Williams v Wollongong City Council

[2020] NSWDC 564

District Court

New South Wales

Medium Neutral Citation:

Williams v Wollongong City Council [2020] NSWDC 564

Hearing dates:

18 August 2020; 20 August 2020; 24-25 August 2020; 26 August 2020 (written submissions); 27 August 2020 (oral submissions)

Date of orders:

24 September 2020

Decision date:

24 September 2020

Jurisdiction:

Civil

Before:

Dicker DCJ at Wollongong

Decision:

(1) Judgment for the plaintiff.

(2) The defendant is to pay the plaintiff’s costs as agreed or assessed.

(3) The parties are to bring in agreed short minutes of order consistent with the court’s reasons within 14 days.

(4) Any application to vary the costs order in order (2) above is to be made within 14 days.

(5) Any party may relist the matter on 3 business days’ notice.

(6) Exhibits to be retained until further order.

Catchwords:

Torts – negligence – Civil Liability Act claim – fall from first step of a stepped pathway – liability in issue – past economic loss – attendant care services claims

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Liability (Non-Economic Loss) Amendment Order 2019

Cases Cited:

Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176

Avopiling Pty Ltd v Bosevski [2018] NSWCA 146

Hill v Forrester [2010] NSWCA 170

Jackson v McDonald’s Australia Ltd [2014] NSWCA 162

Jones v Dunkel (1959) 101 CLR 298

Lloyd v Thornbury [2019] NSWCA 154

Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Miller vGalderisi [2009] NSWCA 353

Newell v De Costi [2018] NSWCA 49

Nicholson v Nicholson (1994) 35 NSWLR 308

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Reece v Reece [1994] NSWCA 259

Smith v Alone [2017] NSWCA 287

Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182

White v Benjamin [2015] NSWCA 75

Category:

Principal judgment

Parties:

Bernard Roy Williams (Plaintiff)
Wollongong City Council (Defendant)

Representation:

Counsel:
R O’Keefe (Plaintiff)
S Glascott (Defendant)

Solicitors:
Nikolovski Lawyers (Plaintiff)
McCulloch & Buggy Lawyers (Defendant)

File Number(s):

2019/00154842

Judgment

1. The plaintiff in these proceedings, Mr Bernard Williams, brings a claim against the defendant, Wollongong City Council, the controller, manager and owner of a park named Mount Keira Summit Park (“the Park”), which is near the city of Wollongong, for damages in relation to personal injuries suffered by the plaintiff on 17 May 2016 when he fell from the top step of a stepped walkway leading to the toilet amenities at the Park. The plaintiff injured his left elbow and wrist in the fall. At the time, the plaintiff, who was a disability support mental health worker for an organisation entitled House With No Steps, was generally supervising an adult disabled person who was proceeding towards the toilet amenities block in order to use the facilities. The proceedings are brought by the plaintiff against the defendant under the Civil Liability Act 2002 (NSW) (“CLA”).

2. There are a number of matters which are not in dispute between the parties including in relation to the medical evidence and aspects of the expert liability evidence. It is not in dispute that the defendant owed persons who included the plaintiff a duty of care although the content of the duty of care appears to be in issue. It is also not in dispute that the plaintiff suffered an injury to his left elbow and left wrist in the accident. The plaintiff is left hand dominant.

3. However, the defendant has denied liability and submits that it did not breach the duty of care which it owed to the plaintiff. It says the plaintiff's trip and fall and the injuries he suffered were as a result of the plaintiff failing to exercise reasonable care for his own safety.

The pleadings

4. The plaintiff commenced the proceedings by the filing of a Statement of Claim on 16 May 2019. An Amended Statement of Claim was later filed.

5. In substance, the plaintiff pleads his cause of action as follows:

1. As at 17 May 2016, the defendant Council owned, controlled and managed the Park and provided to members of the public at the Park a place for recreation with various facilities including public toilets and footpaths. It is pleaded that the defendant employed personnel to inspect and maintain all improvements within the Park including footpaths and owed a duty of care to entrants to the Park to take reasonable care to avoid foreseeable risks of injury;

2. Within the Park, the defendant constructed and maintained a footpath made from brown coloured rectangular brick pavers which led from the car park to a toilet block with the intent of providing reasonably safe means of access to the toilets. It is pleaded that the footpath contained three single descending steps for persons walking towards the toilets separated by a landing. The steps were pleaded to be constructed from the same brown coloured rectangular brick pavers;

3. At all material times, the footpath and each single step were subjected to shadowing from overhanging trees within the Park thereby creating a variety of lighting conditions. It is pleaded that at all material times there were not any handrails adjacent to each single step;

4. The plaintiff pleads that at all material times by reason of their design, the construction materials used and their location within the Park where they were subjected to overshadowing from trees, each single step on the footpath posed a not insignificant risk of injury due to tripping and/or missing the step;

5. It is pleaded that the defendant at various times surveyed the features of the Park, constructed multiple sets of steps, installed handrails along various steps and footpaths and installed tactile indicators to alert persons to hazards including steps on newly constructed footpaths. However, these various items including handrails and tactile indicators were not placed at or near the footpath in question;

6. In paragraph 16 of the Amended Statement of Claim filed 2 July 2020, the plaintiff pleads the content of the duty of care allegedly owed by the defendant to entrants to the Park which is stated to include an obligation to take reasonable precautions against the risk of harm. Various matters are pleaded which ought to have been adopted by the defendant to minimise the risk of harm including arranging a risk assessment at the Park, identifying the single steps as a potential trip hazard, placing a warning to entrants in relation to the footpath, installing non-slip strips or tactile markers to the leading edges of the single steps, painting the leading edges of the single steps to make them visible to entrants, erecting a hand rail near the steps, removing the steps, removing vegetation causing overshadowing of the footpath and installing tactile ground surface indicators;

7. The facts of the plaintiff's presence at the Park with a disabled person under his supervision on 17 May 2016 and the fall are pleaded. Paragraph 19 pleads as follows in part:

“As he did so the single steps were shaded by overhanging trees and the plaintiff did not see the first single step that he encountered as he walked along the footpath and consequently he experienced a misstep and fell and sustained serious injury”;

8. A breach of duty of care is pleaded with the particulars of breach being as follows:

“(a)  Failed to arrange a risk assessment to be carried out on the footpath at the Park;

(b)  Failed to identify the single steps as a potential trip hazard;

(c)  Failed to warn entrants that the footpath contained single steps and trip hazards;

(d)  Failed to install non slip strips or tactile markers or some other device along the leading edges of the single steps to make them visible to entrants;

(e)  Failed to paint leading edges of the single steps to make them visible to entrants;

(f)  Failed to erect a handrail adjacent to the single steps to make them visible to entrants;

(g)  Failed to remove the single steps during landscaping works carried out at the Park in 2006;

(h)  Failing to remove vegetation causing overshadowing of the footpath;

(i)  Failing to perform remedial works to the footpath so it complied with the BCA, AS 1680.1, AS 1428.1 and AS1657;

(j)  Failing to install tactile ground surface indicators that complied with AS 1428.1 and AS 1428.4;

(k)  Failing to install temporary barricades to prevent pedestrians using the steps until such time as permanent remedial work could be performed on the single steps;

(l)  Failing to erect suitable warning signs near the single steps alerting pedestrians to their presence.”

9. Causation is pleaded and the Amended Statement of Claim includes particulars of injury including left radial head fracture, left wrist fracture and the requirement for multiple surgeries and ongoing medication and medical assessment with chronic pain and the total loss of earning capacity.

6. A detailed Amended Statement of Particulars was relied upon. The particulars of injuries received included injury to the left wrist, injury to the left elbow and depression. Various continuing disabilities are particularised including pain in the left wrist and hand, pain in the left shoulder and arm, pain in the left shoulder with stiffness in the left wrist and various difficulties including difficulty gripping and reduced fine motor skills in the left-hand.

7. A Defence to the Amended Statement of Claim was filed on 7 August 2020. This admitted that at all relevant times including as at 17 May 2016 the defendant was the owner, controller and manager of the Park and provided public toilet facilities at the Park and employed personnel to inspect and maintain all improvements within the Park including footpaths for use by members of the public. In paragraph 2(b) of the Defence, the defendant admits it owed entrants, being members of the public, a duty to exercise reasonable care but otherwise did not admit the plaintiff's formulation of the duty of care.

8. The defendant denies liability and says that the risk of harm posed by negotiating the three steps at the Park where the plaintiff fell was an obvious risk for the purposes of ss 5G and 5H of the CLA. Contributory negligence is pleaded. Paragraph 11 of the Defence pleads s 43A of the CLA but that was not relied upon at the trial.

9. A Reply was filed by the plaintiff on 6 August 2019 but this related to the defendant’s pleading of s 43A of the CLA and is thus not relevant.

10. The plaintiff was born in March 1954 and was thus 62 years of age at the time of the accident and 66 years of age at the time of the final hearing. Apart from a very limited period undertaking some administrative duties after the accident, the plaintiff has not worked since the accident and is now retired. There is accordingly no claim for loss of future earning capacity by the plaintiff.

The plaintiff's work history

11. As stated above, the plaintiff was a disability support mental health worker at the time of the accident with House With No Steps. The job description for a disability support worker at House With No Steps was in evidence. As well as requiring a current driver's licence and a current first aid certificate, it is clear from the job description that a disability support worker in the plaintiff's position was required to undertake a number of physical tasks in the course of their employment including the ability to safely perform people and manual handling tasks which may involve assisted lifting, bending, twisting, pushing, pulling and repetitive actions as well as the ability to supervise safely a disabled person. A worker was required to provide group home and in-home support services which were to assist disabled clients with domestic and household duties including household maintenance. The physical demands of the position were outlined in some detail in the job description and involved lifting, pushing and pulling between 5-10kg on a frequent basis and up to 25kg on an occasional basis. Repetitive reaching and sustained gripping was required.

12. In evidence was a resume for the plaintiff which showed that he had worked in disability services since 1992 having been promoted during that period from a supervisor to a facility manager. Prior to that time, the plaintiff worked in various other positions including as a production operator and production supervisor for MM Metals Pty Ltd, as a barman and doorman and as an underground miner.

Documents relating to construction work at the Park by the defendant

13. In evidence was extensive documentation relating to historical construction and development by the defendant at the Park. An Application for Building Approval for an amenities block was made by the defendant on 4 March 1986. At that time, the Park was described as being used as a “public recreation area”. Concept drawings dated February 1993 relating to proposed construction at the Park show the toilet block to be constructed with the footpath where the accident occurred noted with the description “access steps”. Near the access steps was a proposed curved area providing ramp access. In an area of the Park to the north east of the proposed facilities block, other access steps are indicated which later were apparently removed. The plaintiff relies on their removal as indicating that the defendant reviewed the Park and decided that the removal of the other steps was appropriate but did not remove the steps where the accident occurred. A Master Plan for the work at the Park also indicated both sets of steps.

