District Court New South Wales Medium Neutral Citation: Baker v Bunnings Group Limited [2020] NSWDC 310 Hearing dates: 4-8 May 2020; 12 May 2020; 21 May 2020 Date of orders: 18 June 2020 Decision date: 18 June 2020 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Judgment for the defendant. (2) The plaintiff is to pay the costs of the defendant of the proceedings as agreed or assessed. (3) Liberty to any party to make an application within 14 days to vary order (2) above. (4) The exhibits are to be retained for 28 days. Catchwords: Torts – negligence – Civil Liability Act claim – plaintiff falls on edge of kerb of raised concrete island in carpark of store operated by the defendant – whether defendant store operator breached a duty of care owed to the plaintiff – whether warning was required of kerb – whether some other delineation of kerb required – whether the passage over the island should have been prevented by ropes or barriers – degree of loss of the plaintiff – quantum of domestic assistance to be awarded to the plaintiff Legislation Cited: Civil Liability Act 2002 (NSW), ss 15, 15B and 16 Civil Liability (Non-economic Loss) Amendment Order 2019 Evidence Act 1995 (NSW), s 136 Work Health & Safety Act 2011 (NSW) Work Health & Safety Regulation 2011 (NSW) Cases Cited: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Bruce v Apex Software Pty Ltd [2018] NSWCA 330 Burwood Council v Byrnes [2002] NSWCA 343 Council of the City of Sydney v Bishop [2019] NSWCA 157 Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Lloyd v Thornbury [2019] NSWCA 154 Miller v Galderisi [2009] NSWCA 353 Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Ryde City Council v Saleh [2004] NSWCA 219 Samco Pty v Wurth [2015] NSWCA 117 Smith v Alone [2017] NSWCA 287 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 White v Benjamin [2015] NSWCA 75 Whitton v Dexus Funds Management Ltd [2019] NSWDC 579 Category: Principal judgment Parties: Shirley‑Ann Baker (Plaintiff) Bunnings Group Limited (Defendant) Representation: Counsel: E G Romaniuk SC and S J Roulstone (Plaintiff) G Jensen (Defendant) Solicitors: LHD Lawyers (Plaintiff) McCabe Curwood (Defendant) File Number(s): 2018/00307583 Judgment 1. In these proceedings, the plaintiff, Ms Shirley-Ann Baker, brings a claim against the defendant, Bunnings Group Ltd, the operator of a hardware store situated at the relevant time at 215 Lake Road, Port Macquarie in the State of New South Wales, for damages in relation to personal injury suffered by the plaintiff on 25 October 2017 when she fell from a kerb of a raised concrete island in the carpark of the store injuring her left ankle. The proceedings are brought under the Civil Liability Act 2002 (NSW) ("CLA"). It is not in dispute that the defendant owed the plaintiff a duty of care or that the plaintiff suffered a serious injury to her left ankle in the accident. The defendant has denied liability and submits that it did not breach any duty of care owed and also submits that the plaintiff has failed to exercise reasonable care for her own safety. 2. Accordingly, the issues to be determined by the court on the pleadings are: 1. What was the duty of care owed by the defendant to the plaintiff? 2. Did the defendant breach the duty of care which was owed to the plaintiff and, if so, in what way? 3. Did any breach of the duty of care owed cause the injuries in relation to which the plaintiff seeks damages? 4. Was there any breach of statutory duty by the defendant giving rise to a cause of action in the plaintiff? Counsel for the plaintiff conceded that no separate statutory duty giving rise to a cause of action was relied upon; 5. What was the extent of the plaintiff's injuries caused by the accident? 6. What continuing disabilities and loss does the plaintiff have arising from the accident? The pleadings 1. The plaintiff commenced the proceedings by a Statement of Claim dated 8 October 2018. In substance, the plaintiff pleads her cause of action as follows: 1. At all relevant times, the defendant owned and operated the premises at 215 Lake Road, Port Macquarie. The defendant admits it operated the premises at all relevant times but denied it owned the premises: Defence paragraph 3; 2. On 25 October 2017 at approximately 10am, the plaintiff was a lawful entrant at the premises when, as she was proceeding to purchase products at the timber section of the premises, she walked towards the timber section "where her left foot tripped on a raised kerb section ("the kerb") of the car park/walkway falling forward"; 3. As a result of the plaintiff having tripped on the kerb, she suffered injury, loss and damages; 4. In paragraph 6 of the Statement of Claim, it is pleaded that the particular risk of harm was the risk of a lawful entrant taking reasonable care for their own safety, tripping on the kerb and falling forward and suffering injury as a consequence; 5. In paragraph 7 it is pleaded that the risk of harm was foreseeable, the kerb created a not insignificant risk of injury for entrants such as the plaintiff arising from tripping and falling on the kerb and the defendant was aware of the risk of harm; 6. It is pleaded that a reasonable person in the position of the defendant would have taken steps and precautions so as to prevent injury to a person such as the plaintiff from tripping and falling on the kerb within the premises. These are set out in paragraph 11 and include "delineating the presence of the kerb by way of warning, sign, painting or other method of distinction so as to warn entrants and/or attendees"; 7. A duty of care is pleaded as being owed by the defendant to the plaintiff as the operator of the premises (paragraph 12) and that there was negligence of the defendant "in failing to delineate the kerb near the timber section entrance in its car park" which was said to be "a necessary condition so as to constitute harm to the plaintiff". 1. Paragraph 15 of the Statement of Claim sets out particulars of negligence of the defendant as follows: "(a) In failing to take reasonable care for the safety of the Plaintiff; (b) In failing to properly delineate the kerb area in the car park near the entrance to the timber section; (c) In failing to give any or any adequate warning to the Plaintiff of the dangerousness of the kerb being in the immediate vicinity of the entrance to the timber section; (d) In failing to erect ropes and/or barriers around the kerb; (e) In failing to erect bollards around the kerb; (f) In failing to warn the Plaintiff as to the dangerous nature of the kerb being in the general vicinity of the entrance to the timber section of the premises; (g) In failing to comply with AS/NZS 2890.1; 2004, (h) In failing to prevent a trip and fall hazard to the Plaintiff; (i) In allowing a trip hazard to remain near the entrance to the timber section of the premises." 1. A cause of action for alleged breach of a statutory duty under the Work Health & Safety Act 2011 (NSW) and the Work Health & Safety Regulation 2011 (NSW) is also pleaded. See paragraphs 16-24. This was not relied on in final submissions. It was submitted the alleged breaches were relevant to the allegation of negligence. 2. The plaintiff filed a Statement of Particulars dated 8 October 2018 with her Statement of Claim. The particulars of injury referred to was a fracture of the left ankle and a dislocation of the left ankle. Significant continuing disabilities are set out including pain in the left ankle, pain in the left foot, poor mobility and a restricted range of motion in the left ankle. It is particularised that the plaintiff had an open reduction and internal fixation of the left ankle with the insertion of screws and metal plates to the left ankle. Detailed particulars are given in relation to the claims made by the plaintiff including for past and future out-of-pocket expenses and past and future domestic assistance. 3. No claim is made for past or future economic loss, except in relation to the cost of gardening and lawn mowing services which the plaintiff has had to arrange and pay for. 4. The defendant filed a Defence dated 20 December 2018. The defendant, as stated above, admitted that it operated the premises at all relevant times. It also admitted that the plaintiff attended the premises on 25 October 2017. The defendant also accepted that the car park area in which the plaintiff tripped and fell was part of the defendant's workplace. Otherwise, it denied the allegations of liability and pleaded contributory negligence. The plaintiff's evidence 1. The plaintiff tendered a bundle of medico-legal reports and an engineering expert report. The bundle became Exhibit A in the proceedings. The various reports will be considered further below. The plaintiff's oral evidence 1. The plaintiff gave evidence that she was born in August 1950 and was thus 69 years of age at the time of the final trial. She was 67 years of age at the time of the accident on 25 October 2017. The plaintiff gave evidence that she was a carer of two grandchildren at the present time but was otherwise not employed. 2. The plaintiff said she came from a large family of nine children. After completing the leaving certificate, she became an apprentice tailor making clothes and suits but stopped work at 18 as she was getting married. The plaintiff married soon after and quickly had two children. She was pregnant with a third child when her husband died in 1971 whilst having major surgery. The plaintiff stated that she had three daughters from the first marriage. The plaintiff remarried a number of years thereafter and had two further daughters from her second marriage. The second marriage ended in divorce in 2002. 3. The plaintiff has had a long history of caring for some of her grandchildren. The plaintiff looked after three children of one of her daughters from her first marriage and then later three children from one of her daughters from her second marriage. The children from the first daughter referred to are now adults. At one stage, the plaintiff had five of her grandchildren living at her house under her care. In relation to the last three grandchildren, the plaintiff was a carer for the children on behalf of United Burnside. At present, the plaintiff still has two of the second set of three grandchildren living with her. 4. In relation to past medical issues, the plaintiff gave evidence in chief that she had a neck injury in 1992 from which she recovered. In 2008, she was diagnosed with Type 2 diabetes which is managed by medication under the supervision of a specialist. In 2011, the plaintiff was diagnosed with a form of cancer which was treated surgically and has been extensively monitored. The cancer is now in remission. 5. The plaintiff gave evidence that prior to the accident she was very active. As well as caring for her grandchildren, she engaged in tennis, walking and swimming particularly in the surf at the beach. Her care also involved playing with her grandchildren. 6. Following her divorce in mid-2002, the plaintiff undertook substantial work on her home including painting, an extension and the erection of a pergola. The plaintiff undertook some of the work in relation to these various projects including getting quotes, painting, staining timber and cleaning up after tradesmen. 7. Prior to the accident, the plaintiff said in chief that she was responsible for the maintenance of her garden including mowing and everything on the inside of her house. Although she had three grandchildren at the time of the accident, virtually all domestic chores prior to the accident were, according to the plaintiff, completed by the plaintiff. The plaintiff stated that cleaning was important to her as she had grandchildren there and she "ran a clean house". 8. Having regard to the renovation work which she was undertaking, the plaintiff stated that she was a customer of a Bunnings store at Lake Road in Port Macquarie. Since the accident, the Bunnings store has moved to John Oxley Drive at Port Macquarie. The plaintiff gave evidence that there were two car parks at the Bunnings store at Lake Road which had a concrete surface as well as some garden beds and trees. She stated that there were three entrances to Bunnings: a main entrance, an entrance to a nursery and an entrance to the timber section. The main entrance was from a concrete area through red doors. In relation to the timber section, the plaintiff said that there was an entrance with the word "timber" above the door. The plaintiff stated that she had been to the timber section of Bunnings at the Lake Road store on a number of occasions. The plaintiff gave evidence that trucks and other vehicles could enter the timber section of Bunnings by being given entrance by an operator who raised a boom gate to allow the vehicle to enter. The plaintiff said that there was a pedestrian entry also to the timber section to the left of the exit boom gate which she had used. The plaintiff also stated that she could access the timber section through the main store. 9. The plaintiff gave evidence that near the timber entrance to Bunnings was a raised section of concrete. This was described by various witnesses as a concrete island or platform. Prior to the accident, the plaintiff stated that she had seen items on the raised section including items for sale on pallets and gas bottles maintained in a mesh cage. She stated that she had also seen goods for sale near the raised section of concrete. The plaintiff confirmed that prior to the accident, she had been a regular visitor to the timber section for wood for the garden or for the pergola which she was building. She also agreed that she had used the pedestrian entrance to the timber area. 10. The plaintiff gave evidence that on 25 October 2017 she was building a platform in her back garden near her stairs and she had purchased items from Bunnings including hardwood palings and nails to create the platform. The plaintiff stated that she realised that three of the palings she had were too long and she travelled to the Bunnings store in order to request one of the staff members there to cut the palings for her to the correct size. The plaintiff said that the staff member had done this for her on prior occasions. The plaintiff stated that she drove to the Bunnings store arriving between 9:30 and 9:45am. She parked in the main car park, alighted from her vehicle and walked across the car park towards the timber section at Bunnings carrying three 3 feet long palings in her hand. The plaintiff said that she was wearing jogging shoes at the time which she wore frequently. She described the condition of the shoes as worn but not worn out: T64.22. She said she had no difficulties at the time walking in joggers. 11. The plaintiff said that as she approached the timber section she saw the gas bottles to the left and then noticed that a truck appeared to be about to come out of the timber section of the store. The plaintiff said that she turned about face and then walked past the gas bottles now to her right. She said she did this as she thought that her approach may hinder the truck exiting the timber area. The plaintiff said that she formed the view that she would walk across the car park and cut through to the pedestrian entrance to the timber area of Bunnings. The plaintiff said that she proposed walking across what she described as the "little raised section": T64.37. She later called it the "little raised platform": T65.22. To do this, she walked across the car park immediately before the raised concrete platform or island in the car place which was marked with a sky-blue disabled person marking. 12. The plaintiff said that she stepped up from the gutter and was looking where she was walking: T65.24. She described the gutter as being square in shape. At the time, she said the only items on the raised platform were the gas bottles. She said there were no pallets of goods on the raised platform or in its vicinity or any items: T66.7. That is contrary to later evidence given by a number of Bunnings' witnesses. The plaintiff stated that as she stepped on to the raised platform she continued to walk, looking normally where she was going: T66.12. 13. It is important to set out what the plaintiff said then occurred from her oral evidence. She stated as follows: "Q. When you were on that raised section you continued to walk? A. Yes. Q. As you were walking, what were you doing by way of keeping a lookout? A. Just walking normally and yeah, fixated on where I was going. Q. Were you watching where you were walking? A. Absolutely. Q. At some stage something happened to you. Can you tell the judge how you were walking and then what happened? A. I was walking across the, the - this little raised platform and I wasn't aware that there was another step down, so I just thought I had to go straight ahead, my foot tipped forward and then snapped to the side and I ended up face forward on the concrete. Q. You said you weren't aware that there was another step down. As you were crossing the raised section, what did it look like to you when you were crossing it? A. That it just continued to, to the entrance. Q. As you were crossing, did you see any change in height? A. No, not visually. From the way that I was walking across, it had, it had angled down, so you couldn't see anything raised up from that." (emphasis added) T66.9-.32 1. It seems clear from the evidence that the plaintiff was not aware that the raised platform or island had a step down before the pedestrian entrance to the timber area of Bunnings. 