepared the other reports and investigations to which he referred, although they may well have been radiological investigations and reports. Dr Bliss drew attention to the fact that the plaintiff had suffered from backache and "reduced walking distance" in 1995. In 1997, she complained of right hip and sacroiliac joint pain radiating to the left thigh, with low back pain, for which she attended hydrotherapy. Also in 1997, the plaintiff was found to have osteoarthritis at the base of her right thumb. In 1999, she fell at Clovelly when she bruised her leg and had a painful left shoulder with a restricted range of movement. In 2000, the plaintiff slipped at bowls and had pain in her left shoulder. Chest x-rays also showed some osteoporosis in the lumbar spine (as did later x-rays in April 2004). Later in 2000, the plaintiff sprained her right ankle, which was painful and she was on crutches for four weeks. In March 2001, the plaintiff complained again of the low back pain. Except in relation to the incident in late 2000, Dr Bliss does not appear to have considered the periods of incapacity (if any) arising out of these incidents to be significant. The typed extracts of the family doctor’s notes disclose some other such material, but the ones to which i have referred in this paragraph are those that Dr Bliss thought to be sufficiently significant to include in his third report.

70 Dr Bliss now expressed doubts as to the degree of the plaintiff's limitations in her domestic situation, but the basis for that opinion appears to be simply one that, because her physical and radiological examination did not demonstrate those limitations, the existence of those limitations should not be believed. He said at one stage of his report that the plaintiff’s current limitations “do not have much to do with the accident” (my emphasis). At another stage of his report, the doctor said that the condition of the plaintiff’s thumb was due solely to a pre-existing degenerative condition, although the fall could have triggered pain “for a time but not disabling up until now [July 2004]”, and that she may not be trying as hard because she felt depressed.

71 The doctor also expressed doubt that the plaintiff would have been able to carry out the tasks she claimed to carry out before the accident. Notwithstanding all this, he concluded:

Overall therefore I do not think that despite the many, many visits to her family doctor in the past that this alters the opinion expressed in my two [previous] reports.

He emphasised that his previous opinion that the plaintiff would need nursing and domestic care in the future would probably be because of ageing and not the effects of the accident.

72 The judge held that cause of the plaintiff’s continuing complaints and disabilities was her fall in the accident, and he rejected the defendant’s argument that they were the natural consequence of her previous ailments. He did so on the basis that he accepted the evidence given by the plaintiff, whom he described as a “truthful and reliable witness”, and that he was persuaded that “the injury which she suffered in the fall in January 2002 is the cause of her current disability.” He accepted the plaintiff’s evidence that she had been an active woman prior to the accident, and that, had the accident not occurred, she would have been able to continue her participation in these activities for many years to come. He did not accept the opinion of Dr Bliss that the ageing process would by now have restricted the plaintiff’s activities to the degree to which they are now restricted.

73 In relying solely on the plaintiff’s evidence that she had suffered her pain and disabilities only after the fall in determining that the fall was the sole cause of that pain and disability, the judge gave no express consideration to the uncontradicted evidence that she had the pre-existing ailments already referred to, even though it was open to him to accept her evidence that they were largely pain-free. Of particular importance was the pre-existing degenerative condition of the plaintiff's right thumb, which was one of the principal causes of her inability to play bowls after her fall. The other principal cause of that inability was the pain in the plaintiff's back, which was also a principal cause of her inability to do her housework.

74 The absence of any express consideration of those matters by the judge leads strongly to the conclusion that either he did not consider them to the relevant or he gave them insufficient weight. In my opinion, in either case error has been demonstrated, and it therefore becomes necessary for this court to consider for itself whether the plaintiff's pre-existing medical condition was the cause of her complaints of pain and disability rather than the fall, or alternatively whether the fall exacerbated or aggravated her pre-existing medical condition to produce her pain and disability.