14. A Statement of Environmental Effects prepared by the landscape architectural section of the Council in June 2004 indicated that the defendant proposed to upgrade the lookout at the Park and the surrounding area following consultation internally within the defendant Council. It is noted in paragraph 1.3 of the Statement of Environmental Effects that “disabled access” was also featured on the site and that the objectives of the upgrade included meeting “all safety measures for users”. The document described the major benefits of the upgrade as being improvements to the Park and lookout area satisfying the community interest in rectifying an otherwise unutilised space.

15. Other documents show that handrails were inserted at areas in the Park in the upgrade. A pro-forma letter dated 22 June 2004 from a Mr Palmer, a landscape architect at the defendant Council, stated: “The design will address safety principles at the lookout and provide access for the disabled”. Meeting notes from persons involved in the upgrade noted that rails on a balustrade fence and a handrail on the outside of the disabled ramp were to be installed. Following further consideration, handrails and tactile indicators were discussed as being needed for the viewing platforms at the Park and were installed, despite considerable cost, by the defendant. It appears that tactile indicators were proposed for persons including the visually impaired to show a change in pathways at the Park. Email correspondence from early 2005 which was tendered shows that Mr Palmer, a landscape architect at the defendant Council, recorded the installation by a contractor of a handrail along the footpath plus tiles including tactile indicators on some steps at the Park.

16. There were various photographs in evidence of the area where the accident occurred. These showed that the relevant area was altered over time including by the removal of bollards near the footpath on the approach to the steps in question, the removal of a pergola, and changes to vegetation near the steps.

17. In evidence was a document relating to an apparent nomination for an award to the defendant Council in 2005 concerning the Park upgrade. The photographs in the document show extensive use of tactile indicators on the paths and the installation of handrails particularly on the pathways leading to and at the Park lookout. The awards document provides: “Tactile pavers, matt black ceramic tiles, custom designed seats and tables and powder coated and stainless steel fencing and hand railing are the other landscape components at the site.” The awards document makes clear that the upgrade was designed with disabled persons in mind: “The site has been designed in a way to enable equal access…”

18. In evidence was a risk assessment prepared for the defendant Council by a senior property risk consultant at Vero Corporate Risk Control dated 3 May 2007. While the assessment appears primarily aimed at fire related risks, it is clear that the Council was willing to undertake risk assessments at the Park when they were deemed necessary or desirable.

Evidence for the plaintiff

Oral evidence of the plaintiff

19. The plaintiff gave evidence that he lived in a suburb of Wollongong in a house where he had lived for 32 years. Although the house is leased from the Aboriginal Housing Corporation by the plaintiff and his wife, they maintain the gardens and lawns at the property. The plaintiff confirmed that he was born in March 1954. He said he completed school until the age of 15 and left in 1968.

20. The plaintiff gave evidence that a chronology, which became Exhibit A, was correct which summarised his working background and significant family events. The plaintiff said he had two children. His daughter, who was married and had two children, lived close to his place of residence. Later evidence was given by the plaintiff that he saw his daughter daily and that she assisted sometimes with household tasks for about 30 minutes per week. The plaintiff's son-in-law now undertakes the lawn mowing at the plaintiff's place of residence.

21. The plaintiff gave evidence that he left a job at MM Metals Pty Ltd in 1992 to work with a body called the Greenacres Association which assisted people with disabilities in undertaking packaging and assembly work. This was done in one of two workshops. Eventually the plaintiff became the Facilities Manager in charge of 82 people.

22. The plaintiff left Greenacres in 2009 to join the House With No Steps which was a company which assisted disabled people.

23. Prior to the accident, the plaintiff gave evidence that he was active with lawn bowls, golf, fishing and camping either by himself or with his family. Since the accident, the plaintiff said he was unable to do a number of activities including fishing because of problems with his left hand including an inability to tie knots or place bait on the hooks.

24. The plaintiff said that his position at the House With No Steps was as a disability support/mental health worker: T39.23. The position involved him assisting with respite care for disabled persons to give their family a break. This required taking disabled persons for weekends or a week at a time as part of respite care. Various activities were completed by the plaintiff with disabled persons as part of respite care including walking, fishing, shopping, cooking and other outdoor activities. The position was a fulltime job and involved considerable overtime particularly in the two years prior to the plaintiff’s injury in May 2016. The plaintiff could work for 67 hours a week with some variation. He said that he enjoyed his work.

25. The plaintiff gave evidence that there were physical requirements in the job including the need on occasions to deal with wheelchairs and walkers as well as to assist residents with domestic tasks such as cleaning, washing, vacuuming, mopping, and cooking and, with some clients, assisting them with bathing and toileting. The plaintiff said that he hoped to continue his job until aged 68 as there was no formal retirement age.

26. The plaintiff stated that he had as part of his duties assisted disabled people in accessing toilet facilities in shopping centres and at various parks. Importantly, the plaintiff gave evidence that prior to the accident in May 2016, in his 23 years of work in the disability sector he had never encountered steps leading to a disabled toilet: T41.40. The plaintiff repeated this evidence on a number of occasions during the hearing.

19. The plaintiff gave evidence in chief that he had attended the Mount Keira Summit Park once prior to the accident when he went in the September/October school holidays in 2015 with his son and grandchildren. He said that on that occasion he did not use the toilets at the Park and had never used them prior to the accident. In his cross-examination, the plaintiff added that he had attended the area near the Park with a disabled client prior to the accident but had parked about 500m to 700m away from the area involved in the accident and had taken the client on a bushwalk. Prior to the accident, the plaintiff said that he had never walked on the pathway involved in the accident.

20. The plaintiff then gave extensive evidence about the day of the accident. He said he went to the Park with a disabled client in his late 30s or early 40s who had an acquired brain injury arising from a motor vehicle accident and had limited vocabulary. The plaintiff stated that he attended the Park with the client to have lunch and to look at the view. Ambulance records were later tendered which showed that the plaintiff was incorrect in his evidence in chief that he arrived between 11:30am and 11:40am on the day of the accident. The ambulance records suggest that the accident occurred at about 11am-11.15am. Despite these records, the plaintiff said his recollection remained that he arrived at that time for lunch. It is possible that the plaintiff did arrive for an early lunch but also that he arrived with the client for morning tea.

21. The plaintiff stated that the weather when he arrived was fine and sunny. The plaintiff said that after he parked his car he walked with the client to the viewing area at the lookout. He said in order to do so he went up and down steps. He observed discs or buttons placed on the ground at the top of the steps with handrails on the right. These were inserted in the pavement. The plaintiff indicated that on the day of the accident, he viewed the discs or buttons as indicating a hazard ahead being something like steps: T46.37. The plaintiff said he had seen the discs or buttons before in many places including around Wollongong Harbour and in shopping centres and parks where there were stairs. He said the buttons were of some relevance to his work as he would keep an eye on his disabled clients to make sure they did not fall down the stairs: T47.4. He agreed that prior to stopping for lunch he had seen other steps with buttons and handrails at the Park. Having regard to later evidence, it is clear that the plaintiff’s references to “buttons” were to tactile ground surface indicators (“TGSI” or “tactile indicators”), which are used to warn people, including vision impaired persons, of approaching hazards.

22. The plaintiff said that he then had lunch at a picnic table with the client for about 20 minutes. At the time, he said he saw surveyors working in the Park.

23. At some stage, the client stood up and said “toilet, toilet” and headed at a quick pace from the picnic table up the roadway to go to the toilet amenities at the Park. Mr Williams said the toilet block could be seen from where they were sitting at the picnic table. The plaintiff said that at that time on the day of the accident there was a pergola about 10 feet from the toilet block.

24. The plaintiff said he was walking about 10 to 15 feet behind the client as he walked to the toilet: T49.1. The plaintiff stated that he saw the client walk towards the ladies toilet and then called out to him to direct him towards the disabled toilet as he saw the sign on the disabled toilet door. Having satisfied himself that the client was following his directions and was walking towards the disabled toilet, the plaintiff headed down what he thought was a path directly down to the disabled toilet. He said that there were trees in the vicinity which cast shade onto the ground in front of where he was walking: T49.30. The plaintiff said the path appeared to be on the same level but was sloping down to the toilet. The path was made of brick pavers which were brownish in colour, and as far as the plaintiff could see, led a straight path to the door of the disabled toilet: T50.21. The plaintiff said that he did not notice that the bricks were laid in a particular pattern and did not see changes in the pattern in the bricks as he was walking towards the pathway. Similarly, he said he did not see any metal discs or buttons in the pavement or a handrail. Further, he said did not see any steps in the pathway leading down to the disabled toilet: T50.39. The plaintiff confirmed that he was looking down to the toilet as he walked onto the pathway: T50.43. At that time, the client had walked past the ladies toilet and was walking to the disabled toilet: T50.45-T51.2.

25. The plaintiff then said he fell and landed on his left arm and hand. He described the accident in the following terms:

“Q. Can you tell us how did you fall?

A. I fell down on my left side, on my left arm, hand and I just – I didn’t – just didn’t realise. I thought I was walking down a path and I just fell.

“Q. What part of your body first hit the ground?

A. My left hand.

Q. Did you feel pain when you hit the ground?

A. Yes.

Q. Where was the pain?

A. Right on through my arm.” (T51.17-.28)

34. The plaintiff said that once he landed he looked around and realised he had fallen down a step. He said he was lying on the ground in the area above the second step. He confirmed he did not see the steps before he fell: T51.38.

35. The plaintiff said in relation to the lighting on the pathway, that it was in shadow but he could not recall whether the first step was in shade at the time when he looked back as he was in too much pain: T51.48; T53.13.

36. The plaintiff said that he could not get up and a man came out of the toilet and he called out to him and asked for help. Shortly after, the man's wife came out and she called the surveyors to assist. The plaintiff said that he called his employer to arrange for the disabled client to be picked up and someone called an ambulance and he was taken to hospital. The plaintiff later gave evidence that he was not admitted but was taken to the hospital fracture clinic: T55.39.

37. The plaintiff gave evidence that he attended the Park precisely two years after the accident on 17 May 2018 and took a number of photographs. He said the weather on that day was also fine and sunny. He noted on the later visit that the trees had been trimmed (T53.50) and the pergola had been removed (T54.4). He said there were no changes to the path steps at that time: T54.9. The plaintiff took a photograph at that time which became Exhibit D. This was a photograph taken whilst the plaintiff was positioned on the asphalt looking towards the pathway which he walked down and fell from at the time of the accident.

38. The plaintiff said that he felt pain in his left arm up to the shoulder and hand following the accident and to his left elbow: T55.25-.33. The plaintiff said that he was diagnosed with a fracture of the head of the radius in his left elbow. He gave evidence that a procedure was performed on him by Dr Kadir, Orthopaedic Surgeon. He said his general practitioner also referred him to a physiotherapist, Ms Ekman, who gave him hand physiotherapy. He said he obtained hand physiotherapy from Ms Ekman from June 2016 to June 2019 when he formed the view that the exercises he was being given could be done by him at home to assist with his finger strength and fine motor skills: T56.16. He said he found the physiotherapy of assistance but he had not completely regained his fine motor skills. He said his grip strength was particularly affected in his left hand and he had problems with gripping including using a knife and fork. The plaintiff said that he dropped plates and glasses on occasion when washing up.