2. The plaintiff described her foot as going forward and she heard a loud crack. The plaintiff said she fell forward facedown and was in excruciating pain. She said she did not look initially where she had fallen as she was in too much pain. A female staff member from Bunnings assisted her and then a male staff member came over. They helped the plaintiff to sit leaning against the gas bottle cage. The female Bunnings staff member obtained an ice pack. An ambulance was called and took 45 minutes to arrive. The plaintiff said that her foot appeared to be dislocated and was at a right angle to her leg. 3. The plaintiff stated that prior to the accident, she had not walked across the raised section to go to the timber entrance of Bunnings. The day of the accident was the first time she had crossed the area: T68.2. 4. The plaintiff was taken to a number of photographs in Exhibit A from page 131. In relation to the photograph at page 131, the plaintiff confirmed that the gas bottle cage shown was present on the day of the accident but not the pallet or sandwich board sign shown in the photograph. The plaintiff confirmed that the boom gate in the photograph at page 133 was present at the time of the accident. The plaintiff confirmed that the photographs at pages 138 and following were taken by her daughter on an iPhone on a public holiday. It was not stated when: T71.7. 5. The plaintiff gave evidence that she was taken by ambulance to Port Macquarie Base Hospital where she remained for six days. The plaintiff suffered a fractured left ankle in the accident. She confirmed that she had a procedure involving an open reduction and internal fixation with the insertion of screws and a plate into her left ankle. The plaintiff indicated that when she was discharged she was in a wheelchair with a half cast as she had an open wound. A walking frame was provided to her for toilet and shower transfers as she could not weight bear. The plaintiff said she was in a wheelchair for six weeks until her plaster was removed and then she could partially weight bear and was able to have physiotherapy and hydrotherapy. She was placed in a "moon boot" after her cast was taken off. The plaintiff indicated that she commenced a graded process of weight bearing which took eight to ten weeks from the date of the accident and then she proceeded to use a walking stick: T73.45. The plaintiff said she was not able to use crutches. 6. The plaintiff confirmed that she has seen a number of doctors for the purposes of medico-legal reports and stated that she told the truth to the various doctors to the best of her abilities. When she saw Dr Bodel in September 2018, the plaintiff confirmed that she had pain and stiffness and a limp and could not wear enclosed shoes. She wore slip on shoes at the time. She said at the time she had a sharp stabbing knife like pain on occasions when her foot was twisted or rolled. She said that she used medication for the pain but was allergic to codeine. She also rested and elevated the foot to relieve the pain and used ice packs. 7. The plaintiff said that when she walked her left foot turned slightly to the left hand side whilst limping as she found that more comfortable and it reduced the pain. The plaintiff gave evidence that she could walk satisfactorily on flat surfaces but had difficulty walking up or down hills or on uneven ground. 8. The plaintiff stated that she had the plate and screws removed from her ankle on 20 November 2018. This helped with the pain as the screws were pushing against the skin. She also has had the benefit of physiotherapy. The plaintiff stated that she could not walk on the beach and could no longer engage in many of the activities she did prior to the accident. She said she had difficulty going with her grandchildren to the park, in walking on grass and could not kick a ball. She said she was now an "observer" and needed a stick if she went on grass to provide her with stability. 9. The plaintiff said that she undertook shopping and placed her walking stick in the trolley which she leaned on. She said that she was able to undertake shopping for an hour to an hour and a half but if more time was needed she would need to rest. 10. Her physiotherapist had prepared inserts for her shoes including in special jogging shoes. The plaintiff said that she wore sandals with specialised inserts and runners sometimes. She said she was unable to wear shoes with heels and wore only flat sandals and joggers. 11. The plaintiff said she was unable to engage in any beach activities but was able to swim in a pool. She said she had difficulty sleeping. 12. The plaintiff gave evidence in relation to her domestic activities prior to and after the accident. Since the accident, the plaintiff said that she has been unable to undertake any outside or handyman activities apart from pulling out the occasional weed. She said she had retained someone to do gardening and mowing for her. She said that mowing and gardening was conducted by this gentleman once a week in summer and once a month in the cooler months at $60 per session: T78. 13. In relation to indoor activities, the plaintiff said she was unable presently to do a "deep clean" of the house but was able to undertake surface cleaning. She said that vacuuming was undertaken by her 13-year-old grand-daughter and her grandchildren were able to make their own beds. She gave evidence that her daughter Melinda was able to do a "deep clean" of the house for her. She said her daughter "whizzes through the house": T78.47. If she had not been in the accident, she said that she believed that her 13-year-old grand-daughter would not be undertaking the vacuuming but she knew that the plaintiff needed help. 14. The plaintiff said that she could make her own bed, load and unload the dishwasher, undertake cooking using a stove top and complete general tidying up. In relation to bathrooms, showers and toilets the plaintiff said she was unable to undertake cleaning except for sinks: T79.18. The plaintiff said that her injury had had an emotional impact on her including feeling down, depressed, angry and frustrated. 15. The plaintiff said that she undertook limited social outings as she could not go to the beach or in some areas at parks and was limited to socialising with her family at houses or at barbecues. The plaintiff said that she had put on weight of about 10kg since the accident due to difficulty exercising. She later altered that evidence to say that she had put on about 5kg in weight. 16. The plaintiff described her fitness prior to the accident as "pretty good" and said that her fitness now "could be better": T79.49. She said that she believed she had reached a stage where her ankle did not appear to want to improve. She said she was undertaking exercises as indicated to her by her physiotherapist. 17. The plaintiff gave evidence that she had suffered from pain in the hip when she was required to wear a moon boot. 18. The "deep clean" at her house was undertaken by her daughter Melinda who lived at Port Macquarie but had four children of her own. Melinda Baker later gave evidence that her four children were adults and had left home. The plaintiff said that if her daughter did not undertake the cleaning that she would have to hire a professional cleaner. She said she gave her daughter gifts and "pocket money" for the cleaning. When asked whether it was an imposition on her daughter, the plaintiff candidly stated that all her daughter's children had left home and she did not believe it was an imposition on her daughter: T80.43. 19. On questioning from the court, the plaintiff stated that her daughter Melinda helped with cleaning once a month for between two and three hours: T81.1‑.10. She said her grand-daughter undertook the vacuuming as quickly as possible for a period of about 20 minutes per week: T81.17. 20. The plaintiff stated that she thought her daughter did a "great job": T81.42. She said she was also able herself to maintain a reasonable standard of cleanliness in the house between her daughter undertaking the "deep cleaning". 21. The plaintiff then gave further evidence in relation to the care she received after she was discharged from hospital after the accident. The plaintiff stated that she returned home after her injury and the procedures in hospital on 30 October 2017. At that stage, she had three grandchildren living with her who were aged 15, nine and eight. The plaintiff stated that upon discharge she used a wheelchair as she could not weight bear. She said that her daughter Michelle attended her house daily to assist the plaintiff with self-care and duties relating to her grandchildren: T88.27. The plaintiff also said she was provided with six weeks of home care by ComPacks: T88.30. Evidence was given that the daughter Michelle transported the grandchildren to school, picked them up from school and took them to activities. 22. The plaintiff stated that her daughter Melinda moved in to her house to assist her on about 8 November 2017: T89.17. Melinda stayed at the plaintiff's house for "up to about three months, maybe a little bit more": T89.27. She moved into the plaintiff's house as she did not have a car and was not a driver. During this period, the plaintiff said she was a supervisor only and Melinda did all the domestic activities as well as assisting with the plaintiff's personal care. 23. In relation to personal care, Melinda wheeled the plaintiff in her wheelchair down a ramp outside the house to a garage where there was a toilet and shower off the garage. Melinda assisted her with showering and dressing which occurred on a daily basis at around 9:30am to 10am. She also assisted the plaintiff with her bedding and medications. 24. In relation to domestic activities, Melinda completed these daily. These included general household duties such as cooking, washing and vacuuming, although ComPacks did some mopping and vacuuming. Melinda also assisted with mowing the lawn weekly and gardening. 25. In relation to her cooking, Melinda prepared the evening meal, which took about two hours daily, initially for seven days a week. The other meals did not involve cooking. The assistance with washing included the laundering of clothing on a daily basis (about one hour) and the weekly changing and washing of bedlinen. In relation to cleaning, the plaintiff gave evidence that Melinda was not happy with the cleaning provided by the ComPacks cleaners and she undertook a "deeper clean with vacuuming and mopping". Initially this was allegedly done for four hours daily which included assisting the children with their homework. The assistance was provided over about a three month period: T89.27; T92.31. 26. The plaintiff's granddaughter Magenta helped Melinda with cooking, dishwashing and getting the clothes off the line. This assistance was estimated to be one hour in the morning and one hour in the evening daily: T92.27. 27. The plaintiff gave evidence that her daughter Melinda left her house at about three months after the accident. She lived close by and contacted the plaintiff regularly if she needed anything. Melinda continued to assist in mowing the lawn and weeding the garden up until about September or October 2019 when the plaintiff arranged for a gardener to undertake the task: T93. In addition, Melinda assisted with a general clean of the house every three weeks while the plaintiff undertook surface cleaning. The plaintiff's grand-daughter Magenta continued to assist her as part of chores completed as a family unit. The plaintiff's grand-daughter Magenta moved out of the premises in 2018. Now the plaintiff's other two grandchildren who live with her assist her by undertaking some household chores. 28. The plaintiff assessed Melinda's assistance with mowing and weeding from October 2017 to be about two hours per week during the warmer months and about every three weeks in other periods. The plaintiff's gardener is paid $60 a fortnight by the plaintiff for undertaking the activities now: T94.41 cf T78.24. This started in September/October 2019: T94.49. The evidence given by the plaintiff that she did the mowing and weeding before the accident was contrary to that given by Melinda. I will consider this further below. 29. In cross-examination, the plaintiff agreed that she attended Bunnings at Port Macquarie frequently prior to the accident: T97.38. She said that she started attending there from about 2002 when she commenced renovating her house. The plaintiff gave evidence that she always entered Bunnings through the main entrance. She stated that occasionally she went to the builder's area but usually proceeded to that through the main entrance rather than the trade entrance: T98. After further cross-examination, the plaintiff confirmed that as far as she could recall, she never entered the timber or trade entrance at Bunnings shown in the photo of it at Exhibit A page 133 prior to the accident but accepted that she exited from that entrance on a number of occasions from time to time: T99.18-T100.5. In doing so, she walked through the gap between the boom gate post and the fence. The plaintiff stated that there were generally items placed on the raised concrete area when she exited. She walked alongside the concrete island and said that she did not cross the concrete island in returning to the car park. After further cross-examination, the plaintiff assessed that she did this about once or twice per year from 2002 to about 2015: T102.37. The plaintiff confirmed that when she exited there was often produce on the concrete island. She could not recall observing the island when she exited from the timber entrance with no produce on it. The plaintiff said that she did not take notice of what was on the island other than noticing that there were gas bottles stored there and other items. 30. The plaintiff gave evidence that she was not aware that the island had a kerb around it and did not take notice of that: T103.34-.39. The plaintiff stated that her only recollection of the island was that items were placed on it when she exited: T105.1. It was put to the plaintiff that as she exited the timber entrance when she used that exit prior to the accident and whilst walking away from the warehouse, she must have seen the island had a kerb through the deep and prominent "groove" near it. The plaintiff said that that was not something which she observed: T106.18-.22. The plaintiff also said that she did not observe upon exiting prior to the accident that there was an island in the sense of a raised concrete area as it was not something that she would actually look at or observe: T106.30. 31. The plaintiff was then asked numerous questions in relation to her medical history prior to the accident. She accepted that she had various prior health issues: T107.32. In relation to these: 1. The plaintiff did not recall having lower back pain in 1983; 2. The plaintiff recalled having a workplace injury in 1993 when she worked in a nursing home as a kitchen hand. The plaintiff said that she tore her rotator cuff muscle in the right shoulder and had swelling at the C4/C5 level. The plaintiff said this difficulty had since resolved, although she had problems with her right shoulder with the rotator cuff in 2001; 3. The plaintiff confirmed that in about August 2003 she had low back pain and pain to the left knee for which she had hydrotherapy. The plaintiff confirmed that she had physiotherapy also for these problems; 4. When it was put to the plaintiff that she had prior left knee pain, back pain, neck problems and shoulder problems, the plaintiff said that she did not have these at the same time but over several years. She also confirmed having problems with her sciatic nerve "in [her] lower back"; 5. The plaintiff confirmed that she had treatment for her left knee in 2003; 6. The plaintiff confirmed that in 2008 she had a frozen left shoulder for which she had physiotherapy; 7. The plaintiff confirmed that prior to the accident including in 2008 she had problems with her weight and keeping her weight under control; 8. The plaintiff confirmed that she was regarded as unemployable as a kitchen hand due to her shoulder/neck injury and was on a disability pension from 1993 to 1998. She said this ceased when she became a foster carer in 1998 to 1999; 9. In relation to the suggestion of injury in a motor vehicle accident in April 2011, the plaintiff said that a car backed into her but she was not harmed at all. She denied that she had shoulder and right wrist pain; 10. The plaintiff confirmed that she had problems with her left knee in September 2013 when she was struck by a dog. This caused a fracture to her tibial plateau in her left knee: T114.19-.37. The plaintiff confirmed that she was referred to a care assistance program but did not take it up. She also had physiotherapy and treatment in a heated pool; 11. The plaintiff confirmed that she was diagnosed with diabetes in 2014 (T115.19: she had earlier stated 2008: T57.48) and as part of the ongoing management of that condition was referred to a dietician; 12. The plaintiff confirmed that in January 2017 she was referred for aquatic physiotherapy due to lower back pain: T115.42. 