75 I accept that, as argued by the plaintiff on appeal, no error has been demonstrated in the judge’s finding that her pre-existing ailments did not prevent her from carrying out her activities on a regular basis before the fall. Nevertheless, I also accept that the evidence of the plaintiff's doctors must be significantly qualified because of the absence of any consideration by them also of her pre-existing ailments. However, I do not accept that plaintiff’s next argument, that the evidence shows that her back had “fully recovered” by the time of her fall. The fact that the plaintiff suffered pain intermittently for some years prior to her fall demonstrates that there must have been some underlying condition, one which sometimes produced pain and sometimes did not. Nor do I accept the plaintiff’s argument that, because not every one of the matters raised by the defendant on appeal in relation to her pre-existing ailments had been put to her in cross-examination, the defendant should not be permitted to rely on the reports of Dr Bliss insofar as they are based on the matters which had not been put to her. All those matters were in evidence, in the records of the plaintiff’s family doctor. They arose to a very substantial extent during the course of her evidence, and sufficiently to entitle the defendant to rely on the reports of Dr Bliss without procedural unfairness. As to her pre-existing back pain, this was adequately dealt with in her evidence at the following pages of the Black Appeal Books: 19, 82, 85, 86, 88, 89 and 90. As to her pre-existing problem with her thumb (and hand generally), this was adequately dealt with at the following pages: 61, 83, 84, 85, 86 and 87. There was no breach of the rule in Browne v Dunn (1894) 6 R 67.

76 Considering all of the material in evidence for myself, I do not accept the defendant's argument that the reports of Dr Bliss support its claim that the plaintiff's present condition would have been the same without the fall on the promenade in January 2002. The defendant's argument overlooks the important statement made by Dr Bliss in his third and last report that, despite everything disclosed in the material produced immediately before that report was written, he remained of the opinions expressed in his two previous reports. The opinions expressed in his two previous reports were that, on the basis of an x-ray he had seen, he did not think that the plaintiff had any pre-existing condition which may have predisposed her to the injuries she received, that she may have damaged her lumbar spine in the fall, and that the fall could have exacerbated the degenerative condition at the base of her right thumb. In his second report, Dr Bliss said that, in his opinion, the plaintiff had become disabled “for a number of reasons”, and that the fall was not necessarily “the only source of her limitations”. In his third report, he conceded that the plaintiff’s current limitations did have something (although not much) to do with her accident, and that the fall could have triggered some pain in the plaintiff’s thumb.

77 It was, as I have already stated, open to the judge to accept the plaintiff's evidence as to both her ability to carry out her normal activities before the incident and her pain and disabilities immediately after the accident and continuing. Dr Bliss does not address the precise coincidence of the sudden onset of the plaintiff's continuous pain and disabilities with the fall in her accident — except for the implicit suggestions that the plaintiff could not have been able to carry out her pre-accident activities and that her present limitations have been exaggerated. In the light of the judge's findings that the plaintiff did carry out those activities, and (based in part of the reports of the plaintiff’s doctors) that she does suffer from those limitations, the fundamental thesis put forward by the defendant collapses.

78 In my opinion, in the light of the judge's findings of fact (other than as to the cause of the plaintiff’s post-accident condition), the medical evidence should be treated as accepting that the fall caused some new problems for the plaintiff, that it exacerbated the plaintiff's pre-existing and largely pain-free conditions, and that she suffers continuing effects of the fall. The somewhat grudging nature of the concession made by Dr Bliss that she did continue to suffer at least some effects is dependent on his disbelief of much of the plaintiff's claim of such continuing effects. As the judge has accepted her evidence that she does continue to suffer from those effects, I reject the limitation which Dr Bliss has imposed on that concession.

79 The new problems for the plaintiff produced by the fall were the immediate effects of the fracture of part of her coccyx, and the abrasions and bruising to her right buttock. I am not satisfied on the evidence that those particular effects still continue. In my opinion, the fall exacerbated the effects of the pre-existing degenerative condition of her right thumb and the condition of her back which before the fall had produced intermittent pain. What had previously been intermittent pain became virtually continuous, and disabling, pain. I see no reason to disturb the judge’s findings as to the plaintiff’s continuing pain and disabilities, set out in par [62] supra, except that I would classify them as the effects of the exacerbation of the plaintiff’s previous ailments rather than the result only of her fall. The major exacerbation was to make virtually continuously painful and almost completely disabling what had previously been only intermittently painful and disabling to a minor degree.

80 The next issue which arises is the length of time during which the exacerbation will continue and whether and when the continuous pain and disabilities would have developed in any event as a result of the normal course of the ageing process on the plaintiff’s pre-existing ailments, without the fall. (I have already rejected the defendant’s argument, based on a misunderstanding of the evidence of Dr Bliss, that they would have developed at the time of the fall even without that fall: par [75] supra.) This present issue is by no means easy to determine without the assistance of any evidence from the plaintiff’s doctors. Indeed, one course would be to send the issue of damages back to the District Court for reassessment, when the judge will have the assistance of balanced medical evidence. However, as I stated earlier (at par [66]), the plaintiff (as the overall bearer of the onus of proof on the issue of damages) must face the consequences of the inadequacies of the procedure adopted in relation to the medical evidence in the District Court.