39. The plaintiff gave evidence of his various operation procedures and that he sometimes took medication to assist with pain relief: T57.10. On a scale of one to ten, the plaintiff said that at first he felt the pain was between nine and ten and now it was at a level of three constantly but was of a seven severity if he bumped his wrist: T57.13. The plaintiff gave evidence that he could only lift his left arm to about head height whereas he could lift his right arm above his head. The plaintiff said that he had good movement in his left elbow but with slight pain on occasions.

40. The plaintiff gave evidence that he could not recall having any pain or medical treatment in or to his left wrist, elbow or shoulder prior to the May 2016 accident: T58.22-.32.

41. The plaintiff gave evidence as to his five procedures and also as to steroid injections to his wrist after the second operation which he said only assisted for a week or two. After the third operation in April 2017, the plaintiff said he had constant pain and saw Dr Tawfik who recommended a fusion of his left wrist which was performed in June 2017. After that, he had one more procedure to remove the hardware in his forearm and near the wrist.

42. The plaintiff stated that after the accident he received workers compensation benefits and was given certificates that he was incapacitated for work. He said he received rehabilitation from an exercise physiologist.

43. The plaintiff gave evidence that he went back to work for two half days and went out with another worker with two clients on a lunch and did some minor administrative duties. The plaintiff said he believed that this work was unnecessary, did not assist the organisation and was of no benefit to his clients or his employer. Later, he said he regarded his presence as being unnecessary. The plaintiff said that he had never gone back to work to fulfil his previous duties and believed he did not have the ability to do so because they involved a lot of lifting and pulling and using his left arm which he could no longer do. This included, for example, pushing a wheelchair. He said he resigned from the House With No Steps in December 2016 but would have been willing to work fulltime doing light duties if they were offered. After leaving the House With No Steps, the plaintiff stated that he applied for numerous other jobs without success. He later gave evidence that it appeared that once potential employers realised that he was on workers compensation benefits, they did not appear to be interested in him despite his experience: T60.21-T62.10.

44. The plaintiff said that his workers compensation benefits finished in January 2019 (T62.16) and that he then went on a New Start Allowance before proceeding to an aged pension in March 2020 (T63.26). The plaintiff gave evidence that he felt depressed as he regarded himself as “a failure” as he could not work and provide an income. The plaintiff said that now he felt constantly down and that he could not get back to work. He gave evidence that he took Zoloft for depression but had taken it prior to the accident although his dosage had doubled: T63.4-.20. Later he gave evidence that while this was the case, his dosage had returned to his pre-accident dose at some stage.

45. The plaintiff gave evidence that after his five operations, his wife had assisted him with personal care including showering, drying him, assisting him with dressing and placing on shoes and socks and cutting up the food in his meals. He said this assistance was for about three months after each procedure and then lesser assistance was needed until the next operation. However, his wife continued to assist him with many personal care tasks during these periods even though he could shower himself. Assistance was given by his wife every day: T63.35-T65.29.

46. The plaintiff gave evidence that prior to the accident in May 2016 that he had undertaken the mowing of the lawns at his residence and the whipper snipping of the edges when he was not working. He said it took between one and a half and two hours to undertake these tasks. The tasks were undertaken weekly in summer and about every three weeks in winter. He said if he was working, his wife did the mowing. He said after the accident his son-in-law did the mowing and whipper snipping for about the same period of time. The plaintiff stated that if he could afford it he would take the burden off his son-in-law as he was a very busy man who worked fulltime and did the lawns for other people: T65.31-T66.29.

47. The plaintiff gave evidence that he and his wife had a traditional allocation of roles. He did many of the tasks outside the house and his wife did the tasks inside the house. The plaintiff said that his wife regarded the house as her domain and the garden as her garden with him being limited to the lawns and the whipper snipping: T66.33-.38.

48. The plaintiff gave evidence that his wife was away for periods up to six weeks visiting family (the plaintiff’s son lived in Dubbo and was divorced with four children). He said assistance was given in the house by his daughter at these times. He said that if his wife was not there then he would need assistance with vacuuming, mopping, washing, hanging the washing out and taking it in, ironing and with some meals. The plaintiff said generally he would need assistance with the cleaning of the house although he was able to prepare some simple meals: T66.4. He later said he could do some work in the house such as wiping the benches and doing the washing up.

49. The plaintiff said that he would pay someone to assist him with these tasks if he could afford it rather than his daughter who works fulltime and has two children: T67.19.

50. The plaintiff gave evidence that his wife had a number of medical problems and was diagnosed with breast cancer in 2015 and was under medical supervision for that condition. In addition, his wife had torticollis which involves spasms in the muscles in her neck. She received regular treatment in Sydney for that. Despite this, the plaintiff said that his wife struggled with the household tasks. He observed that with her condition these was sometimes difficult and caused her pain close to when she needed her usual injections: T67.31-T68.21.

51. The plaintiff confirmed that in the last 12 months he had not had any hand physiotherapy as he could do the exercises at home: T68.27. The plaintiff said that he saw his general practitioner in the last 12 months for his depression to obtain scripts for Zoloft but he had also attended his general practitioner for these scripts prior to the accident: T68.48. He said he had last seen his orthopaedic surgeon about six weeks after the last operation and he said that no further action was available: T69.8.

52. The plaintiff, who is a large man, said that his weight had increased substantially since the accident although he had reduced it to some degree. He said it was difficult to reduce his weight as he had no motivation to get out. He said his continuing injuries meant he was not able to participate in activities with his grandchildren and his irritability had affected his relationship with his wife: T69.45.

53. The plaintiff wore, whilst giving evidence, what appeared to be a glove with the ends of the fingers cut out which he said was a Thermogard cover made out of material similar to a wetsuit. He said that his left hand swelled up and changed colour sometimes and the glove reduced the swelling. He said it was given to him by his physiotherapist Ms Ekman to wear, particularly outside, and when the hand was cold and/or swollen. He gave evidence that his hand regularly felt cold and became swollen two to three times per week.

54. The plaintiff clarified that at the time of the accident when he stepped onto the path he did not see any steps as he proceeded towards the disabled toilet. He stated that on the day of the accident he recalled shadowing along the pathway and towards the path and at the beginning of the path: T70.47-T71.17.

55. The plaintiff said that when he walked down he did not see the step and thought it was just a pathway: T71.47.

56. In cross-examination, the plaintiff was asked a number of questions about the various paths that he and his disabled client took shortly before the accident. The plaintiff confirmed that he spoke to the client to redirect him from going towards the female toilet to the disabled toilet. He denied that he chased the client but said he proceeded towards the amenities block area at a reasonably fast walk. While the plaintiff agreed that he did not want the client to go into the ladies toilet by accident, he denied that he was concentrating on the client at the time of the accident. He said he spoke to him and the client came back away from the ladies toilet and was walking towards the disabled toilet: T76.7-.24. Accordingly, the plaintiff denied that he was paying attention to the client but said that he was walking down towards the disabled toilet and was not distracted by the client: T76.38. The plaintiff gave evidence that the client was halfway between the ladies toilet and the disabled toilet when he commenced walking down the pathway: T76.49.

57. The plaintiff was asked whether he saw the pattern on the bricks as he was walking towards the pathway. The plaintiff said that he saw there were paved bricks but did not see any pattern on them: T79.40. He said he did not recall looking at the pattern on the bricks when he was on the asphalt. The plaintiff said that he thought it was a path and he was walking towards the path. He said he was not worrying about any steps as in his 23 years as a disability worker he had never encountered any steps down to a disabled toilet: T81.4. In particular, the plaintiff said that he did not look down at the paved bricks but was looking ahead as he was walking down the path: T81.26. He denied that he was monitoring the movements of his client as he was walking down the path or talking to him but said he was looking towards the disabled toilet. The plaintiff later gave evidence that he could see the disabled sign on the toilet as he was walking down the path: T82.25; T82.47. His aim was to meet with the client at the toilet but would stay outside while the client went to the toilet: T83.39.

58. The plaintiff was cross-examined about previous visits to the Park but said that he did not take clients to the Park whilst working at Greenacres: T91.42.

59. The plaintiff was asked questions about his visit to the Park on 17 May 2018 and his visit in 2019 when he went with Mr Adams, the plaintiff's liability expert. The plaintiff said he attended the Park on 17 May 2018 at about 12:15pm but did not recall the time he attended when he went with Mr Adams.

60. The plaintiff was cross-examined in relation to a photograph of the path and accepted that he could clearly see the different configuration of the pavers up to the first step where he fell. He agreed that there was a different pattern on the next step. He agreed that although the pavers were shaded at the time he attended on 17 May 2018, he could still see the pavers and the different pattern on them. However, the plaintiff said that by the time of the visit with Mr Adams, the top of the steps had been painted and his vision of them had changed. The plaintiff said that he only saw the pattern on the pavers when he was on the ground after his fall: T93.14-T95.46.

61. It was put to the plaintiff that if at the time of the accident he had looked at the pathway in front of him he would have seen the different patterns. The plaintiff denied this and said he was walking down the pathway and it was shaded and in his 23 years of experience in the disabled sector had never seen stairs leading down to a disabled toilet. He accepted that he knew that the toilets were on a different level and believed that the pathway was a sloping pathway going down an incline to the amenities block: T96.2-T96.19. He denied that the edges of the steps would have been visible to him at the time of the accident if he had looked ahead. He also denied that he was anxious to prevent the client going into the ladies toilet and was focusing on his movements as he said he had already directed the client and the client was walking back towards the disabled toilet. He said he was not watching the client the whole time. He denied the reference in Mr Adams’ report that he was still monitoring and instructing the client when he fell. He repeated that the client had left the area of the female toilet and was walking towards the disabled toilet at the time of the fall. The plaintiff said that to him it just seemed like a pathway, not a set of steps: T98.17. He repeated that he was looking towards the disabled toilet.

34. Mr Williams was cross-examined in relation to the time of his fall. His evidence in chief was that he arrived at the Park with his client between 11:30am and 11:40am and that the accident happened at about 12:15pm. It was put to him that the accident occurred before 11:15am and he denied it: T99.46. Upon seeing the ambulance records from the New South Wales Ambulance Service which showed that the first call in relation to Mr Williams’ accident was at 11:17am, it was put to Mr Williams that the accident must have occurred prior to that. Mr Williams stated that his recollection was that the accident occurred after 12noon. Having been provided with the records for his review he accepted that those records were accurate: see Exhibit G; T100.30; T101.17. Mr Williams appeared to be honest and forthright in relation to this matter. He said he did not see who called the ambulance to attend at the Park. He said his recollection was that he attended with the client at the Park for the purposes of having the view from the lookout and having lunch. He did not recall whether he had lunch with the client earlier than 11:15am: T101.33.

35. There was then considerable cross-examination in relation to Mr Williams’ medical history prior to the accident. The plaintiff accepted that he had a history of depression since 2008 for which he had been prescribed Zoloft with a dose of 50mg daily. He also accepted that he had suffered from weight problems prior to the accident and his weight had fluctuated. The plaintiff agreed that in March 2016, a few months before the accident, he had x-rays on his left knee complaining of pain and tenderness and a doctor had diagnosed osteoarthritis in the left knee. He was referred to a specialist in relation to a meniscal tear in the left knee but the consultation did not occur because of the accident. Whilst the plaintiff accepted that his left knee was a problem at times he said it did not create problems at work, although he noticed the knee clicked a bit: T101.40-T103.8; T103.49.