1. The plaintiff was then asked a number of questions in relation to her dealings with Burnside concerning her care of her grandchildren. The plaintiff stated that she did 99% of the domestic activities in the house prior to the accident while her grandchildren assisted in making their beds, picking up their clothes and cleaning up the dishes: T116.39. There was a degree of cross-examination in relation to matters revealed in the Burnside Uniting notes suggesting that in 2018 the plaintiff was active and coping well following her accident. The plaintiff said she could get around and take her grandchildren to activities. However, she used a stick and was able to undertake only surface cleaning. The plaintiff denied that she was referred to a Sandy Gugenberger for assistance and advice in relation to her feet concerning her diabetes and said that the referral related to her ankle problems but while she was there she had a review in relation to her feet for diabetes issues: T122.17-.30. 2. The plaintiff confirmed that she had a number of holidays with her grandchildren at Forster at a resort after the accident. It took her about an hour and 15 minutes to drive to Forster: T122.49. 3. The plaintiff confirmed her evidence that her daughter Melinda assisted her with a "deep clean" of her house once a month: T130.15. The plaintiff also confirmed that she gave Melinda little gifts or some "pocket money" for assisting her: T130.20. These included sums of $20 or $50 if Melinda needed money. The plaintiff said it was not given to Melinda for each time she performed a "deep clean": T130.46. The plaintiff could not recall how frequently she gave money to Melinda for assisting her: T131.7. 4. The plaintiff was cross-examined in relation to any suggestion that she had a weight gain due to her injury. The plaintiff agreed that she believed she put on 10kg following her injury due to inactivity: T131.13. On further cross-examination, the plaintiff agreed that her weight fluctuated before the accident including at weights similar to that which she had in October 2018 after the accident: T131.44. The plaintiff then clarified her evidence in saying that she thought she put on around 5kg in weight: T131.48. The plaintiff rejected the proposition that she exaggerated the weight she put on so as to make out that she was disabled and could not exercise: T132.7. When it was put to the plaintiff that she did not refer to any problems with her left ankle to a care worker on 8 February 2019 because she had no longer any problems with her left ankle, the plaintiff denied this and said that she had problems which had persisted with her left ankle: T134.16. The plaintiff denied that her evidence that her daughter helped her with a "deep clean once a month" was inaccurate and said it was as accurate as she could be: T135.30. 5. It was put to the plaintiff that she saw Sandy Gugenberger, physiotherapist, because of podiatry issues relating to her Type 2 diabetes. The plaintiff rejected this and said that the consultation was about her foot and gait as her left foot angled out. While she was there she also discussed her diabetes: T137.9-.16. 6. The plaintiff confirmed that she saw a Mr Jackson Tisdell, a sports injury physiotherapist, for treatment and stated to him that she found pool exercises and physiotherapy as not beneficial to her as it tended to "irritate the injury" in her foot: T137.40. This is relevant to the claim made by the plaintiff for future membership of a pool for hydrotherapy purposes. 7. The plaintiff was then asked a large number of questions about the day of the accident and what she saw and perceived at the time. The plaintiff said that she believed the accident occurred between 9:30am and 9:45am but was unable to be specific. She confirmed that the weather was sunny and fine and she had good vision as she was wearing prescription glasses. When it was suggested to her that the raised concrete island was well illuminated by the sunny day, the plaintiff said it was shaded in the morning and confirmed this when she was challenged on the issue: T138.27-.35. In the end, after further cross-examination, the plaintiff said that she did not recall: T138.35. 8. The plaintiff confirmed that because she saw a truck in the trade entrance she back tracked her steps and went around the island to go diagonally across it: T138.48. The plaintiff was taken to photograph five at Exhibit A page 119. She rejected that the red arrow in the photograph depicted her path across the island to the boom gate and said that the path was more angled towards the side of the building: T139.20-.24 and T140.1-.15. 9. The plaintiff confirmed that the photographs at Exhibit A pages 131-2 depicted the kerb which she had to step up onto to cross the island: T140.40. The plaintiff said that as she approached the concrete island and the kerb which she intended stepping up onto she was paying attention as to where she was walking: T140.50. She also confirmed that as she stepped up onto the island she saw the kerb edge that she had to step up onto: T141.3. 10. It was put to the plaintiff that she also saw the kerb edge had a "deep and prominent groove running parallel with the kerb edge, four inches inside the kerb edge". The plaintiff described it as a normal joint put through concrete to deal with problems with cracking and expansion and was part of the kerb: T141.25-.41. 11. When taken to the photograph at Exhibit A page 132, the plaintiff confirmed that the approximate area where she fell on the day of the accident was where the salt bags on a pallet are depicted in the photograph: T142.6. When she was further directed to the yellow triangle on the corner of the salt pallet in the photograph at page 132 the plaintiff could not say that was the area where she fell and stated that she could not "be absolutely specific. I was just walking across" but confirmed the fall was in "that area": T142.8-.16. The plaintiff said that she did not have "total recall": T142.27. When it was put to the plaintiff that the longitudinal groove near the kerb where the plaintiff fell could readily be seen in photographs 132 and 131, the plaintiff confirmed that she could see the longitudinal groove in photograph 131. When she was asked about photograph 132 the plaintiff said she did not see any groove: T144.6 and .24. In the end, the plaintiff said that she was not sure where she fell and particularly could not say that it was exactly where she fell where the little yellow marker was indicated in photograph 132: T144.40. However the plaintiff acknowledged that she could see an expansion joint in close proximity to the edge of the kerb where she fell: T144.48. 12. When taken to photograph four at page 119 of Exhibit A the plaintiff confirmed that the area circled was "an approximation" of where she fell: T145.8. The plaintiff then accepted that in the area where she fell, the kerb had an expansion groove which was part of the kerb similar to the expansion groove or joint where she stepped up before the accident: T148.41-T149.29. The plaintiff also accepted that the further away from the kerb the less distinct the expansion groove would be which was part of the kerb: T149.45. The plaintiff gave evidence that recognising an expansion joint would not have let her see that there was a drop present at a kerb: T150.23. The plaintiff stated that on the day of the accident she would not have been paying a great deal of attention to expansion joints. From her perception and the way she walked through, it appeared to her as if the island just continued through with an expansion joint for the concrete: T151.44: "From my perception and the way I walked through that looked like it just continued through with an expansion joint for the concrete." 13. The plaintiff was then cross-examined in relation to the history set out in Dr Bodel's first report. She confirmed again that she did not have a total recall as to what happened on the day of the accident but then stated: "As far as I, I perceive from afar it was on the one level … It just all happened so very quickly. I was walking in that direction and bang, I was flat on my face": T154.14-.22. When it was suggested to the plaintiff that she failed to pay attention to where she was walking for her own safety, the plaintiff said she was always aware of and fairly precise where she walked: T154.31. 14. The plaintiff was then asked questions about the domestic jobs completed by her grandchildren after the accident. The plaintiff stated that the eldest grand-daughter living with her, Magenta, left her house at probably the beginning of 2018 when she was 17 years old. She was with the plaintiff for about two and a half years. During that time, Magenta assisted in tidying up after meals, peeling potatoes, making her bed and vacuuming the bedrooms at the weekend which the plaintiff had previously stated took her about 20 minutes. Prior to the accident in October 2017, the other two grandchildren living with the plaintiff undertook minimal tasks such as stacking or rinsing dishes for the dishwasher or emptying the inside bins and bringing the garbage bins back in after they were emptied. After Magenta left the plaintiff's house, the younger grand-daughter helped the plaintiff with vacuuming the bedrooms. 15. The plaintiff confirmed that even before the accident she had aches and pains after finishing domestic duties including after doing heavy work such as mowing. However, she denied that her daughter helped her undertake a "deep clean" prior to the accident. She also denied that she found mowing and gardening difficult prior to the accident as she had a self-propelled key start mower. 16. In re-examination, the plaintiff was asked in relation to the day of the accident, after she had stepped up onto the raised section from the disabled car parking spot, whether she recalled seeing the expansion joint in the area where the accident happened. The plaintiff replied: "On the day it would have been just in passing, I wasn't fixated on it or anything": T159.24. The plaintiff said that there was nothing about the expansion joint on the day that indicated to her there was a change in level of the surface that she was walking across: T159.30. The plaintiff confirmed that there were various concrete slabs in the car park with other expansion joints: T160.3. Oral evidence of Melinda Baker 1. Oral evidence was given by the plaintiff's eldest daughter, Ms Melinda Baker, who stated that she was born in April 1969 and lived in Port Macquarie. Ms Baker said that she had four grown-up children who had left home with the last one leaving in October or November 2019. She said she was not employed at the time she gave evidence. 2. Ms Baker gave evidence that when the plaintiff returned home after the accident and her discharge from hospital, she became the plaintiff's carer for the next three to four months. She said she moved into the plaintiff's house to assist her: T163.31-.37. Ms Baker confirmed that she did everything for the plaintiff in this period including assisting her with showering, looking after the grandchildren residing in the plaintiff's house, cooking, cleaning and other duties: T164.3-.7. These duties included cleaning the bathroom, cleaning the floors, vacuuming, washing, preparing dinner and helping the children with their homework. When asked to assess the number of hours that this involved, Ms Baker said that she could not do this as every day was different: T164.37. In the end, when she was pressed, she said it was "all day": T164.41. Ms Baker said that she "never stopped": T165.1. 3. After the three to four month period, Ms Baker said she returned to her own house and came to her mother's residence if her mother needed her. When she came over she said she often did a "general clean which took all day or sometimes more than one day": T165.14; see also T166.43. On other occasions when she went to see the plaintiff, she assisted her which could have been "anywhere between an hour and three or four hours": T165.21. When asked whether the assistance she had described continued up until the present day, Ms Baker frankly stated that there was one time when she was sick and she could not assist. She also said she had moved to Mackay for six months to stay with her son and she did not see her mother from the commencement of the coronavirus pandemic: T165.44-166.17. However, Ms Baker confirmed that prior to the coronavirus pandemic in 2020, she had continued to do the "general clean" for her mother: T166.35-.46. 4. Ms Baker stated that when her mother first came out of hospital, the grand-daughter Magenta was there but had to be prompted to provide any help and wished to complete her tasks in the quickest time possible. Magenta assisted in relation to the dishwasher and hanging out the towels. This occurred for about one hour per day: T167.21. The plaintiff had assessed Magenta's post- accident help as being for two hours per day: T92.27. 5. In cross-examination, Ms Baker confirmed that she assisted her mother when needed and this included undertaking lawn mowing and gardening: T168.2-.6. Ms Baker confirmed that she did the lawn mowing for her mother before the accident and her mother paid her for doing it in the sum of about $50: T168.33-.37. Ms Baker also confirmed that she assisted her mother with the gardening duties before the accident: T169.18. This was contrary to the plaintiff's evidence. Ms Baker also confirmed that the plaintiff now had someone come in to do the mowing and the hedges: T169.22-.30. 6. Ms Baker stated that prior to the accident, the grandchild Magenta did some limited tasks around the house but did not like doing them. She said that she did not observe the various tasks that the other grandchildren did when she came to visit her mother before the accident. 7. Ms Baker was then asked questions about the period after she had moved back to her own house in about February 2018. Ms Baker denied that from about February 2018 onwards what she did on average was once a month undertake a thorough or deep clean of the house to help her mother and that the deep clean or thorough clean was for about two or three hours every month: T172.38-.45. Ms Baker denied being paid for this assistance but said that her mother would help her if she needed it: T173.5. Ms Baker then gave evidence that she was absent from Port Macquarie for various periods in 2018 and 2019. Her evidence was that she left Port Macquarie in about April 2018 at the time of her son's wedding and was absent for 12 weeks: T174.1. She then stated that after she left her job she stayed in Mackay with her son for six months in 2019: T174.2-.6. Ms Baker stated that when she came back from Mackay in 2019 after her six-month absence, she assisted the plaintiff on average with a "deep clean" once every month for three to four hours: T174.18. This was a lesser period than she had previously indicated. 8. Ms Baker's evidence is significant in relation to the claim for past and future attendant care services and the claim for past lawn mowing and gardening services. The plaintiff's medical evidence Reports of Dr Bodel 1. The plaintiff tendered a number of reports of Dr James Bodel, Orthopaedic Surgeon. 2. In his first report dated 11 September 2018 following an assessment on the same day, Dr Bodel reported the history provided by the plaintiff to him of the accident as follows: "She was walking through this area with her paling to seek advice about the other two palings when she inadvertently tripped off the edge of an unseen step in the concrete paving. She indicates that the edge of it was "broken" but not marked with yellow or white paint and she was unaware that the step was there. It was a single step down onto the next level but as she perceived it from afar, it appeared to be one level only. As her foot slipped off the edge of this unseen step she suffered a forced plantar flexion injury and inversion injury to the left foot and ankle. She then lost balance and fell forward." 1. Dr Bodel stated that the x-rays of the plaintiff's left foot and ankle revealed a bi-malleolar fracture involving the medial and lateral malleolus and a dislocation of the ankle. He recorded that the plaintiff underwent a closed reduction to reduce the dislocation of the ankle which was performed in the Accident and Emergency Centre of the local hospital and the next day there was an open reduction and internal fixation with two screws in the medial malleolus and a plate and six screws laterally, with one additional screw which did not pass through the plate. Dr Bodel recorded the plaintiff's stay in hospital and her post-accident medical treatment. At the time of the assessment the plaintiff's plate and screws in her ankle had not been removed. He recorded that the plaintiff stated she had no prior problems with her left foot or ankle but suffered from Type 2 diabetes. A previous neck injury had settled long ago. 2. The plaintiff complained of still having pain, stiffness and a limp associated with the ankle injury which meant that she could not wear enclosed shoes and had a sharp, stabbing pain in her ankle when she twisted the foot and ankle. She reported as always walking with a limp and needing to take pain medication. 3. Dr Bodel reported the plaintiff at that time as struggling with household maintenance and cleaning activities. 4. On examination, Dr Bodel noted a wasting in the left calf and a very restricted range of ankle dorsiflexion and plantar flexion. He also noted weakness in the ankle movement. Dr Bodel had access to a number of x-rays of the plaintiff's ankle. One x-ray dated 8 December 2017 showed the fractures in the plaintiff's ankle to be healing in a satisfactory position. This was confirmed in an x-ray dated 11 August 2018. 