81 The plaintiff was seventy-two years of age at the time she fell. She is now seventy-six years of age. Her life expectancy as at the date of the trial (September 2004) was 13.6 years. No current figure for life expectancy was given on appeal. It is reasonable to make the assumption, based on the history of the plaintiff’s pre-existing ailments, that even without the fall she would in time have suffered some restriction of movement and some back pain which would interfere with her pre-accident activities, but I am not prepared to find, as the defendant asserts, that without the fall she would ever have reached the state of pain and disability from which she now suffers. I am satisfied that the effects of the exacerbation of the plaintiff’s pre-existing ailments will be permanent, although an allowance must be made in assessing her non-economic loss for the fact that the ageing process would eventually have produced some pain and disability even without the fall.

82 The judge found that the severity of the plaintiff’s non-economic loss was 30% of a most extreme case. The defendant has submitted that this should be reduced to 20%. That submission was based on the defendant’s view of the medical issues which I have almost wholly rejected. In my opinion, a much more modest adjustment is required following the views I have expressed in the last four paragraphs of this judgment. I would reduce the percentage of a most extreme case from 30% to 27%. As this is a rehearing on the issue, the law to be applied is that which applies as at the date of the rehearing: Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742 at 745. That decision was applied by this Court in relation to s 16 of the Civil Liability Act in Coleman v Barrat [2004] NSWCA 27 at [70]. The maximum amount of damages for non-economic loss in a most extreme case had been increased at the time of the hearing of the appeal to $400,000. The calculation presented by the s 16 schedule is 10% of that figure, or $40,000. I would therefore include in the plaintiff’s damages an amount of $40,000 for non-economic loss.

Gratuitous attendant care services

83 Section 15(2) of the Civil Liability Act is in the following terms:

No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:
(a) there is (or was) a reasonable need for the services to be provided, and
(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and
(c) the services would not be (or would not have been) provided to the claimant but for the injury.

84 The defendant has submitted that the judge should have found that the plaintiff’s need for the gratuitous attendant care services provided by her husband did not result from her fall. That submission must fail by reason of my finding that the fall caused some new problems for the plaintiff and that it exacerbated the plaintiff’s pre-existing and largely pain-free conditions (see par [78] supra).

85 Alternatively, the defendant has submitted that the judge should have found that the need for the gratuitous attendant care services did not arise “solely” from the fall. The judge did in fact take into account that, at some stage in the future, there would, even without the fall, have been a need by both the plaintiff and her husband for attendant care, and he reduced the sum awarded for future care by 20% for that reason.

86 The defendant next submitted that the amount awarded was unreasonable, in that it took into account the “meticulous” way in which the plaintiff had previously kept the house, and that the judge should have reduced the number of hours’ assistance he had assessed. I regard that submission as specious, and I would reject it. Then it is submitted that, as a commercial rate was allowed, the number of hours should have been reduced because a commercial cleaner would have taken less time than the plaintiff’s husband to clean the house. That point could only be made good if the judge had adopted the cost of commercial cleaners as a guide, although it is unnecessary to determine the point in this case. That is because it has not been demonstrated to my satisfaction that the judge made such an error (if error it be) in assessing the amount awarded. He has used as the cost of obtaining attendant care statistical figures published for use in accordance with the Civil Liability Act, not the cost of obtaining commercial cleaners.

87 The defendant spent some time arguing that an excessive time has been allowed for the rubbish to be taken outside to the rubbish bin, and for the bin (once a week) to be taken out to the street for collection, and that an excessive time has been allowed for gardening vegetables rather than flowers or vice-versa, but this is nitpicking. It does not warrant an interference with the assessment made. It was suggested that, as the plaintiff’s husband would have accompanied her shopping in any event, she should not be compensated for her present need to have him drive her. I am not satisfied that the plaintiff’s husband would in any event have continued into the future to do so. But the issue is the plaintiff’s need. Very little attention appears to have been given to these nitpicks at the trial. I am not satisfied that the judge made any error in his assessment of the number of hours for which the plaintiff needed assistance.