36. The plaintiff also accepted that he had sleep apnoea problems which affected his sleep prior to the accident: T103.29. He stated that he did a lot of stay overs as part of respite care which took him away from his home for periods.

37. He said he was able to persevere with his work through his knee problems. The plaintiff said that he had some pain with his knee getting in and out of cars if he drove for a fair distance: T104.8; T104.31.

38. The plaintiff accepted that in July 2016 after the accident he had bursitis in his right elbow which was investigated. He said this problem has resolved and he was advised that it was due to him using his right arm a lot in compensation for the injury to his left arm. He said he suffered an accident to his right arm many years ago and believed there was a piece of floating cartilage or bone in his right elbow: T106.9-.40.

39. The plaintiff agreed that he told his general practitioner Dr Hannousblunt in October 2016 that his wife was not well. He also accepted that his son had legal issues with a custody battle in relation to his children. The plaintiff said his wife had been diagnosed with ovarian cancer markers prior to the accident. It was put to the plaintiff that it suited him to retire about the time of the accident and thereafter because of his personal and health problems. The plaintiff rejected this and said he did not want to retire but wished to continue to work: T107.40.

40. In relation to the two half days at the House With No Steps after the accident, the plaintiff agreed that he did not find the work meaningful and merely accompanying another disability worker with two clients was not part of his job and his presence was unnecessary. He accepted that at his exit interview he complained about issues relating to management, his family and his injury and it was suggested that the other-issues led to his decision to resign not merely his injury. The plaintiff rejected this: T108.41; T109.12; T109.23; T110.19. While accepting that he was concerned about a lot of things he said the major reason for leaving his job was his injury. He said he wanted to work, the work offered to him was menial and “embarrassing” and he was looking for work after he left. The plaintiff was convincing in cross-examination in his rejection of the proposition that he was happy to remain unemployed after his resignation from the House With No Steps: T109.23. He said he was a worker, he always wanted to work and had applied for numerous jobs after leaving the House With No Steps. He said he had a few replies but nothing else: T109.29.

41. In relation to his depression and his taking of Zoloft, the plaintiff accepted that his dosage had been increased from 50mg to 100mg daily by his general practitioner in April 2017 but was reduced later to his pre-accident level: T110.39.

42. In further cross-examination, suggesting that he was not suitable for some jobs after the accident due to his knee problems, the plaintiff rejected this and said that he had no time off work at any stage due to his knee problems: T111.21; T111.34. He said he had a rehabilitation counsellor to assist him in finding a job and helping him to apply but no positions were available to him or were offered to him. He accepted that his skills and experience made him a potential employee to various disability providers but he received no positive replies, he believed because he was on workers compensation: T112.9; T112.44.

43. The plaintiff accepted that after operation number five he was able to use his left hand including for shopping but he said he had a limited ability to lift up to 5kg with his left arm: T113.7. When it was put to him that he could use his left hand now for cleaning, he said his wife did the cleaning within the house. He accepted, however, that he could do some things with his left hand around the house although writing and computer usage with his left hand was a problem because of the repetitive motions. Upon questioning from the court, the plaintiff accepted that if his wife was away he could undertake simple household tasks such as wiping the bench and undertaking some washing up, but said he could not undertake vacuuming or making the bed: T114.15. He agreed that he could take the rubbish bin out: T114.40. The plaintiff accepted that he could undertake driving. When it was suggested to him that he could be an Uber driver, he said he did not have a good car to do that: T115.29. When it was put to him that he had withdrawn $50,000 in superannuation and had that available, the plaintiff said that the sum was used in paying bills and helping his children: T115.44.

44. The plaintiff denied that he was able to mow the lawns due to the need for pushing and pulling and the vibration. He also said he could not start the lawnmower: T116.26.

45. It was put to the plaintiff that he had an ultrasound of the right shoulder in March 2019 which diagnosed a partial tear to his supraspinatus tendon. The plaintiff agreed that he had a reduced range of movement with problems and some pain. However, the plaintiff rejected that his various health problems would have led him to retire and he said he could not afford to retire and needed to access his superannuation to pay bills. He said if there had been no accident he would have continued working as his other problems and injuries were not that severe: T117.11; T117.34; T117.47.

46. In re-examination, he said he had never taken a day off work while working at the House With No Steps due to his other medical problems: T124.43.

47. The plaintiff was cross-examined about his work at home externally to his house. He said his son-in-law did not do the mowing prior to the accident. He said he did it when he was available including the use of the whipper snipper but when he was not available his wife did it. He accepted that his son-in-law may have helped on occasions but he said he was not away for extended periods as part of his work. He also agreed that his daughter provided domestic help for about 30 minutes a week in the house otherwise his wife did the cleaning. He accepted that his wife still did the house work in the house despite her medical conditions. Despite his wife’s conditions and the plaintiff’s medical problems he said that he and his wife were coping and his wife always kept the house spotless as it had been prior to the accident: : T120.5.

48. In general terms, this evidence was consistent with that set out in Ms Zeman’s report (the occupational therapist briefed to provide a report by the defendant). The plaintiff rejected the proposition that after his five procedures he received substantial personal assistance for no more than five and a half weeks for about seven to eight hours and then the assistance dropped off. He said it continued for two to three months: T122.4.

49. In re-examination, the plaintiff said that at the time of the accident he saw the disabled sign on the door of the disabled toilet: T123.21. He also agreed that on the day of the accident the pergola was as indicated in the photograph in Mr Adams’ report in Exhibit B at page B224.

50. The plaintiff confirmed that he drove to Dubbo sometimes to assist his son but the majority of the time now he went by train which he regarded as easier as his left arm/hand/wrist “played up” if he drove a lot: T124.14.

51. The plaintiff confirmed that his right elbow was injured when he was aged 18 or so but it did not affect him prior to the accident. The plaintiff also said in re-examination that prior to the accident if he had seen tactile buttons on the ground in front of steps he would look ahead to see what there was as it normally would indicate a handrail with steps: T126.27.

52. Mr Williams was clearly in error in his evidence in chief as to the time of the accident and when he arrived at the Park: see Exhibit G. It may well be that his recollection is incorrect that he arrived at the Park with his client to have lunch and to look from the lookout as opposed to having morning tea.

53. Otherwise, the court was impressed with Mr Williams’ evidence and found him to be a forthright, direct and honest witness. He made concessions where appropriate and particularly was forthright in relation to his prior medical history and his post-accident medical problems which were unconnected with his left arm and wrist. He readily conceded in cross-examination the limited role which he had in undertaking domestic duties within the house prior to the accident and his varied role outside the house which was limited to lawn mowing and whipper snipping when he was available. Overall, the court accepts Mr Williams as a witness of truth and would only not accept his evidence on a matter where it is shown to be wrong by clear contemporaneous evidence such as the ambulance records relating to the time the ambulance was first called.

Oral evidence of Mrs Colleen Williams

82. Oral evidence was given in the proceedings by Mrs Colleen Williams, the wife of the plaintiff. Mrs Williams gave evidence that she was born in November 1949 and was thus 70 years of age at the date of the final hearing.

83. Mrs Williams gave evidence that she had been married to the plaintiff for 41 years and had two children and six grandchildren.

84. Mrs Williams stated that she had not worked since 2015 and had previously been a cleaner. She gave evidence that she had ceased her employment in 2015.

85. Mrs Williams gave evidence that the cleaning duties at her house were not shared with the plaintiff. She said she did the household domestic activities. She stated that the plaintiff prior to the accident assisted with lawns and the whipper snipping of edges when he was not working and was at home. She said her husband did not assist with these duties after the accident but they were completed by their son-in-law. Mrs Williams gave evidence that after the accident she left her home on occasions for visits to her son and elderly mother who lived in Dubbo. The longest period when she was not at home where the plaintiff was looking after himself was in 2020 when she was away for seven weeks. During this time, her daughter assisted the plaintiff with household activities by coming to “freshen up the house”. Mrs Williams stated that her husband made attempts to help with household activities such as washing up and making the bed but she has to redo the latter activity and she is concerned that the hot water may affect the plaintiff's hand. She confirmed that she had not seen the plaintiff undertake sweeping or mopping.

86. Mrs Williams gave evidence that in the period after the accident and after the plaintiff’s operations, she provided her husband with additional care including personal care involving assistance with covering his arm, with showering, wiping the plaintiff and dressing him. In relation to meals, depending on the meal, Mrs Williams assisted the plaintiff by cutting up his food where utensils were needed. She said she did not assist with other personal tasks: T143.36. These tasks would continue from one operation to the next. The personal care by Mrs Williams for the plaintiff was undertaken every day: T144.13.

87. In addition, Mrs Williams gave evidence that she drove the plaintiff to the hospital, picked him up from the hospital after his operations, and took him to doctors’ appointments by driving him.

88. Mrs Williams was asked questions about her own medical issues in the last five years. She gave evidence that she was diagnosed with breast cancer in 2015 and had radiation treatment. Her treatment involved follow-up consultations with medical specialists including her surgeon and her radiation oncologist. These consultations are ongoing. Mrs Williams gave evidence that 10 years ago she noticed jerking motions of her head due to her neck. These motions were apparent whilst Mrs Williams was giving her oral evidence. Mrs Williams stated that she was diagnosed with torticollis which included spasms involving uncontrolled movements of the neck and head. She said she attended St Vincent's Hospital in Sydney every three months for Botox injections to her neck to assist this. This condition involved discomfort in the neck from time to time and she was under the continued treatment of a specialist.

89. Mrs Williams was asked whether the plaintiff's personality had changed since the accident and she gave evidence that he had become cranky and short with her. She said this meant that they were less tolerant of each other and their relationship was not the same.

90. Mrs Williams gave evidence that her daughter attended their house daily and the grandchildren attended frequently. She stated that the plaintiff was less patient since the accident with his grandchildren.

91. In cross-examination, Mrs Williams confirmed that her daughter visited every day in the morning and afternoon as the plaintiff dropped her off at work and sometimes picked her up (or Mrs Williams would pick her up from work).

92. Mrs Williams confirmed in cross-examination that the help which she gave to the plaintiff in personal care matters reduced between operations: T148.41.

93. Mrs Williams gave evidence that when she was away from Wollongong her daughter attended the house for 30 minutes weekly to assist the plaintiff. Otherwise, when she was home she was in charge of cleaning within the house, as she did not like her husband to interfere with it. She also confirmed that she undertook weeding in the garden when she had time.

94. Mrs Williams was cross-examined in relation to the duties of her son-in-law as to lawns and edges at her house before and after the accident. Mrs Williams said that prior to the accident when her husband was away on respite stays, her son-in-law did do some of the mowing and whipper snipping instead of her husband. She also said that she did some of the mowing of the lawns herself. Her son-in-law now assists with the lawns. Mrs Williams said that the garden of the house was maintained properly at present, as was the house itself.