5. Dr Bodel expressed the opinion that the plaintiff suffered a fracture dislocation of her left foot and ankle in the accident on 25 October 2017. He regarded the plaintiff's treatment as appropriate. He expressed the opinion that the plaintiff was left with ongoing pain and stiffness and an altered walk pattern because of the injuries. He regarded the plaintiff's prognosis as guarded. He expressed the opinion that although the fractures were well aligned and were healing in a satisfactory position, there was an increased risk of post traumatic osteoarthritis which may complicate the plaintiff's long-term outcome. He recorded the plaintiff as having ongoing pain, stiffness and weakness in the region of the left ankle. Dr Bodel expressed the opinion that the plaintiff required ongoing physiotherapy and hydrotherapy on an as needs basis. He stated that at the time of his report there was no indication for any other interventional treatment other than having the plate and screws removed. 6. In his second report dated 25 November 2018, Dr Bodel stated that there was no significant sign of arthritic change of any significance although there was an increased risk of post-traumatic osteoarthritis which he regarded as minimal. He expressed the opinion that it was unlikely that any major surgical intervention would be required. However, he expressed the opinion that the plaintiff may require anti-inflammatory medication and some physiotherapy on an as needs basis. He regarded the likely cost of that being in the order of $500 per year indefinitely: Exhibit A page 8. 7. In his third report dated 3 April 2020, following an assessment on 6 January 2020, Dr Bodel considered the plaintiff's position following an MRI scan of the left ankle dated 3 September 2019. By this time, the plaintiff had arranged for the plate and screws in her ankle to be removed which occurred in November 2018. The plaintiff reported to Dr Bodel that the removal of the plate and screws did not make a great deal of difference to her condition. She stated that she continued self-directed home based exercises and did some hydrotherapy exercises. She reported as still having pain both medially and laterally in the region of the left ankle with the most trouble with inversion and eversion when walking on uneven ground or on the sand at the beach. At the time, the plaintiff was still taking pain relief. An x-ray following the removal of the screws and plate showed that the fractures were healed in a satisfactory position. 8. Dr Bodel expressed the opinion that the plaintiff was quite incapacitated for day-to-day activities because of her injury. The MRI scan which the plaintiff had, showed to Dr Bodel that there was now some mild secondary osteoarthritis with some bone bruising. He said that post-traumatic osteoarthritis was inevitable with the type of injury involved with the plaintiff's age group. He expressed the opinion that the plaintiff was left with ongoing pain and stiffness in the injury to the ankle with an increased risk of post-traumatic osteoarthritis which may make things worse over time. He noted that the plaintiff had to walk with her foot externally rotated to some degree. 9. In relation to the future, Dr Bodel expressed the opinion that the plaintiff would require some intermittent physiotherapy on an as needs basis with a need to see her general practitioner every three months to monitor her progress. However, he expressed the opinion that there was no indication clinically for any other interventional treatment and particularly no definite need for surgery (Exhibit A page 14). 10. In his fourth report dated 9 April 2020, Dr Bodel emphasised the importance of the MRI scan dated 3 September 2019 as showing mild secondary osteoarthritis being post-traumatic osteoarthritis. He expressed the view that the natural history of osteoarthritic change was for progression over time with the rate of progression being difficult to predict. He regarded the development of osteoarthritis in the left ankle of the plaintiff as being due to the accident. He said that the osteoarthritic change was "slowly progressing" (Exhibit A page 17). Report of Mr Anning 1. The plaintiff tendered a report of Mr G Anning, consultant psychologist, dated 16 November 2018. 2. Mr Anning recorded the history of the accident provided to him by the plaintiff as follows: "Ms Baker reported that she stepped down a gutter which had been chipped away she believes by trucks going over it. She also reported that it was not marked with any yellow paint. She informed that part of her foot went down at an angle and then snapped to the side resulting in her dislocating her heel and fracturing two bones in her foot" (Exhibit A page 20). 1. In his mental state examination, Mr Anning stated that the plaintiff impressed as being quite resilient without exhibiting any agitation or distress. The plaintiff recorded her limitations in domestic activities as being unable to do some household tasks, particularly vacuuming and making beds, and she was unable to mow her lawns or go up a ladder. She described herself as having "good and bad days". The plaintiff said her injury was still very painful at the time of assessment and that the pain disturbed her sleep. 2. Mr Anning expressed the opinion that the plaintiff's clinical presentation and reported psychological symptoms were not sufficient enough to qualify for a psychological diagnosis. However, he expressed the opinion that the plaintiff suffered some psychological symptoms that were secondary to pain and disability and that it was possible that the plaintiff may obtain a diagnosis of adjustment disorder if she was assessed at another time. He described the plaintiff as having a "mild incapacity" in relation to her psychological symptoms (Exhibit A page 28). Reports of Dr Porteous 1. The plaintiff tendered a number of reports of Dr Andrew Porteous, occupational physician. 2. In his first report dated 11 September 2018, following a consultation on the same day, Dr Porteous recorded the accident as follows as reported to him by the plaintiff: "Ms Baker was walking through the entrance in the timber area in Bunnings in Port Macquarie when she tripped on some uneven ground and fell forward resulting in significant left ankle pain" (Exhibit A page 30). 1. Dr Porteous recorded that the plaintiff told him that for almost three months after the accident her daughter came and stayed to help with looking after the three foster grandchildren and was doing everything for the plaintiff including helping her with self-care and domestic care for three to four hours a day. The plaintiff stated that she then started progressing to being independent and now had help from her foster grandchildren and also paid a gardener and a lawnmower person. 2. The plaintiff reported almost constant moderate to significant pain with the left ankle restricting activities. She had a constant limp on the left side from her ankle. Sharp pain in the ankle was reported. On examination, the plaintiff had significant restricted left ankle range of motion and was walking with a limp favouring the left ankle but without a walking stick. 3. Dr Porteous diagnosed a soft tissue musculoligamentous sprain of the left ankle with a fracture dislocation and then open reduction internal fixation with ongoing considerable pain and restriction. He expressed the opinion that the plaintiff was restricted to occasional walking and standing and was restricted from walking on rough or uneven ground or from moderate or heavy lifting, pushing, pulling or carrying. 4. On page 5 of his report (Exhibit A page 33), Dr Porteous recommends a range of future treatment and pain relief needs. He expresses the opinion that the plaintiff was likely to require an arthroscopy or other surgery including eventually possibly a joint replacement or fusion either initially or at a later date. No such opinion was expressed by Dr Bodel in the reports in evidence. Dr Porteous expressed the opinion that the plaintiff would reasonably require future professional domestic and home care support for activities that she was restricted from and which would aggravate the injury symptoms, if she did not have gratuitous support (Exhibit A page 34). 5. In his second report dated 9 November 2019, Dr Porteous noted that the plaintiff had the plate and screws in her ankle removed on 20 November 2018 which was followed up with physiotherapy with a Mr Tisdell, a sports physiotherapist. The plaintiff said she had been completing exercises given to her by him. The plaintiff noted that she had been given orthotics which she said were assisting her considerably. She continued to report significant ongoing left ankle pain from her injuries. She attended walking with a walking stick and limping on the left ankle. She noted that she continued to be a foster grandmother for two grandchildren but one had moved out. 6. Dr Porteous examined the MRI scan and expressed the opinion that it was consistent with ligament strains with some ongoing joint inflammation with synovitis consistent with ongoing symptoms. 7. On page 6 of his report (Exhibit A page 40), Dr Porteous repeated his recommendations for future treatment including an occupational therapist assessment. He recommended the plaintiff continuing to have orthotics long-term. 8. In relation to domestic activities, he noted that the plaintiff could undertake self-care and was able to do most domestic activities, although she obtained assistance from one of her grandchildren with vacuuming. She still continued to have lawn mowing and garden assistance. Dr Porteous expressed the opinion that the plaintiff's current restrictions would result in some domestic work which the plaintiff could not do without aggravating her conditions and therefore he was of the view that she would reasonably require professional domestic and home care support for activities in the future if she did not have gratuitous support. A guarded prognosis was given. 9. In his third report dated 23 April 2020, similar views were expressed as in earlier reports. Dr Porteous was of the view that the plaintiff's condition had stabilised. He referred to and commented on a report of Ms Skibby, an occupational therapist. A limiting order was made under s 136 of the Evidence Act 1995 (NSW) such that the opinion part of Dr Porteous' third report was limited to expressing agreement with Ms Skibby's recommendations as to treatment and gratuitous assistance. Report of Ms Skibby 1. The plaintiff tendered, as part of Exhibit A, a detailed and lengthy report of Ms Erika Skibby, occupational therapist, dated 12 January 2020. This followed an assessment at the plaintiff's residence on 21 November 2019. 2. In her report, Ms Skibby records the plaintiff's description of the accident as follows: "She said she was walking towards the timber yard and said she did not notice the concrete slab on which she was walking had deteriorated. She said, "My foot went over the edge and next thing I was on my face … I don't think I have ever felt that kind of pain" (Exhibit A page 50). 1. In her executive summary which commences at Exhibit A page 50, Ms Skibby sets out a summary of the limitations and problems of the plaintiff. She recorded the plaintiff as stating that her main ongoing issues were pain and reduced mobility with ongoing significant functional limitations associated with loss of movement and pain affecting the left ankle. At page 6 of her report, Ms Skibby recorded the considerable amount of gratuitous care provided by the plaintiff's daughter, following the injury. Ms Skibby expressed the opinion that the plaintiff had an ongoing requirement for assistance with domestic tasks and home and yard maintenance tasks. 2. A summary of recommendations and costs by Ms Skibby for past and future care and treatment including for recommended equipment is set out in paragraph 1.4 at pages 7-10 of her report (Exhibit A pages 53-56). 3. This summary should be contrasted with the opinion of the defendant's retained occupational therapist Ms Hammond. The current and future care costs and recommendations, particularly in relation to the need for domestic care, are to some degree inconsistent with the plaintiff's oral evidence in relation to her current capacities and the assistance which she obtains from her adult daughter and grandchild. In paragraph 1.4.4 of Ms Skibby's report rehabilitation equipment costs and adaptive technology recommendations are set out. A bathroom modification is recommended. However, the report of Ms Hammond states that the plaintiff has a second shower which she used soon after her injury. There is no reason apparent why the plaintiff could not continue to use this shower when needed in the future. 4. Ms Skibby's report includes a number of photographs of the plaintiff's house including of the main bathroom. There are also photographs included of the plaintiff's left foot and ankle including of the scars as a result of the operations. At paragraph 7.3.3 recommendations are set out in relation to podiatry treatment and the replacement of orthotic devices and footwear. Joint opinion 1. At page 104 of Exhibit A is a transcript of a teleconference between Ms Skibby and Ms Deborah Hammond, the occupational therapist retained on behalf of the defendant. 2. The result of the telephone conference was as follows: 1. Recommendation to purchase a beach wheelchair: in her report Ms Skibby recommended the provision of a beach wheelchair to the plaintiff to enable the plaintiff to cross soft sand. Following discussion between the experts in the conclave, the occupational therapists accepted that the purchase of a beach wheelchair was not necessary; 2. Orthotics and shoes: both experts agreed with the medical opinion of the defendant's expert, Dr Powell. Both occupational therapists appeared to accept Ms Skibby's recommendations in the light of the opinion of Dr Powell of the need for orthotics and footwear recommended and supplied by a podiatrist. Ms Skibby recommended annual replacement of orthotics and footwear. Ms Hammond deferred to medical opinion and podiatry opinion as to the frequency of replacement of orthotics; 3. Bathroom modification: Ms Skibby stood by her recommendations for the need for bathroom modifications to the plaintiff's main bathroom. This was put on the basis that the plaintiff's present bathroom presented a higher risk of falls due to her injury related limitations. Ms Hammond did not agree that any bathroom modification was necessary and that the plaintiff was able to transfer in and out of the shower over the bath. Ms Hammond noted that there could be minor modifications to the current bathroom to install a vertical grab rail on the bathroom wall. An allowance of $700 was given for this amendment; 4. Dietician: Ms Skibby recommended that the plaintiff would benefit from a dietician. Ms Hammond disagreed and noted that the plaintiff was previously seeing a dietician as part of diabetes management and it was reasonable for the dietician to address weight management in this consultation. In my view, there is considerable force in Ms Hammond's comments. Any advice could be seen as part of the plaintiff's previous dietician assistance. I consider this issue further below; 5. Podiatrist: Ms Skibby expressed the opinion that the plaintiff would require ongoing podiatry reviews to assess and fabricate orthotics. Ms Hammond deferred to the podiatrist but noted the plaintiff was seeing a podiatrist prior to the accident as part of her diabetes management; 6. Pool membership: Ms Skibby recommended that the plaintiff have a pool membership because of the assistance of non-weight bearing pool based exercise. Ms Hammond agreed with this recommendation. 1. Otherwise, both occupational therapist experts stood by the recommendations in their written reports. Plaintiff's liability expert 1. The plaintiff tendered a report of Mr John Dimopoulos, an engineer with experience in occupational health and safety matters and particular extensive experience in the investigation of trips, slips and falls. His report was dated 28 February 2019. In paragraph 4 of his report, Mr Dimopoulos sets out assumed facts which he states were provided by the plaintiff at interview. Paragraphs 4.8 to 4.10 of his report (Exhibit A page 115) are as follows: "4.8 As she descended off the traffic island, she placed her left foot on the kerb (which she later realised was damaged), in preparation to step down, but her left foot gave way causing her to fall. 4.9 Thus, she suffered the injuries which form the basis of this claim. 4.10 Ms Baker said that she realised there was a kerb present however she was not expecting that the surface was damaged and uneven." 1. These details are to some degree inconsistent with the plaintiff's oral evidence particularly that she realised there was a kerb present to exit the raised concrete area. This must be taken into account in considering the report. 2. Mr Dimopoulos sets out the Bunnings Incident Report printed 5 March 2018 in relation to the accident. This included the following: "Weather was dry. There is some wear on the edge of the island where the fall occurred however we believe this sloping design was purposely built this way as it is the same as other islands located at the store." 