88 For completeness, I should add that it has not been argued by the defendant in this appeal that, where the need was caused by an exacerbation of a pre-existing condition, it has not arisen “solely because of the injury to which the damages relate”. In case that particular argument may be added in a further spate of new points taken by the defendant, I should add that I am satisfied on the evidence in this case that the plaintiff’s need for attendant care services in the present case arose solely by reason of the exacerbation caused by her fall, and that, without the accident, the need for this care because of the plaintiff’s physical condition would not have arisen by the time of the trial.

89 But there remains one issue yet to be determined. As the need is caused by that exacerbation, there will inevitably come a time when the effect of the ageing process on the plaintiff’s pre-existing physical condition would have brought about the need for attendant care services even without the fall, and despite my observation (at par [81] supra) that, without the fall, the plaintiff would not ever have reached the state of pain and disability from which she now suffers. This is important in relation to the future award of damages for such services. There is no specific medical evidence on the point other than that of Dr Bliss, but his evidence is tainted by his disbelief in the plaintiff’s complaints.

90 Bearing in mind the plaintiff’s ability to keep very active before her fall (when she was seventy-two years old) notwithstanding her pre-existing ailments, it is, in my view, reasonable to approach this issue on the basis that she would have continued to be able to do so until she was about eighty years old. This means that the period of the future gratuitous attendant care services as at the time of the trial should have been eight years rather than the plaintiff’s life expectancy at that time of 13.6 years.

91 No evidence of the current cost of those services has been produced. It is not possible to compensate for whatever increase has occurred by the award of interest on this part of the judgment of this Court as from 10 September 2004, the date of the judgment in the District Court. That is because s 18 of the Civil Liability Act precludes the award of interest on gratuitous attendant services (and on non-economic loss). The figure obtained from the 5% tables for eight years is $103,680. That figure must then be reduced by 20%, as was the higher figure adopted at the trial reduced, to take account of the fact that, at some stage in the future, there would, even without the fall, have been a need by both the plaintiff and her husband for attendant care. This produces a new component of damages for future gratuitous attendant care services of $82,944, which in accordance with s 16(4) must be rounded to the nearest $500, $83,000.

92 It follows that the plaintiff’s damages would now be $164,187, comprising:

Non-economic loss $40,000
Past gratuitous attendant care services 34,680
Future gratuitous attendant care services 83,000
Past out-of-pocket expenses 1,507
Future out-of-pockets expenses 5,000

Conclusions
To summarise:
(1) The defendant owed the plaintiff a relevant duty of care. It is not necessary to determine whether obviousness of risk is relevant to the question of duty, because, even assuming it was, the defendant would have owed the plaintiff a duty in this case.
(2) The defendant breached its duty of care to the plaintiff by failing to close each promenade to the public until such time as the remedial works on that promenade were completed.
(3) The defence of voluntary assumption of risk is not made out, because plaintiff did not fully appreciate the risk she took in entering the sea baths by way of the promenade.
(4) The judge erred in finding the plaintiff guilty of contributory negligence.
(5) The judge erred in assessing the damages to be awarded to the plaintiff for non-economic loss because (a) either he did not consider the uncontradicted evidence that the plaintiff had pre-existing ailments at the time of her fall or he gave them insufficient weight, and (b) he did not consider whether those ailments were the cause of her post-accident pain and disability or whether that pain and disability resulted from an exacerbation of those pre-existing ailments.
(6) This error required the amount awarded for non-economic loss to be reassessed as $40,000.
(7) An error of the same kind required the amount awarded for future gratuitous care services also to be reassessed at $83,000.

Orders

93 I propose that the following orders be made:

(1) The appeal against liability is dismissed.
(2) Leave is granted to the respondent to file her cross-appeal against the judge’s finding that she was guilty of contributory negligence.
(3) The cross-appeal is allowed.
(4) The appeal against the damages awarded is allowed.
(5) The appellant is to pay the respondent the sum of $164,187.
(6) This judgment, as to the sum of $124,187, is to take effect as from the date of the judgment in the District Court and, as to the balance of $40,000, it is to take effect as from the date of this judgment.
(7) The appellant is to pay the respondent’s costs of the trial.
(8) The appellant is to pay 60% of the respondent’s costs of the appeal.

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