95. Mrs Williams confirmed that she had noticed her husband having knee pain for the last two years and he appeared a bit lopsided. In relation to whether she noticed the plaintiff having problems with his right shoulder and doing work around the house, she stated that the plaintiff did not do much work around the house. However, she confirmed that the plaintiff had attended the doctor in relation to his right shoulder.

96. In re-examination Mrs Williams stated that the lawns were mowed and edged by her son-in-law once a week in the warmer weather. She stated that she did not any longer mow the lawns due to her health issues with breast cancer and torticollis: T153.

97. Mrs Williams impressed the court as a completely honest and straightforward witness who made concessions where appropriate. The court accepts her as a witness of truth.

Oral evidence of Mrs Tahnee Iera

98. Evidence was given to the court by Mrs Tahnee Iera who is the daughter of the plaintiff and his wife. She was born in June 1981 which made her 39 at the time of the final hearing. Mrs Iera gave evidence that she lived near to the plaintiff and was married with two young children. Mrs Iera also gave evidence that she was employed.

99. Mrs Iera gave evidence that she had noticed changes in her father's personality since the accident. She said that there was “no life” in him, he was withdrawn, his depression had become worse and he lacked patience.

100. Mrs Iera gave evidence that she provided cleaning assistance to the plaintiff. She said prior to the accident this was not required. However, after the accident cleaning assistance was given when her mother left Wollongong to visit relatives. This assistance included dusting, vacuuming, cleaning the kitchen and bathroom, mopping and washing. She also gave evidence that her husband, the plaintiff’s son-in-law, provided assistance with lawns and gardening.

101. Before the accident, Mrs Iera gave evidence that her parents and her family had gone on holidays together to the Gold Coast and Batemans Bay but that since the accident the plaintiff had not gone on any holidays. Mrs Iera gave evidence that she led a busy life and she would not continue to provide the domestic assistance for her father if he could afford to pay someone to do it.

102. In cross-examination, Mrs Iera said she could not remember helping clean her parents’ house before the accident but it was possible that she did so, for example if her mother was unwell. Mrs Iera said that her husband did not assist the plaintiff with lawns and gardening before the accident only after the accident. She gave evidence that if the plaintiff was available he would do the lawns. If he was not available, then her mother did the lawns especially before she became unwell: T157.14.

103. Mrs Iera was not aware of her father having problems with his knees or right shoulder recently.

104. Mrs Iera impressed as an honest and straightforward witness who made concessions where appropriate. The court accepts her as a witness of truth.

Treating medical evidence

105. In the course of his fall, the plaintiff fell on his left hand side taking the force of the fall with his left hand and forearm on the brick landing after the first step of the stepped pathway. The plaintiff contacted his employer who arranged for the disabled adult client under the plaintiff’s care to be collected. The plaintiff was transferred by ambulance from the Park to Wollongong Hospital. It is not in dispute that the plaintiff was referred to a specialist and came under the care of Dr A Kadir, orthopaedic surgeon, who performed a number of medical procedures on the plaintiff. Dr Kadir at one stage sought a second opinion from Dr J Tawfik in relation to pain in the plaintiff's wrist.

106. Following the plaintiff's injuries to his left wrist and elbow in his dominant left upper limb, the following surgical procedures occurred:

1. On 31 May 2016, there was an open reduction and internal fixation of the left radial head fracture and bone grafting performed by Dr Kadir;

1. On 29 September 2016, there was a left wrist arthroscopy and TFCC debridement (triangular fibrocartilage complex) and an ulnar shortening osteotomy performed by Dr Kadir;

2. On 27 April 2017, there was a left wrist arthroscopy and debridement performed by Dr Kadir;

3. On 8 June 2017, there was a left total wrist fusion performed by Dr Kadir;

4. On 18 February 2018, there was a procedure for the removal of the plate and screws from the left wrist joint and from the left ulnar performed by Dr Kadir following irritation caused by the medical hardware components.

107. There is a variation in the medical evidence as to whether as well as the fracture of the left radial head, the plaintiff also had a (left triquetral dorsal capsular avulsion) fracture in the wrist. This is later considered in the medicolegal evidence. Whether there was a fracture or not, it is clear that the plaintiff suffered considerable soft tissue injury to his left wrist in the accident.

108. In evidence are numerous reports from Dr Kadir to the plaintiff's general practitioner, Dr Henneuseblunt.

109. In his letter dated 26 May 2016, Dr Kadir states:

“He sustained a left intra-articular fracture of the head of the radius. This fracture is displaced and it caused a block in forearm supination. Bernard also sustained an injury to the left wrist. The x-ray and CT scans show a fracture through the dorsal rim of the triquetrum. He also had an MRI that confirms an injury to the dorsal capsular ligament complex of the left wrist. … Bernard requires an open reduction and internal fixation of the left intra-articular radial head fracture … The left wrist can be managed non-operatively with a splint.”

110. In a letter dated 14 June 2016 following the first operation, Dr Kadir expressed the opinion that the plaintiff was making good progress and had started physiotherapy. The plaintiff’s left wrist was described as still tender and swollen. In a letter dated 12 July 2016, Dr Kadir stated that the x-rays of the plaintiff’s left wrist suggested that the wrist fracture was healing and that the x‑ray of the left elbow showed the radial head fracture had united. An MRI of the left wrist was requested. Very limited light duties were also suggested.

111. In a letter dated 2 August 2016, Dr Kadir noted that the plaintiff had a good result with the left elbow but the left wrist continued to be a problem. He noted that the repeat MRI showed a full thickness tear of the peripheral attachment of the TFCC ligament.

112. Continued problems with the plaintiff’s left wrist were noted in a letter dated 14 September 2016 and a left wrist arthroscopy and triangular fibrocartilage repair plus an ulnar shortening osteotomy were recommended. It appears that the plaintiff naturally had a slightly longer than normal ulnar.

113. Various later letters from Dr Kadir noted continuing problems with the plaintiff’s left wrist. Cortisone injections failed to resolve the wrist problem. In a letter dated 5 April 2017, Dr Kadir stated in relation to the plaintiff’s work capacity that he was unsure if the plaintiff would be able to have a pain-free wrist although the surgery completed had improved his symptoms.

114. Following the plaintiff’s continued problems with his left wrist, Dr Kadir sought, as indicated above, a second opinion from Dr Tawfik. As a result of the plaintiff’s continued wrist pain with a limited range of movement, Dr Tawfik expressed the view that the plaintiff would benefit from a total wrist fusion which would address the pain. In a letter dated 9 May 2017, Dr Kadir said in relation to the plaintiff's left hand work capacity that he should use a splint for pain and he would need lifting restrictions. In the light of Dr Tawfik’s opinion, Dr Kadir, in a letter dated 24 May 2017, offered the plaintiff a total wrist fusion of the left wrist which the plaintiff agreed to. In a post-operative letter dated 21 June 2017, the plaintiff was noted as having physiotherapy and his wrist and fingers were still swollen. Later letters indicated that the wrist fusion was doing well but the swelling and discomfort meant the plaintiff was not ready to return to work. In a letter dated 31 August 2017, Dr Kadir expressed the opinion that the plaintiff would not be able to return to his previous to injury work, and there was a reduced grip strength. Later letters indicate continued pain in the plaintiff’s left wrist. Dr Kadir in a letter dated 26 October 2017 stated that the plaintiff would have a permanent limitation to his left hand function. The plaintiff was on pain medication for his wrist and Dr Kadir recommended continued hand therapy.

115. By 28 February 2018, the plaintiff was noted as being unable to form a complete left fist and more physiotherapy was recommended. In a letter dated 2 May 2018, Dr Kadir noted that the plaintiff had improvements with him not complaining of any pain in the left hand, but the grip was weak. Dr Kadir noted that the plaintiff was looking for a new job.

116. As noted above, the plaintiff was having hand therapy to his left wrist with a physiotherapist. In evidence was a report from Ms N Ekman, physiotherapist, dated 6 June 2019. Ms Ekman recorded that the plaintiff had been attending hand therapy for his injured left wrist with her since 3 June 2016. The plaintiff attended fortnightly until the end of February 2019 and then once per month since that time. While the plaintiff had been undertaking all the relevant exercises, he still complained of pain in the left arm, wrist and hand. Reduced grip strength in the left hand was noted. The plaintiff was advised to continue with his home exercise regime as he was able and to attend fortnightly for hand therapy treatment.

117. In evidence was a report from the plaintiff's general practitioner Dr Henneuseblunt dated 12 May 2017. This recorded that the plaintiff was getting low in mood due to the surgeries performed on him and it was recommended that he attend a pain management psychologist. The general practitioner noted: “Has been approved for light duties today, but practically he is no longer with previous employer and injury co-ordinator will be doing a return to work plan etc”.

Evidence for the defendant

118. The defendant relied on photographic, documentary and oral evidence.

Oral evidence of Mr G Cook

119. Oral evidence was given in the proceedings by Mr Grahame Cook. Mr Cook stated that he was employed by the defendant Council as the Horticultural Supervisor in the Botanical Gardens Department. He had been employed in that position for a lengthy period.

120. Mr Cook gave evidence that in 2009 a need arose for maintenance at the Mount Keira Summit Park. A maintenance team was assembled and undertook maintenance activities at the Park under his direction. These activities included toilet cleaning, litter removal, clearing of paths, making sure fences were secure, tree work, the cleaning of the barbecue facilities and minor landscaping work. Some landscaping work at the Park had also been completed by Mr Cook prior to 2009.

121. Mr Cook gave evidence that the Park was run by a Curator and he was the next step beneath the Curator in charge of operations at the Park. Mr Cook stated that he had attended the Park once or twice a week since 2009: T158.22. He said there was a storeroom in the toilet block at the Park which was used by the maintenance crew to store tools and supplies: T158.30. Mr Cook stated that the storeroom could be accessed by using either the stepped pathway in question in the present proceedings or the ramp. Mr Cook stated that he used the steps down to the amenities block quite often and preferred to use them as they were the quickest way to access the amenities block from where he parked his vehicle: T158.50.

122. Mr Cook was taken to photograph seven in Mr Adams’ report at Exhibit B page B222. He confirmed that this showed the top of the stairs to the amenities “walk” in the late afternoon. He stated that he parked his car usually where the vehicle to the left is shown in photograph seven and then got out of the car and walked towards the steps to access the amenities block as it was the shortest point to the storeroom: T160.39. He confirmed that he had used the steps in question once or twice per week in his activities and the last task was generally to lock the storeroom and walk up the steps to his vehicle. Mr Cook said that he had used the steps in question at different times of the day, including at pre-dawn, after dusk and at other times during the day. He said he had never had any problems seeing the steps or seeing the pavers of the landings: T161. He said he had seen other people using the steps to walk down to the amenities block. He said he had not seen anyone have an accident whilst using the steps since 2009 nor had he heard of any accidents in that period: T161.41-T162.2. On occasions there had been reports of loose pavers on the steps and these were made safe as soon as possible.

123. Mr Cook gave evidence that he painted the nosings on the steps with paint but did not know why this was done. He said he was given a direction to highlight the nosings on the steps: T162.23.