3. Mr Dimopoulos noted that he travelled to Port Macquarie to make an inspection of the site and took measurements and photographs. A number of photographs are included in his report (see Exhibit A pages 117-122). The altered height of the kerb which Mr Dimopoulos describes as being "significant damage" is shown in photographs in Exhibit A pages 120-122. It is unclear as to the relevance of the alleged damaged part of the kerb where the plaintiff's evidence is that she simply did not see that the raised area finished and there was a drop from the kerb closer to the entrance to the timber part of Bunnings. Photographs at pages 119-121 of Mr Dimopoulos' report show a dark line which appears to be an expansion joint delineating the concrete part of the raised concrete area and the kerb part. 4. After setting out the Standards and guidance material in his report, Mr Dimopoulos includes some discussion about the method by which people look at the area in front of them as they walk in paragraphs 6.5-6.7. A diagram showing the basic visual data of a person is shown at page 125 of Exhibit A. 5. In paragraph 7.2 of his report in the discussion and analysis section, Mr Dimopoulos notes that the assumed facts describe a scenario in which the plaintiff was entering a Bunnings store via the trade entrance "when she stepped onto a damaged and uneven section of the kerb causing her to misstep and fall. She did not see in advance that she was about to place her foot across an uneven surface". This is somewhat inconsistent with the plaintiff's oral evidence when she stated that she did not see that the raised concrete area had an exit kerb. Mr Dimopoulos' report seems to place emphasis on the "missing" part of the concrete where he expresses the opinion it was damaged: paragraph 7.4. He states: "The defect observed to the leading edge of the kerb is significant enough, in my opinion, to cause an interruption to one's gait in the manner described. The ability of Ms Baker to see the missing section of the kerb would have been limited, as the broken section does not provide a helpful contrast to the surrounding area": paragraph 7.4-7.5. 1. He recommended that hazards such as the broken and missing section of the kerb should be identified prior to reaching them as a person does not usually looked down at their feet when walking. At paragraph 7.8, Mr Dimopoulos expresses the opinion that the plaintiff would have had difficulty in seeing and identifying the damage to the kerb unless she was looking down at her feet just before she stepped onto it, which he regarded as being unusual for someone just about to step onto a road: paragraph 7.8. 2. In paragraph 7.3, Mr Dimopoulos expresses the opinion that Ms Baker was placed at risk of injury by the defendant in the circumstances. He states that a pedestrian hazard was created by the damaged kerb in an area where pedestrians would be expected to go, with insufficient means of warning. Measures which the defendant could have taken to prevent exposing the plaintiff to a risk of injury are set out in paragraph 7.4 which include carrying out a risk audit and repairing the kerb or barricading it off or by providing a person in the position of the plaintiff with a warning or advice about the "parlous" state of the kerb. Photographs 1. At pages 131 to 155 of Exhibit A are a number of photographs some of which the plaintiff stated were taken by one of her daughters. In relation to the photograph at Exhibit A page 131, the plaintiff stated that the pallet of goods to the left and the sign were not present on the day of the accident but the caged area with the gas bottles to the right of the photograph were present. The raised concrete area is clearly shown in the photographs. Darker lines apparent on the photographs show the expansion joints of the kerb on each side of the raised concrete area. The photograph at page 133 of Exhibit A shows the normal direction in which the plaintiff would usually go to leave the pedestrian entrance to the timber area of the Bunnings store. The photograph at page 138 of Exhibit A shows the altered area of the exit kerb of the raised concrete area closer to the pedestrian entrance to the timber section. This is also shown in other photographs. A closer look at the area of the kerb which is altered is shown in the photograph at page 148 of Exhibit A. The darker line which is an expansion joint near the kerb closer to the timber entrance is clearly apparent in the photograph at page 148. Caution, however, must be exercised in assessing photographs, "particularly as to perspective and distance": Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [54]. Evidence for the defendant 1. The defendant tendered a number of reports and medical records which became Exhibit 1 in the proceedings. It also called four witnesses to give evidence on its behalf. Oral evidence for the defendant Evidence of Matthew Hines 1. Oral evidence was given on behalf of the defendant by Mr Matthew Hines who was an employee of the defendant. Mr Hines stated that he was employed at the Port Macquarie store of Bunnings, having commenced there in 2012. He stated that in 2019 the Bunnings store in Port Macquarie moved from the Lake Road store where the accident, the subject of the proceedings, occurred. Mr Hines stated that he worked at the Lake Road store for seven years. In that period, he worked in various areas and positions for the defendant, including the building/timber yard near where the accident occurred. Mr Hines stated that he commenced working in the building/timber yard in 2016 and stopped working there when the store closed in February 2019, when the defendant moved to a larger store at Port Macquarie. Mr Hines said that whilst working in the building/timber yard between 2016 and 2019 he had a supervisory role which included assisting customers, rotating stock and assisting Bunnings team members. 2. Mr Hines gave evidence that he commenced work at the Lake Road Bunnings store of the defendant at 6am on the day of the accident in the building/timber yard. This was the normal start time for the yard. He recalled that an incident occurred at around 10am at the front of the timber yard. At the time of the accident, he was facing into the warehouse with his back towards the front gate to the timber yard. 3. Mr Hines said he heard a "large thud" behind his left shoulder and turned around to the left to see what it was. He noticed outside the gates a customer on the ground at the front of the store. Mr Hines said that he saw the customer approximately in line with the front wheel and driver's side door of the vehicle depicted to the right in the first photograph behind guide card D2.1 in Exhibit 1 being the photograph behind the Incident Investigation Report: T185.30-.34; T186.11. The person he saw was also approximately in line with the pallet indicated on the left of the photo. He described the customer as being on the road adjacent to the kerb and she was lying down: T186.16-.33. He could not recall how close she was to the kerb: T186.30. Mr Hines said it was a sunny day and bright. He said the plaintiff was lying in the sun when he first saw her: T187.2. In cross-examination, Mr Hines later said that he could not recall whether the island was in the shade or in the sun when he first saw the plaintiff. Mr Hines stated that he was within four to five metres of her; T187.10. He heard the plaintiff emit a scream of pain. Mr Hines confirmed, contrary to the plaintiff's evidence, that at the time he attended the plaintiff the pallet of pool salt indicated in the left of the photograph was there as was the cage with gas bottles. Mr Hines could not recall any other stock being placed on the island at this time. As far as he could recall, the photograph immediately behind the Incident Report gave a good representation of the island when he attended the plaintiff in terms of the stock on it: T188.12. He confirmed that the photograph at page 131 of Exhibit A showed the same island as in the photo immediately behind the Bunnings Incident Report. 4. Mr Hines gave evidence that when he commenced at the Lake Road Port Macquarie store the presentation of the island was the same as that shown in the various photographs in Exhibit A: T189.39. 5. Mr Hines said that he had seen customers whilst working at Bunnings coming by foot to the timber section. The routes used included crossing the island towards the entrance or coming up the roadway and walking adjacent to the right of the island as facing the timber yard entrance. He confirmed the plaintiff's evidence that access to the timber yard for pedestrians was between the mesh gate and the boom gate. The former method involved a customer stepping from the disabled carpark up onto the island, walking across the island and then stepping off the island to the entrance. 6. Mr Hines said he approached the plaintiff and offered her assistance. A team member went to get some ice packs for the plaintiff and the plaintiff manoeuvred herself to a seated position leaning against the pool salt goods to the left of the photograph in Exhibit 1 Part D2.1. Mr Hines said that he contacted Ms Charlie Inskip, a Co-Ordinator Senior Leader at Bunnings, to inform her of the accident. He then contacted an ambulance as he noticed the plaintiff's ankle was swollen and treatment was needed. He said he took brief notes relating to the incident at this time as he knew there would be a need to prepare an incident report. Ms Inskip arrived at the location prior to the ambulance arriving. Sometime later, Mr Peter Ragno, the Acting Complex Manager, arrived at the scene. After the ambulance left, Ms Inskip, Mr Ragno and Mr Hines went to the manager's office and commenced the process of completing the Incident Report. Mr Hines said Ms Inskip logged into the computer system and asked him what he recalled of the incident. He said he gave Mr Ragno and Ms Inskip the information he had recorded in his notes. In relation to the third page of the Incident Report at Part D2.1 of Exhibit 1, Mr Hines said that the description in the first five sentences was included by him: "Immediate area check to make sure there were no trip or slip hazards. There was a cage of gas bottles on the island but not close enough to the incident to create an obstruction. Pallet of salt was not on the island. Some cars were parked in allocated parking spots as usual. Weather was dry". 1. Mr Hines gave evidence that at the relevant time the Lake Road Bunnings store was open seven days a week with the main gates of the timber yard entrance being open from 6:30am to 5pm seven days a week. 2. Mr Hines said that in the period that he was working in the timber yard from 2016 to 2019 he witnessed customers walking over the island at a frequency of about 6 to 10 persons per hour: T195.44. These witnesses came generally in the direction of the red arrow shown in photo five on page 119 of Exhibit A, but the pathway varied between the gas cage to the main gate. He said he had seen witnesses crossing in sunlight, shade and in rain. Mr Hines importantly confirmed that he had not seen any other customer fall whilst crossing the island. He also said that he had not read any incident reports relating to a customer falling whilst crossing the island in question: T196.34-T197.1. Mr Hines said that when he crossed the island he had to step up from the car park onto the island and then step off it. He said while stepping off the island he perceived a difference in height between the island and the area near the car park which he found easy to see: T198.2. 3. In cross-examination, Mr Hines confirmed that by 2016 he had reached a supervisory role at Bunnings but it was not a senior role. He confirmed that he had an occupational health and safety role in 2016 including to employees, customers and visitors. Mr Hines said that he was very familiar with the setup of the area including the entrance to the timber yard and was aware in early 2016 that there was a raised traffic island near the entrance. He became aware that there was a height differential between the surface and the raised island and that there was a cutaway area at the kerb. Mr Hines confirmed that product was placed on the raised island from time to time and this included wheelbarrows, cement mixers and pallets of product. He agreed that the cutaway kerb on the island facilitated the placement of stock on the raised area of the island by creating a small ramp. He agreed that the cutaway kerb had a purpose for Bunnings to put stock on the island. Following further cross-examination, Mr Hines stated that while he recalled it was a bright sunny day on the day of the accident he had no recollection of the state of shading on the island at the time he first saw the plaintiff. 4. Mr Hines importantly confirmed that at the time there was a practice for supervisors such as him to be made aware of any other falls in the timber section of Bunnings: T204.3. 5. Mr Hines confirmed that at the main entrance to Bunnings there was paint on the kerbs (see Exhibit A page 138). Mr Hines stated that in his supervisory role in relation to occupational health and safety matters he had authority to raise with his superiors the issue of the need for the application of high visibility paint in a pedestrian access area. Evidence of Charlie Inskip 1. Oral evidence was given to the court by Ms Charlie Inskip who held the position of Acting Operations Manager at the Bunnings Port Macquarie store. Ms Inskip gave evidence that she had been employed by Bunnings since 2008. She commenced at the Bunnings Lake Road store and worked there from 2008 until the store shut in February 2019. Ms Inskip said that she worked in various roles in various positions at Bunnings including working in the building department (another apparent name for the timber yard or area) for between 10 and 12 months in 2010-2011. She also gave evidence that she worked in the building department on occasions when she was based in other areas of the Bunnings store. 2. Ms Inskip was taken to the photograph appearing immediately behind the Incident Investigation Report behind tab D2.1 in Exhibit 1. Ms Inskip stated that she took the photograph depicted and was involved in the preparation of the Incident Report: T207.48. This is contrary to later evidence given by Mr Ragno who claims to have taken the photograph. 3. Ms Inskip stated that on the day of the accident, 25 October 2017, she was cooking a barbecue lunch for team members at the Bunnings Port Macquarie store. She said that she arrived at work at 6am and commenced her duties at the barbecue between 8 and 9am. At the time, she said the weather was sunny. She said she received a telephone call from Matthew Hines who informed her that a customer had fallen out the front of the builders' timber yard entry/exit. Ms Inskip said that she proceeded to the area which was about 20m away from the barbecue. She stated that when she arrived the customer was seated on the edge of the concrete island with her legs stretched out in front of her. This is different to the evidence of Mr Hines. Ms Inskip confirmed that the concrete island in question was that depicted in the photographs at Exhibit A page 131 and following. She said she had not noticed any changes to the island since she had commenced working at Bunnings in 2008: T210.34. Ms Inskip stated that when she arrived at the scene the presentation of the island was the same as that depicted in the photograph behind the Incident Report in part D2.1 of Exhibit 1: T211.28. When she arrived the customer was located halfway between the edge of the pallet to the left and the kerb to the right of the photo: T211.30-.39. 4. After having a conversation with Mr Hines in relation to the accident, Ms Inskip said that she contacted Mr Peter Ragno, the Acting Complex Manager, to request him to come to the incident scene. Ms Inskip said that she did not recall whether the island in question was shaded at the time she arrived or the lighting level at the island. After Mr Ragno arrived at the scene, Ms Inskip returned to her duties at the barbecue. She received a call from Mr Ragno to attend the complex manager's office to complete an Incident Investigation Report. She attended the office, signed onto the computer as Mr Ragno could not access it and a software generated report was created. The pro forma report referred to the attachment of photographs so she returned to the scene and took photographs which included the photograph behind the Incident Investigation Report in Exhibit 1 (T218.19) and the three photographs marked D2.1.1-D2.1.3 in Exhibit 1. She stated that the photographs were taken on the day of the accident between 11 and 12 noon. Ms Inskip stated that the photograph at D2.1.3 was a photograph of the adjacent island on the other side of the entrance to the builders' yard: T219.23. This depicted the minimal height of the kerb where the kerb was closer to the front of the Bunnings building. The kerb increased in height as it approached the front of the island: T221.2. Ms Inskip stated that the tapering down of the kerb was the same on both islands and appeared to be part of the construction of the island: T221.20-.28. She then emailed the photographs to the computer to attach to the Incident Investigation Report. Mr Ragno in due course completed the report. Ms Inskip gave evidence that the "Incident Description" in the report was prepared by Mr Ragno. 5. Ms Inskip gave evidence that when she worked in the Lake Road timber yard between 2010 and 2011 she observed patrons entering the timber yard both by vehicle and by foot. On foot patrons would either cross the island from behind the gas cage and walk off the island and enter the pedestrian entry/exit or enter at both the entry and exit gates for vehicles on the driveway. When asked in relation to the frequency of persons walking across the island per hour, Ms Inskip said that "easily" 30 persons per hour crossed the island to the entry from her observations whilst working in the timber yard: T225.47. She stated that she saw persons walking across the island to access Bunnings in sunlight, shade and in rain and in all the times that she observed persons walking across the island to gain access to the timber yard entrance she had never seen anyone trip or fall while stepping off the island: T226.42. The accident involving the plaintiff was the first accident she was aware of: T226.46. When she was working in other areas she walked past the island on multiple occasions in a day. In doing so, she walked across the island from left to right and, after accessing the island, stepped off it: T227.21. 