124. In cross-examination Mr Cook confirmed that he had no idea why he was directed to paint the nosings of the steps. He agreed that the paint applied to the nosings of the steps was bright yellow and made the appearance of the steps more obvious: T163.22.

125. Mr Cook was asked whether the steps were the shortest way to the disabled toilet facilities and he answered “potentially yes”: T163.33. A similar answer was given to the proposition that the first thing that is seen is the door to the disabled toilet from the top of the steps. He confirmed that MFI 1 which became Exhibit N showed the disabled toilet with the door opened. He also agreed that the stepped walkway led directly to the disabled toilet: T163.50. It was put to Mr Cook that the painting of the steps fundamentally changed their appearance. Mr Cook agreed. He said that you could see them much better with the paint applied although you could also see them before: T164.15. He agreed that he had been familiar with the steps for 11 years and had used them many times in that period. He said he had no memory of the first time he walked down the steps.

126. Mr Cook was asked about the photograph which became Exhibit K in the proceedings taken on 17 May 2016. He confirmed that it was a photograph of the steps but was not aware who took the photograph and said that he had received no notification of the plaintiff’s accident. He accepted that the photograph which is Exhibit K showed shadowing on the steps. He also accepted that there may have been other accidents apart from the plaintiff’s that he was not aware of: T165.10. Mr Cook appeared to think that the shadowing shown in Exhibit K related not to the pergola which was present at the time of the accident but from the roof of the amenities block.

127. Mr Cook confirmed that part of the shadow shown in Exhibit K was the shadow from a tree and was of the view that it showed the shadow of a Banksia tree which was present. It was put to Mr Cook that council workers had removed branches to reduce shadowing but Mr Cook said that whilst pruning occurred he was not sure whether it was to reduce shadowing. In due course, he said that trees were not removed as far as he was aware because of shadowing: T166.29.

128. Mr Cook accepted that the pergola had been removed in the period between 2015 and 2017 and said the reason for the removal was because it was redundant as it had been made to house a map and the map was never installed.

129. Mr Cook confirmed in his cross-examination that the amenities block included a storeroom but stated that it did not include a lunch room: T166.42.

130. Mr Cook was shown Exhibit C and accepted that there were tactile indicators on the edge of the steps shown in the photograph. He denied that tactile indicators were placed in front of steps at all other places in the Park: T168.26.

131. Mr Cook was not aware of the Vero 2007 risk assessment in relation to the Park and was also not aware of other risk assessments which had been undertaken since 2009 for the defendant. He was of the view that the current Curator would be involved with any risk assessments at the Park. He was not aware of any occupational health and safety inspectors employed by the Council coming to the Park. He confirmed that he had not been provided with any incident report in relation to Mr Williams’ accident: T170.15.

132. Mr Cook impressed as an honest and straightforward witness. I accept his evidence.

Documents relied on by the defendant

133. In addition to the material in the joint tender bundle which became Exhibit B, the defendant tendered a number of photographs and documents. These photographs included the pathway areas leading from the carpark to the amenities block at the Park (Exhibit 1), stairs in the Park which had a handrail installed next to them (Exhibit 2) as well as a photograph showing an area of the Park which is dirt with bush (Exhibit 3).

134. In addition, the defendant tendered as Exhibit 4 a bundle of medical records relating to the plaintiff to establish medical conditions unrelated to his left arm on which he had been cross-examined, such as his knee problems, sleep apnoea and right shoulder problems.

Liability evidence

Liability reports

135. Both parties relied upon reports from expert witnesses on the issue of liability.

Report of Mr N Adams

136. The plaintiff relied on a report of Mr Neil Adams, an expert in the fields of ergonomics and safety management, dated 16 October 2019. In paragraph 1 of his report, Mr Adams notes that he met with Mr Williams, the plaintiff, and his legal advisor at the Park on 14 May 2019 for the purposes of an inspection of what he describes as “the stepped walkway” down which Mr Williams fell. Mr Adams notes that he took photographs and made measurements at the site. He records that Mr Williams advised him that the situation was unchanged since the day of the accident except for the removal of the pergola which had been standing to the north of the accident site and the trimming of some overhanging tree branches.

137. It is unnecessary for the purposes of these reasons to set out in great detail Mr Adams’ opinions largely because the experts later met in a conclave and prepared a joint report.

138. There are some variances between the assumptions on which Mr Adams’ report is based and the plaintiff’s oral evidence. In paragraph 2.1.3, Mr Adams records the plaintiff’s instructions that he was about 15 metres behind when the client moved from the asphalt roadway onto the paved surfaces whereas Mr Williams’ evidence was that he was between 10 and 15 feet behind: T49.1. In paragraph 2.1.3, it is also noted that when Mr Williams transitioned onto the paved surfaces he “continued calling out to the client and [was] monitoring the client’s movements” whereas Mr Williams stated in his evidence that he called out to the client and was satisfied that he was moving to the disabled toilet when he (Mr Williams) walked down the pathway: T51.1. Photographs three to five in Mr Adams’ report illustrate the different paving patterns of the brown pavers with a line of bricks delineating the division between one part of the paved area and the stepped pathway leading to the first step. There is also a change in pattern on the nosing of each step in the stepped walkway.

139. Paragraph 2.1.4 of the report provides:

“Mr Williams was still monitoring and instructing the client when he (i.e. Mr Williams) quite unwittingly stepped beyond the edge of the uppermost step of what he subsequently learned was a stepped walkway, rather than the sloping path he thought he was following”.

140. Mr Williams in his oral evidence said that this was not correct and that he had ceased instructing the client and looking at him when the accident occurred: T50.47. I prefer Mr Williams’ oral evidence on this issue as being more likely to be correct, having observed him giving his evidence during cross-examination.

141. Photographs four and five in the report also show shadowing on the steps but not the first step where the plaintiff fell.

142. In paragraph 2.2.1 of his report, Mr Adams notes that the stepped walkway is about 4.8m long from the uppermost nosing to the drain that is set into the walkway beyond the lowest step and approximately 1.3m wide with the riser of the relevant step being 0.16m high and with the stepped walkway sloping down towards the toilet block.

143. In paragraph 2.2.2 of his report, Mr Adams refers to the varied pattern in the pavers and notes that the three step nosings along the stepped walkway were the only three locations within the paving where soldier course edging was associated with changes in level.

144. In paragraph 2.2.3, Mr Adams notes the stepped walkway did not have colour contrasting strips painted or mounted on either the outer edge of the upper level or on the nosings of the intermediate steps to render them more visually obvious and expresses the opinion that in the absence of such contrasting nosing strips, each of those edges did not have any characteristics likely to cause them to be sufficiently conspicuous to be visually obvious. He also notes that bright yellow paint has since been applied to the steps which he considered to be both appropriate and necessary.

145. In paragraph 2.2.4, Mr Adams notes that the stepped walkway lacked handrails and there were not tactile ground surface indicators provided at either the top or the bottom of the stepped walkway to alert vision impaired pedestrians to the presence of the potentially hazardous nature of the walkway due to the three steps along the structure.

146. In paragraph 2.2.5, Mr Adams notes that in his view it is pertinent that the toilet block includes facilities that are marked as disability units and signs directing people with disabilities to the toilet block. The fact that the stepped path was substantially or entirely shaded and therefore less visible is referred to in paragraph 2.2.6.

147. In paragraph 2.2.5, Mr Adams suggests that the steps did not comply with AS 1428.1.2001 relating to access and mobility for disabled persons or AS 1657.1992 relating to, among other matters, stairways.

148. In paragraph 2.2.7, Mr Adams refers to the absence of warning signs advising Park users of the presence of the steps in the subject area. In paragraph 2.2.8, he notes it to be of significance that other structural components of the Park were provided with handrails and tactile indicators to provide safety for users. Photograph 11 in his report notes the area leading to and at the lookout in the Park where handrails and tactile indicators are used. In the photographs numbered 12 and 13 in his report, the bright yellow paint which has been placed on the steps since the accident is illustrated.

149. In paragraph 3.1.2 of his report, Mr Adams expresses the view that all steps and stairways are considered potentially hazardous. He notes various factors including that the stepped walkway comprised an available path of travel that could be used by visitors including persons who are caring for others, there were signs directing people generally and people with disabilities in particular to the toilet block, there were no tactile indicators present, the shading and the Australian Standards which have previously been referred to. He also notes the fact that the stepped walkway lacked handrails. In paragraph 3.1.3, he expresses the view that the stepped walkway “would have been more than usually potentially hazardous compared to steps and stairways generally”. He refers to the absence of visual cues to the stepped walkway in paragraph 3.1.4. In paragraph 3.1.11, he expresses the view that the steps that have been constructed along the paved walkway were visually indistinct from the adjacent paved surfaces and had no contrasting nosing strips and no handrails and would in his view have been fully or almost shaded from the sun at the time of the incident. He says this exposed the plaintiff to a significant risk of a misstep. In paragraph 4.1.5, Mr Adams expresses the view that an appropriate hazard identification and risk assessment process would have noted the potentially hazardous nature of the unmarked steps within the paved walkway before the accident.

266. Section 5R of the CLA provides that the principles applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the relevant risk of harm. The standard of care required under the section from the person who suffered harm is that of a reasonable person in the position of that person to be determined on the basis of what that person knew or ought to have known at the time. I accept the evidence of the plaintiff that he did not know that the steps were there and he believed it was a sloped pathway. The plaintiff has given evidence which I accept that he has never seen in his years in disability services any steps leading down to a disabled toilet.

267. I consider the circumstances of the accident by applying s 5B of the CLA:

1. The risk was foreseeable in that it was a risk of which the person knew or ought to have known – the plaintiff was not aware of the risk of the stairs. However, he was aware that there were stairs and steps in other parts of the Park as he had gone to the lookout. The plaintiff ought to have known that stairs could have been used in the Park and that if reasonable care was not taken for his own safety that he might have an accident;

2. It was reasonably to be expected by the plaintiff that there were steps in the Park. I find that there was not a proper basis for concluding that the risk of stairs and falling was insignificant;

3. In the circumstances a reasonable person in the person's position would have taken those precautions - in my view, a reasonable person in the position of the plaintiff would have been careful where there was sun and then a shaded part to take precautions to see whether there were any steps or uneven surfaces in the shaded part. That may require slowing his onward steps to better see his path of travel;

4. The probability that the harm would occur if care were not taken – there is a probability that harm would occur if care were not taken by the plaintiff;

5. The likely seriousness of the harm – serious injury could occur if care were not taken by the plaintiff;

6. The burden of taking precautions to avoid the risk of harm – the burden was minor;

7. The social utility of the activity that creates the risk of harm – the social utility of carers taking disabled persons to a park is significant. However, in my view it does not outweigh the need to exercise reasonable care, particularly when the pathway was higher than the toilet facilities.

269. In my view, the defendant has established contributory negligence on the part of the plaintiff in the present case. The plaintiff was aware that there were steps and other uneven surfaces in the Park. He was aware that the ground was sloping and that the amenities block was on a lower level. He was going from sunlight into shade. Caution needed to be exercised in these circumstances.

270. A relevant factor is that the plaintiff had under his care an adult disabled person. However, the plaintiff's evidence, which I have accepted, is that the disabled client had come past the ladies toilet and was heading towards where Mr Williams had asked him to go. Therefore, the plaintiff was not distracted by the disabled client: T50.45-T51.5. The plaintiff was thus in a position to determine where he was walking without distraction from the adult client.

271. Applying the principles in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494, in all the circumstances of this case, I would reduce any damages awarded by 15 percent to take account of the contributory negligence.

Damages

272. As I have found that there was a breach of duty of care by the defendant, and causation has been established, the issue of damages must be considered. The plaintiff seeks:

1. Non-economic loss;

2. Past out-of-pocket expenses – these were agreed;

3. Future out-of-pocket expenses – these were agreed;

4. Past economic loss including past loss of superannuation;

5. Fox v Wood damages;

6. Past domestic assistance/attendant care services; and

7. Future domestic assistance – attendant care services on a commercial basis.

273. The amounts submitted by each party as the appropriate sums for damages to be awarded under the various heads if liability is established by the plaintiff are as follows:

Head of damages	Plaintiff	Defendant
Non-economic loss	$263,000 (40% of a most extreme case)	$151,500 (30% of a most extreme case)
Past out-of-pocket expenses	Agreed at $126,769.41	Agreed at $126,769.41
Future out-of-pocket expenses	Agreed at $4,979	Agreed at $4,979
Past economic loss	$315,966.23	$47,633.10 reduced by 50%
Past loss of superannuation	$35,230.23	$5,311 reduced by 50%
Fox v Wood	$15,922	Estimate of $2,400 (but reduced)
Past domestic assistance/attendant care	$18,173.60	Nil – does not meet the statutory threshold
Future domestic assistance/attendant care	$81,134.20	$16,660
Equipment	$5,522.18 plus $2,500 for handrail modification	$5,522.18

Non-economic loss

274. Under s 16(1) of the CLA, no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. Under s 16(3) of the CLA, if the severity of the non-economic loss is assessed by the court as being equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the table set out in the section. Under the Civil Liability (Non-Economic Loss) Amendment Order 2019 the maximum amount of damages which may be awarded for non-economic loss under s 16 at the present time is $658,000.

275. It is important to consider the definition of “non-economic loss” in s 3 of the CLA. In the CLA it is defined as meaning pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. In the present case under consideration, there was no evidence or claim of a loss of expectation of life. In relation to disfigurement of the plaintiff, the various medical reports refer to the plaintiff having a number of significant operation scars on his elbow and in the hand/wrist area: for example Exhibit B pages C4 and C17. These must be taken into account.

276. In relation to pain and suffering and loss of amenities of life, these matters have to be considered in the light of my medical findings which have been set out above. There was no medicolegal evidence before the court that the plaintiff suffered a psychiatric injury as a result of the accident. At one stage the plaintiff’s medication which he had been taking for depression prior to the accident was increased but he later accepted that it went back to its original level. Both the plaintiff's wife and his daughter describe a change in mood in the plaintiff which appears largely to be as a result of his injuries and his continued disabilities.

277. The plaintiff had five operations following the accident. Although the second operation was partly to address a pre-existing congenital issue, the evidence establishes that this issue was asymptomatic at the time of the accident. The only relevant conclusion, which was not really disputed on the balance of the evidence, is that the second operation was as a result of the accident. Certainly the evidence establishes that the second operation was recommended by Dr Kadir, the plaintiff's treating orthopaedic surgeon.

278. The medical reports and the plaintiff's evidence (which I accept on this point), establish that the plaintiff suffered considerable pain and restriction as a result of the accident including the need for the five operations and following rehabilitation. In the conclave report, all experts agreed that the plaintiff suffered a fracture of the head of the radius and soft tissue injury of the wrist with a possibility that he may have had a fracture to the capitate in his hand. The experts agreed that the plaintiff has a completely fused wrist with some slight loss of movement in the fingers and left shoulder as a consequence of the accident. The experts also agreed that the plaintiff has a significant impairment although his condition is stable and static and his prognosis is that his condition is unlikely to change in the future. The injuries meant that the plaintiff was unable to return to his previous fulltime employment.

279. As stated, the defendant submits that the plaintiff's claim is 30% of a most extreme case whereas the plaintiff submits that a 40% assessment is appropriate. The defendant refers to other cases in its written submissions. I take into account the age of the plaintiff at the time of the accident and final hearing: Reece v Reece [1994] NSWCA 259. This is relevant in the light of the plaintiff’s pre-accident issues with his knees and depression and his other issue with his right shoulder condition. However, I also take into account the plaintiff's evidence which I accept that he did not take a day off work due to any of his pre-existing complaints prior to the accident. I also take into account that the plaintiff had an active personal life with golf, bowling and fishing which have been affected by his injuries.

280. Having regard to all the matters which I have referred to above, I assess that the appropriate percentage of a most extreme case in the case of the plaintiff is 32% which produces damages for non-economic loss (as a proportion of the maximum amount that may be awarded for non-economic loss of $658,000) of 30% being $197,400 which pursuant to s 16(4) of the CLA is rounded to $197,500.

Past out-of-pocket expenses

281. These have been agreed by the parties at $126,769.41.

Future out-of-pocket expenses

282. These have been agreed by the parties at $4,979.

Past economic loss

283. At the time of his accident, the plaintiff was working fulltime as a disability support mental health worker: T39.23; T39.45. Substantial overtime was involved in the plaintiff’s position: T39.48.

284. It was agreed between the parties that the plaintiff was earning $1,587.77 net per week at the time of the accident. The plaintiff submits that he has been unable to return to work since the date of the accident and claims the sum of $1,587.77 net per week to his retirement age of 66 on 8 March 2020 being 199 weeks and totalling $315,966.23. A claim for past loss of superannuation at 11.15% totalling $35,230.23 is also made. The defendant accepts a loss of net wages as agreed from the date of the accident until his retirement from the employment with House With No Steps on 20 December 2016, being 30 weeks together with appropriate superannuation on this sum.

285. In my view, the figures claimed by the plaintiff with a modest discount should be awarded. First, I accept the plaintiff’s evidence that because of his injuries he did not believe he could have performed his pre-accident duties: T60.37-T61.7. This is established by the medical evidence and his position description. Secondly, the court accepts the joint expert conclave opinions of the medico-legal experts that the plaintiff could not return to his previous fulltime employment but would be fit for lighter work although his prospects of finding this type of work at his age are poor: Exhibit B page D2. This summary is generally consistent with the medico-legal reports in evidence. Dr Bodel stated in his second report dated 24 September 2019 that the plaintiff had no real prospect of returning to work at his age with his levels of pain: Exhibit B page B11. See also the opinions of the medico-legal experts relied on by the defendant at Exhibit B page C7 and C11 (Dr Edwards) and Exhibit B page C23 (Dr Harvey).

286. Thirdly, I accept the evidence of the plaintiff that the limited two half days of work provided to him by his former employer did not in substance benefit him or his employer: T60.22 and T61.17. The House With No Steps did not offer the plaintiff any other type of duties and he resigned in December 2016. I also accept his evidence that if there had been an offer of some form of light duties on a fulltime basis that he would have attempted the work: T61.28-.39. I accept the evidence of the plaintiff that he was offered rehabilitation assistance together with a back to work co-ordinator and that he applied for many different jobs without success: T61.43-T62.10.

287. The cross-examination of the plaintiff at T107-T108 did not alter my view of this evidence. I accept the plaintiff’s evidence that he wanted to continue working for as long as he could because he enjoyed his work, although he was concerned about his wife: T107.40. See also T108.11.

288. The plaintiff was still looking for work at the time of his family problems and wanted to work: T108.49; T109.45.

289. Fourthly, although the plaintiff had a number of other health problems including problems with his knees, sleep apnoea and his right shoulder (T102.14-T104.34), I accept the plaintiff’s evidence that these did not affect the performance of his work: T105.43; T124.22-.43. The plaintiff did not have any time off work from the House With No Steps between 2009 and 2016 for any of the conditions that were put to him in cross-examination, being conditions affecting his knees, right shoulder or sleep apnoea. There was also no suggestion that the plaintiff’s depression which he had prior to the accident had any effect on his capacity to work having regard to the substantial overtime which he did before the accident.

290. Fifthly, although some medical opinion suggested that the plaintiff had some limited capacity for work (the reports of Dr Harvey at Exhibit B pages C19 and C23), the weight of the medical opinion was that there was little likelihood at his age of being able to find alternative lighter work. The efforts of the plaintiff with the assistance of a back to work assistant did not assist him in being offered any lighter work.

291. The defendant submitted that even if the court was satisfied that it was very likely that Mr Williams would have continued working at the House With No Steps but for the accident until he turned 66, that it is appropriate that a discount be made of 50% for the possibility that the plaintiff would have retired before his retirement age even if the accident had not occurred: written submissions paragraphs 95-106. Reliance was placed on Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-643 in the joint judgment of Deane, Gaudron and McHugh JJ. The defendant points to the plaintiff’s pre- and post-accident medical conditions, the need to provide assistance to his son in relation to his divorce/custody issues, the illness of the plaintiff's grand-daughter which required an admission to Westmead Children's Hospital and his support and the health issues of the plaintiff's wife.

292. The plaintiff submits that there should be no discount at all because the plaintiff always intended to work, he had a good work history, he had continued to work up to the date of the accident despite his wife's health problems and financially he had a strong incentive to keep working.

293. In my view, any discount at 50% places far too much weight on the plaintiff's limited health problems and his family issues. There is also the question why the plaintiff would have retired earlier than his statutory retirement age if he had no financial means to maintain himself and his family in this period. The plaintiff gave evidence that he had limited superannuation. Ultimately his evidence was that he went on the New Start allowance only because his workers compensation payments finished after he resigned.

294. Assessing the matter as a whole and taking into account the various issues which the defendant has relied upon, in my view there should be only a 10% discount as to the claimed past wages and past superannuation. The plaintiff had continued working despite his wife’s illness and his medical problems; he was undertaking considerable overtime; he needed to obtain some income; and he had a good history of employment. However, the risks of his medical conditions and his family problems are relevant.

295. Accordingly, the amounts I allow are:

1. Past wages: $284,369.61 (being 90% of $315,966.23);

2. Past superannuation $31,707.21 (being 90% of $35,230.23).

Fox v Wood damages

296. I have discounted the plaintiff's claim for past loss of wages and past loss of superannuation to take account of the possibility that the plaintiff may have resigned earlier than he did because of his own health and family problems. It is unclear whether as a practical matter this would have affected the Fox v Wood component. The parties should consider this issue and relist the matter if agreement cannot be reached as to it.

Loss of future earning capacity

297. Although the plaintiff's position changed during the hearing, in final submissions this was not pressed.

Past domestic assistance/attendant care services

298. The plaintiff claims $18,173.60 for past domestic assistance/attendant care services relying on the opinion of Ms Lucas set out in the joint report of Ms Lucas and Ms Zeman dated 17 July 2020 at Exhibit B page D9. This is claimed for the period from the date of the accident until 9 May 2017.