6. Ms Inskip said that when she first walked across the island and reached the end of it she saw that the kerb was "quite visible" and that the "groove" in the edging of the kerb stood out: T227.40. She also stated that her perception of the height differential between the island and the roadway was that it was very visible as to the differential which to her could be seen easily: T228.3-.17. In cross-examination, Ms Inskip conceded that she had no actual recollection of what she perceived on the first occasion she crossed the island. She confirmed that she had not seen anyone fall on the island or been involved in or aware of any other fall from the island: T228.19-T229.26. Ms Inskip also stated that she had never been advised by any superior in relation to any occupational health and safety matter of any other customer falling on or off the subject island. 7. In cross-examination, Ms Inskip confirmed that the only designated pedestrian access to the builders' yard was near the boom gate: T230.7. The other access used by pedestrians was a shared area where pedestrians and vehicles entered the yard. Ms Inskip also confirmed that the photograph at D2.1.3 in Exhibit 1 showed the corresponding raised island on the other side of the vehicle entry/exit at the timber yard. 8. Ms Inskip confirmed that the photographs behind the Bunnings Incident Investigation Report in Exhibit 1 were taken by her between 11am and 12 noon. She stated that when she first arrived at the accident location, the plaintiff was sitting up and she did not see where she had landed: T231.27. It was put to Ms Inskip that the produce on the pallet shown in the photograph after the Incident Report may have been moved into the area after the accident occurred. Whilst Ms Inskip accepted that possibility, her evidence was that generally goods were moved to the front of the yard at the beginning of the day and moved back into the yard at the end of the day: T232.15. Ms Inskip also gave evidence that Bunnings "always" had a pallet of salt out the front of the timber yard but it was placed in different positions at different times depending where it gets positioned in the morning: T232.27-.39. 9. Ms Inskip confirmed that the pedestrian entry area next to the boom gate was in place when she started at Bunnings in 2008. Although pedestrians also entered via the vehicle entrance which was discouraged, Ms Inskip said she had no other concerns about pedestrians entering the area other than it was where vehicles exited: T234.21-.49. 10. Ms Inskip stated that her understanding as to why the kerb had been angled in the area of the island was to make it "smoother and safer" for Bunnings to use a pallet jack to put stock on the island and take it off the island: T235.3. The same understanding was as to the angled kerb on the other island near the vehicle entrance to the timber yard: T235.28. 11. Ms Inskip gave evidence that since 2008 it is likely that she walked over the raised section of the island hundreds of times where the plaintiff fell: T237.27. Ms Inskip confirmed that she had no recollection of the first time that she walked over it: T237.36. Evidence of Mr Jacob Andriessen 1. Oral evidence was given by Mr Jacob Andriessen. Mr Andriessen is employed by the defendant as the Complex Manager at its West Gosford store. Mr Andriessen gave evidence that he had worked at Bunnings for the last nine and a half years. Mr Andriessen stated that he commenced as Operations Manager at the Lake Road Port Macquarie Bunnings in early December 2015. He remained in that position for about 18 months until he was promoted in mid-2017 to be the Complex Manager of the Lake Road Port Macquarie store. In mid-2018 he commenced work in planning for the new Bunnings Port Macquarie store which is currently located in John Oxley Drive in Port Macquarie. This store opened on 4 March 2019 with the Lake Road store ceasing trading on 3 March 2019. Mr Andriessen said that he understood that the Lake Road store opened in 2003 but he was unaware whether Bunnings were responsible for the construction of the buildings and car park at the location or whether they were present when the store opened in 2003. 2. Mr Andriessen was taken to the photograph which was behind the Incident Report at D2.1 of Exhibit 1. He said he recognised the photo as showing the island at the Lake Road Bunnings store near the exit to the timber yard where the boom gate is indicated. Mr Andriessen was then taken to the photographs at pages 131 to 132 of Exhibit A and confirmed that this was a presentation of the kerbing of the concrete island when he was Complex Manager at the Lake Road store and it did not change at all in the time he worked there. Importantly, Mr Andriessen gave evidence that the roadway increased in its gradient as it went into the timber yard exit with the result that the level of the car park was lower than the floor height of the timber yard. The consequence of this was that the vertical face of the concrete island furthest away from the timber yard was greater than the face of the kerb closest to the timber yard building. He stated there was also a ramp from the roadway onto the concrete island which commences at about 1m to 1.5m from the timber yard building. 3. Mr Andriessen described his understanding of the purposes of the ramp on the kerbing of the island in the following evidence: "Q. Can you assist his Honour in terms of why the kerbing was constructed or formed with a ramp? A. It served three purposes. Q. Well, let's break those three purposes down. If you tell his Honour and take your time. A. The first thing, the roadway, given that it increases in height, if there were not a ramp there the sheer vertical face of the kerbing would be extremely minimal. Q. At which point? A. At the point closest to the building. Q. And what flows from that, if anything? By having the kerbing at a vertical-- A. If the-- Q. Vertical height? A. If the kerbing was a vertical minimal height it would be difficult to see from the eye as walking and would cause a trip hazard. Q. So in terms of that risk, can you explain to the Court what flows from the ramp being formed? A. The ramp being formed significantly decreases that risk, as if someone were to stand on it, it would be a ramp, not a sheer face. Q. And you mentioned three things, so that's one. A. The second being if things needed to be wheeled up and down that small ramp, being displays or even trolleys, anything of - wheeled, essentially. Q. So sort of just what's the relevance in terms of trolleys being wheeled and the ramp? A. If there were a car parked in the disabled park and they were taking their trolley, they could go up the ramp and have their trolley on the subject island to load their goods into the car. Q. So you are saying that the ramp has a use in terms of enabling trolleyed ‑ items to be trolleyed up-- A. Yes. Q. --on wheels? A. Yes. Q. And there was a - I think you mentioned a third? A. The third being pedestrian access. Q. So just explain that pedestrian access? A. As previously mentioned, the large gate is approximately a metre and a half - there's a metre and a half gap to the boom gate tower. If customers were to walk through this entrance they could use that ramp to go in between those areas into the building." (T252.50-253.39). 1. It is unclear what the basis was of Mr Andriessen's understanding in relation to these three purposes. He was not present in 2003 when the store opened so the evidence must be as to his conclusions drawn from his observations of the subject island. 2. Mr Andriessen said that while working at the Lake Road store he had seen customers using the island and exiting via the ramp and stepping down from the island. He also stated that he had seen customers use the whole width of the island to cross it during his employment at the Lake Road store. Whilst working at the Lake Road store, he estimated that he observed customers crossing the island at the frequency of about 10 to 15 customers per hour: T254.37. He did not see any customers having any difficulty using the island (T254.45) and did not observe any customers falling when stepping off the island: T255.1. Mr Andriessen said that the person responsible for occupational health and safety matters at a Bunnings store is the Complex Manager. Thus he had this responsibility when he was the Complex Manager at the Lake Road store. 3. Mr Andriessen was taken to photographs of the main entrance to the Bunnings store at Lake Road which indicated that part of the kerb of the entrance had been painted yellow. He said this was already painted yellow when he took over the position as Complex Manager. The main entrance also had the kerbing painted yellow when he became the Operations Manager in December 2015. Mr Andriessen said that at no time after becoming Complex Manager did he consider painting the kerbs on the island near the timber yard exit. He was not aware of any customer having fallen on or off the relevant island other than the plaintiff. He also confirmed that if there had been a fall in relation to the island he would have been made aware of the incident as Complex Manager: T256.42-T257.4. 4. Mr Andriessen said that he was on annual leave for two weeks from his position at the Lake Road store on 25 October 2017. The Operations Manager at the Bunnings Taree store, Mr Peter Ragno, was acting in his role during his absence. Mr Ragno made Mr Andriessen aware of the accident involving the plaintiff on his first day back at the Lake Road store when he updated him on what had occurred during his absence. Mr Andriessen said that he then read through the Incident Report appearing at D2.1 of Exhibit 1. 5. Mr Andriessen gave evidence that he undertook his own observations of the island and of customers walking up to and over the island. This involved him walking over the island and stepping off it himself. Mr Andriessen stated that in undertaking these activities he was of the view that the gutter was obvious: T258.30. His observations of customers included of customers walking across the island to gain entry to the timber yard through the vehicle timber yard exit. He saw no customers falling or having any difficulty in relation to the island: T258.42-.46. Mr Andriessen said that after the incident he gave consideration as to whether the kerbing on the subject island should be painted yellow. Having undertaken his own observations and observations of customers in relation to the island and taking into account the frequency of access compared to the incidence of falling he formed the view that it was not necessary to paint the kerbing on the island: T259.11. 6. Mr Andriessen gave evidence that during his period working at the Bunnings Lake Road store approximately 18,000 persons accessed the store per week with about 35% accessing the timber yard with some persons being in vehicles and some having pedestrian access: T259.18-.47. 7. In cross-examination, Mr Andriessen confirmed his role as Complex Manager included issues relating to the safety of the site which itself included the safety of customers and staff. Upon his return from annual leave, Mr Ragno had informed him of the incident involving the plaintiff. He could not recall whether Mr Ragno had stated that the accident involved the customer "tripping". He recalled being told that the customer had fallen but he could not recall whether he was told it was a slip, trip or fall. 8. Mr Andriessen confirmed that he went to inspect the area in the light of the knowledge that someone had fallen at the concrete island. Mr Andriessen said that he had assessed the kerb as being obvious. He had come to this conclusion using his observations of the island since starting at Bunnings, his observations of the area, and his observations of the number of customers which were using the island compared to those who had fallen near it. His observations included walking across the island: T263.29. Mr Andriessen said that he was aware that the roadway "ramp" had inclined upwards towards the building with the result that the kerb closest to the timber yard exit had lessened in height as it approached the building. He stated from his observations that the face of the kerb was vertical near the disabled car spot, near the gas cage and on the kerb closest to the timber yard exit until it arrived at the ramp constructed on the kerb. Having observed other ramps on islands he was of the view that all the ramps on-site were conventional: T264.23. 9. Mr Andriessen was asked questions about the yellow painting on the kerb at the main entrance to the Bunnings Lake Road store. Mr Andriessen rejected the suggestion that the kerb and gutter including the ramp should have been painted yellow of the subject island. He was of the view from his observations that the kerb and the ramp were sufficiently clear to indicate the height change. Mr Andriessen accepted that his view was that the placement of the ramp was necessary as a very small height differential on the island of the kerb could be a trip hazard. This was because it made the height differential less obvious: T266.23. He agreed that from the expansion joint indicated on the island kerb closest to the timber yard exit, the angle of the kerb altered progressively as it approached the Bunnings building. However, he was of the view that there was still a vertical face to the kerb but it became progressively smaller until it reached the ramp. He rejected the suggestion that the reduced height differential in the kerb created a tripping hazard. He regarded the change in height from his observations to be obvious which mitigated any risk of a tripping hazard: T268.40. In his view from his observations, the differential in height was obvious. 10. Mr Andriessen accepted that when he was observing the island to assess the obviousness of the differential in height that he was alert to the fact that a fall had occurred at the island involving the plaintiff. In assessing that the height differential was obvious, Mr Andriessen said that he was aware of the significant pedestrian traffic using the entrance to the timber yard. He stated that he walked over the island during the inspection in both directions to assess the obviousness of the differential in height in the kerb. He said he knew there was a kerb present there because it was obvious to him. He was of the view that the kerb would have been obvious even if he was not aware of the incident involving the plaintiff. He also observed other customers walking across the island. He said he observed the area for about an hour and saw about 10 to 20 customers crossing the island: T270.24. He did not recall whether he saw any staff crossing the island or whether the customers were going in or out of the timber yard exit. Mr Andriessen said that he also regarded the kerb as being obvious on the first time he had walked across it: T271.8. 11. Mr Andriessen said that when he made his observations of the island a pallet of salt was present against the kerb on the side of the island near the timber yard exit as in page 137 of Exhibit A. During his observations, he watched customers stepping down from the vertical face of the island in the area from the expansion joint on the kerb to where the pallet commenced. He accepted that the kerb tapered down from the expansion joint on the kerb to the ramp. There were no other goods on the island when he made his observations. He said this was not done regularly. Mr Andriessen said that the time of his inspection was mid-morning, after 10am and before lunch. He accepted that the pallet of goods on the day he made his observations was in a different position to the pallet located near the island on the day of the accident as indicated in the photo attached to the Bunnings Incident Report in Part D2.1 of Exhibit 1. 12. Mr Andriessen was asked questions about the yellow paint on the kerb and gutter near the main entrance. He said it was there when he started work at the Lake Road site in 2015. He understood its purpose was to differentiate the car park from the pedestrian area and in particular the change in height of the two. This made customers aware that the kerb was there. He understood the paint as bringing attention to a physical and obvious change in height of the kerb but was of the view that the customers would notice it whether the paint was there or not. He was content that there was no yellow paint on the island in question as from his observation the physical change in the height between the island and the roadway from the kerb was obvious. He did not regard the application of yellow paint at the main entry as being unreasonable but in his view it was unnecessary. The paint had not been reapplied at the main entrance in his time as Complex Manager and the painting was in place at the Lake Road main entrance when he commenced there in December 2015. It was not renewed in the time he worked at the site as far as he was aware. He also had no discussions with the Operations Manager in relation to the renewal of the paint. He confirmed that there was no yellow paint at the kerbs at the John Oxley Bunnings store. 13. Mr Andriessen did not agree with the suggestion that the ramp by its very nature made the change in height not obvious or less obvious: T277.49-T278.5. Mr Andriessen was of the view that the vertical face of the kerb and the presence of the ramp were cues to a change in height to a person walking across the island. He regarded it as obvious if anyone stepped up to access the island that there would be a step down from the island. He regarded the kerb as being obvious for the entire length of the kerb based on his observations and his observations of customers crossing the island. He regarded the height differential as being obvious even to a first time user of the island. He accepted that the roadway ramp progressively increased in height from the car park to the finished floor of the timber yard building: T280.43. Evidence of Peter Ragno 1. Oral evidence was given by Mr Peter Ragno who is the Operations Manager for Bunnings at its Taree store. He commenced working for Bunnings in December 2016 at the Taree store. He undertook two weeks of training at the Lake Road Port Macquarie store upon his commencement. He stated that an Operations Manager is the second in command to the Complex Manager at a Bunnings store. Mr Ragno said he was the relieving Complex Manager at the Lake Road Bunnings store in October 2017 for two weeks when Mr Andriessen was on annual leave. 2. Mr Ragno was taken to the Bunnings Incident Report at Tab 2.1 in Exhibit 1. Mr Ragno said that he prepared the Incident Report on Bunnings internal computer system in the area dealing with incidents, safety issues and loss prevention: T285.5. The report was a computer-based report with a pro-forma framework with prompts and menus to allow completion. 3. Mr Ragno said that he was contacted in his office on the first floor of the Lake Road Port Macquarie store at about 10:10am on 25 October 2017. He received a telephone call from Ms Inskip informing him that an incident had occurred with a customer falling over and being hurt near the car park outside the trade exit to the store. 4. Mr Ragno said that he left his office, went through the Bunnings store and walked outside to the relevant location. He noticed a couple of team members, being Mr Hines and Ms Inskip, standing there near a pallet of salt adjacent to a concrete island which was to the right of the timber yard exit as one emerged from the exit. Mr Ragno noticed a customer sitting on the ground with her back against the pallet of stock and a garment under part of her body. Her legs were pointing towards the car park. Mr Ragno spoke to the customer who said that she had fallen and hurt herself and that her ankle was really sore and she was in some pain. He does not recall whether she said how she fell: T288.50. In due course, an ambulance turned up. Mr Ragno said he remained in the area and observed what occurred. He understood that the customer was taken to hospital. Mr Ragno said that when he arrived at the scene the weather was fine but he had no recollection as to the lighting other than it seemed normal: T291.26-.33. He confirmed that there was plenty of sunlight while conceding that there may have been "a bit of shade off the building itself": T291.38. He recalled the visibility being "fine": T291.46. 5. Mr Ragno said that he obtained information from both Mr Hines and Ms Inskip and surveyed the area. He also gave evidence that he took the photograph which is behind the Incident Report at D2.1 of Exhibit 1. This is contrary to the evidence of Ms Inskip who asserted that she took the photograph. Mr Ragno confirmed that towards the left of the photograph was a pallet of salt which was off the island in the car park. His recollection when he arrived at the scene was consistent with that shown in the photograph at D2.1 of Exhibit 1. He could not recall whether the shadowing indicated in the photograph was similar or different when he arrived. Mr Ragno said he did not take the photographs at D2.1.1-D2.1.3 of Exhibit 1. 6. When looking at the photograph at page 133 of Exhibit A, the pallet was closer on the day of the accident, in Mr Ragno's recollection, to where the A-frame sign was located in the photograph. Mr Ragno also confirmed that the kerb on the island shown in the photographs at Exhibit A pages 131-132 was similar to the way it appeared on the date of the incident. Mr Ragno said that on the day of the incident he observed the kerb as extending from a square edge to a ramp style sloping edge closer to the building. At first he thought the edge may have been worn but he checked with the other corresponding island near the building entrance and saw it was of the same construction. This entrance is shown in the photographs at Exhibit A page 137 and Exhibit 1 at D2.1.3. The other island also had a sloping edge with a ramp design consistent with the island where the accident occurred. Mr Ragno confirmed that he walked across the island but could not recall whether he walked across from the disabled parking spot: T297.40-.48. 7. Mr Ragno then gave evidence of his observations of the kerb on the relevant island. He said he could observe a height differential between the island and the roadway with the island kerb edge being higher closer to the car park than where it went down to the building: T299.8. Mr Ragno said that the height differential from the island to the roadway seemed obvious to him: T300.42. Mr Ragno formed that opinion standing on the road looking at the island near the gate. He also stated that he stood on the island looking in towards the trade exit and the height differential between the island and the roadway was obvious to him in that the island was "definitely higher" than the roadway. Mr Ragno said he had to step up onto the island and step back down off the island: T301.1-.18. In relation to the ramp, Mr Ragno from his observations formed the view that the slope was there on purpose to enable a trolley or pallet jack or wheelchair to go up and down the ramp: this was an assumption made by Mr Ragno at the time: T303.6. 8. Mr Ragno said there was no CCTV footage of the incident as the cameras were internal. 9. Mr Ragno gave evidence that he then returned to the Complex Manager's office on the first floor of the Bunnings building with Ms Inskip. Ms Inskip logged into the Bunnings computer system. Mr Ragno completed the Incident Report and placed the photograph he took with the report. He relied on information from Mr Hines and Ms Inskip in filling out the form. In relation to the description on the third page of the Incident Report, this was completed by Mr Ragno with information provided to him by Mr Hines. Where the report says "we believe this sloping design was purposely built this way as it's the same as other islands located at the store", Mr Ragno said the "we" referred to he and Ms Inskip. The reference to "this sloping design" was a reference to the ramp. The reference to "some wear on the edge of the island" was a reference to scuff marks on the ramp: T305.18-.41. The references on page 2 of the report to the injury being as a result of "slip, trip or fall" and the injury caused being an "uneven surface" were the choices which in Mr Ragno's opinion were the closest on the computer system to what he understood had been the background to the injury. He asked Ms Inskip to review the draft which she did and he then submitted it. 10. On Mr Andriessen's return, Mr Ragno briefed Mr Andriessen in relation to what had occurred in his absence including the injury. 11. In cross-examination, Mr Ragno confirmed that his first view of the accident site upon arriving there at the request of Ms Inskip was similar to the photograph in Exhibit 1 at D2.1 and at Exhibit A page 138. Mr Ragno confirmed that he made careful observations including of the kerb as he knew an accident had occurred. Initially he was not aware that there was a ramp as it seemed to be worn. But after he looked at the construction of the second island at the timber yard entrance he realised it was a design: T310.3-.20. It was put to Mr Ragno that when he observed the kerb on the day of the accident the way it had been fashioned into a ramp obscured the height differential between the top of the concrete island and the road surface particularly as the ramp of the kerb was the same coloured material as all the surrounding cement. Mr Ragno conceded that the ramp of the kerb was the same colour as the surrounding cement (T311.3) and that height changed from one point on the kerb to another (T310.42) but was of the view that there was a definite difference between the road to the island in height and the height changed as the slope of the kerb changed: T311.16. This was what Mr Ragno observed on the day of the accident: T11.29. 12. Mr Ragno summarised his position as follows: "Q. I just want to clarify that that was what was observed on the day or observed from the photo? A. Observed on the day. So initially, my first reaction was that the square edge, as a normal footpath, had possibly worn to be a more of a sloping edge, however upon investigating the other island, I found that that was the same. Then I went back to this island, and at that point, I realised on - that I initially couldn't see as there was a car park there. I checked under the car and saw that there was a disabled car park on the other side, and then it was my assumption that that ramp was by design for, possibly a wheelchair access or something like that, or a, a, you know, a trolley or something like that. Something with wheels." (311.27-.37). 1. Mr Ragno accepted that upon his inspection the ramp was something which was unusual: T311.43. However, he rejected the suggestion that the ramp in the kerb obscured the height differential between the road surface and the surface of the raised concrete island in a way which the vertical face of the kerb did not: T312.1. Mr Ragno said that although the step height changed there was a definite step or rise onto the island: see also T313.7. Mr Ragno said that as "soon as [he] walked out, [he] could see that there was a step onto that island": T313.9. Mr Ragno accepted that he made observations standing on the roadway entrance to the timber yard exit but could not recall whether he looked at the kerb from the other side near the disabled car spot: T313.30. He could not recall whether he undertook an inspection on the day of the path going into the timber yard: T313.47. When Mr Ragno was specifically asked whether he stood on the kerb closest to the disabled car spot and looked back towards the gate on his inspection on the day of the accident, he said he could not recall specifically, however he believed he would have: T314.4. Mr Ragno accepted that depending on the time of the day there would be shadowing off the building in the area of the island but he could not recall the shadowing at the time of his inspection: T314.50-T315.15. 2. Mr Ragno said that he was first asked to recall his observations made on the day of the accident in March 2020 and stated that he had a similar actual independent recollection to that given in his oral evidence: T315.32. 3. In re-examination, Mr Ragno stated that he took the photograph at Exhibit 1 D2.1 about 15 to 30 minutes after the incident not after the time the ambulance had left the site: T316.41. Other incidents 1. The defendant tendered as Exhibit 2 a subpoena issued to the defendant by the plaintiff dated 25 October 2018 and four incident reports. One of the incident reports related to the plaintiff. The other three reports involved trips or falls at the Lake Road Bunnings store in 2018. These additional reports were produced during the trial and were explained in an affidavit of Mr Cooper, a solicitor for the defendant. The other three incident reports did not involve any trips on or near the island where the plaintiff fell. Defendant's medical evidence Report of Dr James Powell 1. The defendant tendered a report of Dr James Powell, Orthopaedic Surgeon, dated 14 March 2019 prepared following a consultation with the plaintiff on 28 February 2019. Dr Powell had, prior to the consultation, reviewed the first reports of Dr Porteous and Dr Bodel and the report of Mr Anning. The accident history provided to Dr Powell by the plaintiff as recorded in his report was as follows: "As she went into the timber section, her left foot went over the edge of the kerbing which was sloping and she lost her balance and fell." 2. Dr Powell noted that imaging following the plaintiff's arrival at Port Macquarie Base Hospital identified that she had suffered a fracture dislocation of the left ankle. Initial management involved a closed reduction with the following day an open reduction and internal fixation of the left ankle with medial malleolar screws and lateral plate with the plaintiff being placed in a cast. The plaintiff is recorded as being in hospital for six days and then being discharged in a wheelchair for rehabilitation. Dr Powell notes that in November 2018 the fixation devices were removed but this had made little apparent difference to the plaintiff's symptoms. 3. Dr Powell recorded the plaintiff's current symptoms as involving a main difficulty of stiffness of the ankle particularly with dorsiflexion and difficulty in negotiating stairs, going up slopes and walking over uneven or unstable surfaces such as walking in sand. The plaintiff reported pain in the ankle and that she used analgesics as required. The plaintiff's previous medical history was referred to. In relation to domestic activities, it is recorded that one of the plaintiff's grandchildren assists her and her daughters also come to assist with household activities as required. 4. On examination, Dr Powell noted the plaintiff appearing to sit comfortably with a slight swelling about the left leg and with the plaintiff walking with a moderate limp. He noted tenderness in the plaintiff's left ankle with mild oedema. He also noted left calf wasting and limited dorsiflexion and plantar flexion. 5. Dr Powell was of the view that the plaintiff suffered a fracture dislocation of the left ankle in the fall which had been managed medically with the plaintiff having some residual stiffness, irritability and swelling which were not improved significantly by the removal of the plate. Dr Powell states as follows in his report: "This is a combination of bone and soft tissue injury. While she has achieved osseous union in anatomic position, the soft tissue component has resulted in post injury and post-operative stiffness at the ankle and adjacent subtalar joint with persisting soft tissue swelling. This results in persisting pain about the ankle particularly when dependent. Stiffness limits mobility …" 1. Dr Powell stated the opinion that the plaintiff's current condition with respect to her left ankle and foot region was directly related to the accident on 25 October 2017. He said there was no indication of any exaggeration of symptoms by the plaintiff. He also noted that there was no pre-existing relevant condition. Dr Powell was of the view that the plaintiff's management and treatment were reasonable and necessary but there was no indication for any further direct management. He was of the view that further physiotherapy was unlikely to improve range of motion of the ankle and hind foot. He expressed the opinion that the plaintiff had considerable stiffness of the joint and that continued use of arch support orthotics would assist her as would modified shoe wear in mobilising. He stated that nothing would improve the plaintiff's capacity on unstable or uneven surfaces but from time to time she would benefit from the use of a walking stick and analgesics as required. Dr Powell also noted that the plaintiff's ability to handle slopes and stairs was limited and she would need to take considerable care to reduce her risks of falls in the future. He said she would not be able to handle unstable surfaces such as sand. The restrictions were in his view permanent. 2. As to domestic assistance, Dr Powell noted that while it was probable that the plaintiff would be able to do general household activities she would require some assistance from family for heavier activities such as shifting any furniture. She would also need assistance for high level cleaning and yard work. These needs were permanent. He regarded the plaintiff's prognosis as guarded and there was unlikely to be any improvement in range of motion at the affected joints. The plaintiff's risk of falls and secondary injury in the light of her age were heightened. Report of Dr Cromer 1. The defendant relied on a report of Dr Thomas Cromer, endocrinologist, dated 8 April 2020. As set out above, the plaintiff suffers from Type 2 diabetes. Dr Cromer considered in some detail the plaintiff's diabetic management. He expressed the opinion that the plaintiff's life expectancy would be reduced by about 20% or four years as a result of her diabetes. As at the date of the report, 8 April 2020, the plaintiff had a life expectancy of 15 years. He also noted that podiatry care was quite normal for elderly patients with diabetes. Having regard to the lack of any peripheral vascular disease or neuropathy, Dr Cromer was of the view that he would not expect any impediment to the plaintiff's ability to perform domestic tasks, gardening or self-care arising from her diabetes. Report of Ms Hammond 1. The defendant relied on a report of Ms Deborah Hammond, occupational therapist, following an assessment at the plaintiff's residence on 13 September 2019. 