299. The defendant says that no amount should be allowed as the plaintiff’s claims do not meet the statutory threshold.

300. Section 15(1)-(3) of the CLA provides as follows:

“15   Damages for gratuitous attendant care services: general

(1)  In this section—

attendant care services means any of the following—

(a)  services of a domestic nature,

(b)  services relating to nursing,

(c)  services that aim to alleviate the consequences of an injury.

gratuitous attendant care services means attendant care services—

(a)  that have been or are to be provided by another person to a claimant, and

(b)  for which the claimant has not paid or is not liable to pay.

(2)  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.

(3)  Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided)—

(a)  for at least 6 hours per week, and

(b)  for a period of at least 6 consecutive months.”

301. The calculations of Ms Zeman, the occupational therapist whose report was relied on by the defendant, may be found at Exhibit B page D8. It is to be noted that very minor breaks are set out in Ms Zeman’s calculations which are consistent with the periods when the plaintiff was undertaking medical procedures in hospital. The defendant submitted that s 15(3)(b) of the CLA requiring attendant care services “for a period of at least six consecutive months” is not satisfied where a plaintiff enters into hospital to obtain medical treatment including operations for injuries received in an accident.

302. That would be an extremely surprising and harsh result of the legislation. This means that if a very seriously injured plaintiff who had received substantial gratuitous care by a member of his family had to enter into hospital for an urgently required medical procedure as a result of the accident and stayed there for a number of days, that attendant care services could not be compensated for because there was a break in the provision of the services due to the fact that the plaintiff was receiving services from nursing and medical staff and not from members of his family. Reliance was placed by the defendant on the decision of the Court of Appeal in Hill v Forrester [2010] NSWCA 170. This point appears to have been left open by members of the Court of Appeal: see at [14]-[16] and [72(ii)].

303. In my view, the preferred construction of the section in the light of the objectives of the section (inferred from the section especially s 15(2)) read with the Act as a whole requires attendant care services to be provided for at least six hours per week and for a period of at least six consecutive months where the plaintiff is available on his or her then current health to be provided such services. If the plaintiff cannot be provided such services because he or she is staying in hospital for a medical procedure for a limited period relating to the accident then the duration requirement may still be satisfied if such services are resumed and provided to the plaintiff when they leave hospital.

301. However, recognition must be made of the fact that attendant care services cannot be awarded for a period when the plaintiff is in hospital instead of being at home: see Nicholson v Nicholson (1994) 35 NSWLR 308.

302. In addition, Mrs Williams gave evidence, which I accept, that she provided the plaintiff with assistance on the days of his operations before he arrived at the hospital: T144.23-.31. This evidence must be taken into account. There were also limited overnight stays: Exhibit B page C27.

303. I also accept the plaintiff’s submission that one must not look at the duration requirement on a daily basis but rather on a weekly basis consistent with s 16(3)(a).

304. For these reasons, the seven periods relied upon by Ms Zeman in her report as set out in the joint report at Exhibit B page D8 should be used in the consideration of past gratuitous attendant care services. Consequently, no attendant care services damages can be awarded for the very minor overnight periods two and four as set out by Ms Zeman because on those days the plaintiff was undergoing medical procedures with overnight stays: see Exhibit B page D6 where Ms Lucas and Ms Zeman set out the operation dates. This would apply on the second days only as Mrs Williams provided her usual help to the plaintiff on the day of admission.

305. The question then turns to the periods numbered one, three, five, six and seven in Ms Zeman’s periods and whether the intensity and duration requirements in s 15(3) of the CLA are satisfied in those periods.

306. The plaintiff’s evidence was that he primarily had the role of lawn and edge maintenance and his wife took care of other domestic duties within the house including all cleaning and cooking duties: T120.42. The plaintiff also gave evidence, which I accept, that after the accident and after the plaintiff’s various operations, he received substantial personal care assistance from his wife: T63 and following and T65; see also T143-T144. The plaintiff gave evidence, which I accept, that after about three months he could get in and out of the shower but he still needed assistance with other personal care activities: T64.7. The cross-examination on this point did not persuade me that the plaintiff’s evidence should not be accepted as to the degree of assistance provided by his wife to him as a result of his injuries sustained in the accident: T121.28-T122.7. I also accept his wife’s evidence on this point. She appeared a careful and honest witness. Relevantly, the plaintiff gave evidence which I accept that when he was home he mowed the lawns and did the edges and that it took one and a half to two hours to do these tasks: T65.31-.41. This was a per week calculation during summer and about every three weeks in winter: T65.40.

307. Having regard to this evidence, it seems to me that the times allowed for assistance with bathing, showering, personal grooming, dressing and feeding in Ms Zeman’s report in the relevant periods (Exhibit B pages C62-63) are too limited whereas the hours allowed by Ms Lucas in her report appear excessive in the light of the evidence. Doing the best I can on all of the evidence, I would allow one hour per day for assistance to the plaintiff for personal care by his wife after the accident, half an hour per week for external/yard maintenance and three hours per week for transport/community access being 10.5 hours per week. This figure on the evidence should reduce to 7.5 hours per week three months after each operation consistent with the plaintiff’s evidence at T64.7 which I consider to be more reliable having regard to the inconsistency between the occupational therapists’ reports. The plaintiff’s evidence, which I accept, was that he did not require assistance getting in and out of the shower after three months following each operation. I accept the average rate per hour of $30 for the attendant care services provided by the plaintiff’s wife as submitted by the plaintiff.

308. The parties should calculate the appropriate amount consistent with the above reasons. Accordingly, I find that the intensity and duration requirements in s 15(3) of the CLA are satisfied from 17 May 2016 until 9 May 2017. Compensation should be provided with the exception of those limited periods when the plaintiff was in hospital for an overnight stay for the purposes of his operations.

Future domestic assistance/attendant care

312. Ongoing equipment expenses were agreed by the parties to be $5,522.18.

313. The plaintiff also claimed home modification expenses in the sum of $2,500 for a handrail at the front stairs of the plaintiff’s home. There is already an existing handrail on the right hand side as someone climbs the stairs.

314. I prefer the report of Ms Zeman on behalf of the defendant that the handrail modification is not required in the light of the existing handrail. I accordingly disallow the claim for $2,500 made as to the handrail by the plaintiff.

315. At present, the plaintiff's wife continues to undertake virtually all the domestic duties around the house. The plaintiff's daughter assists to a limited degree when the plaintiff's wife is away. The plaintiff's son-in-law presently undertakes the lawn mowing and the edges at the plaintiff’s house. This additional assistance per week is less than the threshold of six hours under the CLA.

316. The question is whether any allowance should be made for the plaintiff’s future care on a commercial basis in accordance with the joint report of the occupational therapists Ms Lucas and Ms Zeman in the event that the plaintiff's wife is unable to continue gratuitous care. See their joint report at Exhibit B page D11 of 4.87 hours per week.

317. This issue has to be considered in the light of the plaintiff’s evidence that he could undertake some simple domestic duties within the house limited by his hand and wrist restrictions and the limitations to his shoulder. In relation to his wife, Mrs Williams undertakes the domestic duties referred to by the occupational therapists at present (page D11) but she is four years older than the plaintiff, is recovering from breast cancer and has a significant torticollis injury with neck spasms which make her head and neck shake uncontrollably (this was clear when she gave evidence in the witness box).

318. In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal said that commercial domestic assistance damages should not be awarded where there was no evidence that the gratuitous assistance being provided to the plaintiff would cease. This was effectively on the basis that there was no evidence that commercial care was necessary. The court referred at [18] to “a need for commercial domestic assistance likely to arise in the future”. See also White v Benjamin [2015] NSWCA 75 at [85]-[88] and Smith v Alone [2017] NSWCA 287 at [72]-[78]. In Smith v Alone Macfarlan JA asked the question whether commercial care was “necessary” (at [73]) and whether commercial care would be “needed in the future”: at [75].

319. I am not satisfied on the evidence that it is likely or even that there is some real possibility that the existing gratuitous assistance by the plaintiff's daughter and son-in-law in relation to the house and lawns and garden will cease. The plaintiff's daughter appears to be devoted to her parents and the son-in-law has provided the lawn and gardening assistance for a number of years. In my view, there is no evidence that commercial care for these tasks is necessary.

320. However, I must consider the possibility of the plaintiff's wife being unable to attend to some of the domestic duties claimed in the future.

321. The plaintiff claims future care damages on a commercial basis in accordance with the joint report of Ms Lucas and Ms Zeman dated 17 July 2020 on the basis of 4.87 hours per week x $50 per hour x multiplier 666.4 equalling $162,268.40. See Exhibit B page D11. The plaintiff then reduces this sum by 50% as it is contingent on the plaintiff’s wife being unable to attend to the domestic duties claimed arriving at the final sum of $81,134.20. The defendant only allows the 30 minutes of care per week provided by the plaintiff’s daughter totalling $16,660.

322. The plaintiff’s sum is calculated on the tasks which Mrs Williams does at present: see Exhibit B page D11. Mrs Williams gave evidence of having a number of health problems including continued treatment for breast cancer and a torticollis condition which requires regular specialist review and injections. As indicated above, in the witness box Mrs Williams had what appeared to be uncontrollable jerking movements of the head and neck. Mrs Williams is also about four years older than the plaintiff.

323. Section 13 of the CLA provides as follows:

“13   Future economic loss—claimant’s prospects and adjustments

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

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

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

324. In my view, there should be some award of damages for possible future commercial care having regard to the real risk that Mrs Williams will not be able to undertake the duties which she presently undertakes to which Ms Lucas and Ms Zeman refer in their joint opinion. It is difficult to assess the degree of the risk on the evidence. In my view, some significant discount should be made to any sum in accordance with the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 and Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [159]-[160]. Doing the best I can on the evidence, in my view the figure proposed by the plaintiff of $162,268.40 should be reduced by 70% not 50% as the plaintiff submits. The figure arrived at with this percentage reduction for future domestic assistance on a commercial basis is $48,680.52 (4.87 hours per week x $50 per hour x 666.4 x 30%). I award that sum.

325. I do not accept the defendant’s submission that if the plaintiff’s wife could not undertake the activities that his daughter would. His daughter has a young family and is in employment.

Summary of damages

326. Accordingly, the damages which I allow are as follows:

Non-economic loss

$197,500

Past out of pocket expenses

$126,769.41

Future out of pocket expenses

$4,979.00

Past economic loss

Loss of wages

$284,369.61

Past loss of superannuation

$31,707.21

Fox v Wood

Provisionally $15,922.00

(to be calculated by the parties and subject

to agreement as to a lesser amount)

Past domestic assistance/attendance

care

to be calculated by the parties

Future domestic assistance/attendant

care services on a commercial care

$48,680.52

Agreed equipment

$5,522.18

327. The total figure should be reduced by 15% for the contributory negligence found.

Determination

328. Accordingly, for the above reasons I make the following orders:

1. Judgment for the plaintiff.

2. The defendant is to pay the plaintiff’s costs as agreed or assessed.

3. The parties are to bring in agreed short minutes of order consistent with the court’s reasons within 14 days.

4. Any application to vary the costs order in order (2) above is to be made within 14 days.

5. Any party may relist the matter on 3 business days’ notice.

6. Exhibits to be retained until further order.

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Decision last updated: 25 September 2020