2. I have already set out aspects of the transcript of the joint conference between Ms Skibby and Ms Hammond above. 3. In her report, Ms Hammond noted that the plaintiff continued to have restricted range of motion in her left ankle which affected her balance, capacity to walk on inclines and to squat. Whilst the plaintiff had largely returned to most activities as far as personal and domestic care were concerned, she now used a lawn mowing service. Ms Hammond gave a summary of recommendations as to past care and future care in paragraph 2.1 of her report. These recommendations were significantly less than those of Ms Skibby. 4. In paragraph 3 of her report, Ms Hammond sets out the plaintiff's history of the accident as follows: "She stepped on an uneven step (gutter) in the concrete paving and fell, twisting her ankle in the process". 5. It is noted in paragraph 3.1 of her report by Ms Hammond, that prior to the accident, the plaintiff was seeing a podiatrist every couple of months for diabetic foot care. This podiatrist had referred the plaintiff to a sports podiatrist following her accident for assessment who had prescribed foot orthotics and the purchase of jogging shoes to accommodate her orthotics. It was noted that the plaintiff took analgesics for pain management. The plaintiff's prior medical history was set out in paragraph 3.1.2 of the report. The report of Ms Hammond included various photographs of the plaintiff, a description of her social situation, the plaintiff's reported pain in the left ankle and left hip (page 15) and photographs of the plaintiff undertaking various activities. 6. It is noted that the plaintiff was able to sit to do some meal preparation and stand to cook, was able to lift and carry items around the kitchen and home on a level surface, was able to carry a partially loaded basket of laundry down the ramp, was able to use a dry mop to sweep the hard floors in the lounge area, was able to descend and ascend the external staircase with care, was able to balance on a step-stool to reach a cupboard, and was able to stoop and lunge to access low cupboards and to pick items from the floor. It was recorded that following the accident her daughter Melinda had lived in the family home to care for the grandchildren and to provide support to the plaintiff. 7. Importantly, on page 23 of her report, Ms Hammond noted that the plaintiff had a shower off her laundry which she used upon returning home after the accident. This appears to be in addition to the shower over the bath in the main bathroom (see page 25 of the report). At pages 27 to 28, Ms Hammond sets out the pre- and post-accident responsibility for domestic tasks. It was noted that the plaintiff continued to clean the house but received assistance from her daughter with spring cleaning and heavier cleaning. A grandchild was also noted as undertaking vacuuming. It was also noted that since the accident the plaintiff had engaged a lawn mowing service. In summary, it was indicated that the plaintiff had returned to most of her domestic role with the grandchildren doing age-appropriate chores and with the plaintiff's daughter continuing to provide assistance with more difficult cleaning tasks. 8. At page 33 of her report, Ms Hammond indicated that she deferred to the plaintiff's podiatrist as to her orthotic needs. Assistance was recommended to age 80 for lawn mowing and gardening, at which point the plaintiff would likely have needed help in any event due to age and comorbidities. Ms Hammond did not agree with Ms Skibby that the plaintiff required home modifications to her bathroom. Bunnings Incident Investigation Report 1. Included as part of Exhibit 1 was a document described as "Bunnings Incident Investigation Report". Part of the report relating to the accident provides as follows: "From the direction the customer was coming from she had to step up onto a cement island. Upon stepping down off the island again her left foot stepped half on and half off the edge causing her ankle to twist and/or roll which led to the customer falling heavily to the ground." 1. This report was submitted on the day of the accident. 2. Another report given by Bunnings officers on the day of the accident included the following: "There was a cage of gas bottles on the island but not close enough to the incident to create an obstruction. A pallet of salt was not on the island. Some cars were parked in allocated parking spots as normal. Weather was dry. There is some wear on the edge of the island where the fall occurred however we believe this sloping design was purposely built this way as it's the same as other islands located at the store." Request for particulars and answer to particulars. 1. Part of Exhibit 1 was a request for particulars by the solicitors for the defendant dated 20 November 2018 and a response by the solicitors for the plaintiff dated 14 December 2018. Read together, the particulars provided indicated that the plaintiff had not previously walked over the incident location. Also it is stated that the plaintiff did not observe the concrete kerbing prior to the incident. In relation to a request as to what steps the plaintiff alleges the defendant should have taken, the following is stated: "The Defendant should have delineated the kerb by painting, marking, or highlighting, or in the alternative, should have placed warning signs, ropes and/or barriers so as to avoid persons such as the Plaintiff suffering injury, loss and damage … The "dangerousness" refers to the kerb and it state without painting, marking, or highlighting." Burnside records 1. As stated above, the plaintiff has been a carer for various grandchildren on reference from Burnside Uniting Care. The defendant tendered numerous records including for the period after the plaintiff had her accident. These in substance provided that the plaintiff was generally coping with some assistance despite her fractured ankle. They were relied on by the defendant as showing that the plaintiff was active and well after the accident. Medical records relating to previous injuries 1. Included in Exhibit 1 were extensive records relating to prior injuries of the plaintiff. The plaintiff was cross-examined in relation to a number of these injuries. Some she did not recall and others she did recall. 2. The records include the following references: 1. 2 March 1983: a reference to back pain; 2. 21 October 2001: a reference to C4/C5 disc damage and a right shoulder rotator cuff tear; 3. 14 August 2003: a reference to left knee pain and lower back pain; 4. 10 September 2003: a reference to left knee pain and right rotator cuff injury; 5. 5 September 2007: a reference to a supraspinatus tear to the left shoulder; 6. A similar reference was made to left shoulder pain with a frozen left shoulder in records of Port Macquarie Base Hospital Aquatic Physiotherapy dated 11 January 2008; 7. 12 June 2010: a reference to the plaintiff falling from the ladder and landing on her left hand side injuring her hip and knee and left elbow; 8. 28 April 2011: a reference in Port Macquarie Base Hospital records to the plaintiff having a cervical strain; 9. 28 April 2011: reference in Port Macquarie Base Hospital records to the plaintiff being struck by a motor vehicle with neck, right shoulder and right wrist pain. The plaintiff denied this, as set out above; 10. 9 September 2013: Port Macquarie Base Hospital records indicate that the plaintiff was diagnosed with a fracture of the left tibial plateau. The plaintiff complained of severe left knee pain after being knocked over by a dog. At this time the plaintiff required assistance with a wheelchair and a shower chair. This was because the plaintiff was reported as being concerned about how she could manage use of the bathroom and shower at her house; 11. 14 October 2014: records show the plaintiff attending a dietician in relation to weight problems and requiring assistance with weight loss diabetes; 12. 1 January 2017: the plaintiff was referred by her general practitioner Dr Young for aquatic physiotherapy to assist with increased mobility following recent pain. The plaintiff said this was for lower back pain. Submissions of the parties 1. The plaintiff submitted, in general summary, as follows: 1. There is nothing about the plaintiff's evidence that raises any question as to the plaintiff's credit in the sense of the plaintiff's reliability as to her version of events. The plaintiff should be accepted as a witness of truth; 2. The raised concrete island in question was permitted to be used by the defendant's staff and customers to access a designated pedestrian entry area at the vehicle exit to the timber section of the defendant's premises; 3. The evidence establishes that in addition to products being placed onto the raised island, products were also placed in the immediate vicinity of the kerb involved in the plaintiff's accident on or near the concrete surface of the area where vehicles would drive when exiting from the timber section; 4. The evidence establishes the raised island involved in the plaintiff's accident had a number of different kerb faces. In relation to the kerb closest to the timber exit, as the road ramp progresses towards the building, the kerb changes from a vertical face, the height of which progressively reduces, to a ramp where the kerb has been cut away so that the square edge has been removed; 5. Although the raised island has expansion joints on it, they are not a visual cue to the presence of the kerb and change in height because there are expansion joints on the concrete surfaces in the area; 6. The evidence establishes that there was no measure applied such as high visibility paint that marked the presence of the kerb and the change in height. This is different to the main entrance of Bunnings which utilised high visibility yellow paint. The defendant was aware that the driveway over time became a customer access point for pedestrians, but did not implement the same procedure as in the main entrance to bring to the attention of customers the change in height. This could be done through the application of high visibility paint. There was an inconsistent approach to pedestrian customer access which led customers such as the plaintiff to a mistaken belief as to the height of the pathway; 7. The island and the roadway had the same colour and appearance. A review of the different photographic evidence comfortably shows that the area of the kerb where the plaintiff's accident occurred, including the cutaway section of the kerb, did not of itself visually indicate in a clear manner that there was, first, a kerb, and, second, there was a height differential. The photographs confirm that the appearance of the kerb had the effect that there was a continuity of colour and a continuity of appearance which did not mark or show the presence of the kerb or the height differential; 8. The plaintiff's evidence that she did not see, whilst walking normally, the kerb or the height differential should be accepted; 9. The evidence of the various witnesses for the defendant as to the obviousness of the kerb and the height differential should be given little weight. Their accounts were influenced by their familiarity with the area and secondly their knowledge, after the accident, that an accident had occurred. Ms Inskip could not recall independently her first use of the island and Mr Ragno could not recall whether he had inspected the island in the path utilised by the plaintiff. The court should prefer the evidence of the plaintiff including that she had not used the area on a prior occasion. The change in height was not obvious. The plaintiff was exercising reasonable care for her own safety and her evidence should be accepted in the light of the height differential of the kerb. The accounts of the defendant's witnesses are not reliable as they are influenced by their familiarity with the island; 10. The defendant was reasonably aware of the cutaway nature of the kerb; 11. The plaintiff's evidence that there was not a pallet of salt at the time of the accident should be accepted. The evidence of the defendant's witnesses was inconsistent on this point; 12. The Incident Report did not involve a direct account from the plaintiff or even a direct account from the witnesses who first attended but it was the version of Mr Ragno and thus was an internal narrative document; 13. The risk of harm was that a pedestrian customer, when exercising reasonable care for their own safety, and when walking normally, would, having stepped up a normal vertical faced kerb onto the raised island, not appreciate the presence of the kerb and the associated height differential because the materials used in the manner of how the cutaway kerb had been constructed, meant that it was not readily discernible that there was either a kerb or a height differential. The risk of harm was an example of tripping, mis-stepping or a falling hazard; 14. The risk of harm was foreseeable; 15. The fact that there were no records of a prior similar incident does not cut across the situation being foreseeable or that reasonable precautions should have been taken. The risk of harm was not insignificant. A reasonable person in the position of the defendant, being a large, well-resourced national retailer, would have taken precautions to avoid the risk of injury as had been done in the main entrance by the use of the yellow high visibility paint; 16. On a factual causation basis, the court can comfortably conclude that but for the negligence by the defendant, the plaintiff's accident would not have occurred and that had any reasonable precautions been taken, the plaintiff's accident would have, on the probabilities, and on the counterfactual, have been avoided; 17. There was no contributory negligence by the plaintiff. She was exercising reasonable care for her own safety and she was walking normally. The evidence establishes that it was reasonable for her not to have appreciated the presence of the cutaway kerb and the height differential; 18. Further detailed submissions were made about quantum matters. It was submitted that the plaintiff gave her evidence on injury and disability in a forthright and stoic manner without suggestion of embellishment or exaggeration. Her pre-existing conditions were irrelevant and there should be no reduction, generalised or otherwise, in respect of the plaintiff's damages for those matters; 19. The plaintiff's injury was serious and has resulted in continuing serious pain and restrictions. The plaintiff should be regarded as stoic in the light of her evidence and in the light of the evidence of her daughter Ms Melinda Baker. The evidence suggests a serious injury resulting in serious pain and a significant limitation of movement affecting the plaintiff in multiple activities of daily living. Substantial damages for non-economic loss should be awarded; 20. Further submissions were made on various damages issues. 1. The defendant submitted, in summary, as follows: 1. The section of kerbing of the subject island where the plaintiff fell was readily observable as the plaintiff walked towards the edge of the kerb of the island and was in the nature of an obvious risk. This is established by among other things the absence of other incidents of pedestrian patrons falling while traversing the subject island as well as the evidence of the defendant's witnesses; 2. The defendant owed the plaintiff a general duty of care as an occupier to take reasonable care to avoid a foreseeable risk of injury to the plaintiff on the basis of a person exercising reasonable care for their own safety. The content of a breach of the duty of care involves regard to the obviousness of the risk to a pedestrian exercising reasonable care for his or her own safety. An occupier such as the defendant is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them". What constitutes the exercise of reasonable care depends on the circumstances of each case. This has to be determined in the light of ss 5B and 5C of the CLA; 3. The prospective application of bright yellow paint as propounded by the plaintiff to the island kerb constitutes in effect a warning of an obvious risk to the plaintiff; 4. The risk of harm in the present case is the risk that a member of the public, after having stepped up over the kerb bordering the disabled carpark of the subject island and walking across the subject island towards the exit of the timber yard, would fail to perceive when stepping off the subject island kerb where such island kerb was in the form of a tapering ramp, a height differential being present as between the surface of the island to that of the roadway joining the island kerb: submissions paragraph 42; 5. The central question in the proceedings is the obviousness of the risk of harm; 6. The expert report of Mr Dimopoulos dated 28 February 2019 should be given no weight; 7. The court should find that the credit of the plaintiff has been impugned in a number of respects including that she had previously used the pedestrian entrance at the timber yard to gain entrance to the timber yard despite her denials and cross-examination. Other credit issues were relevant: submissions paragraphs 69-91; 8. The court should treat the plaintiff's evidence that she was unable to perceive a height difference between the top of the island and the adjoining roadway where she fell, with caution; 9. The evidence before the court strongly supports there being no other relevant incidents of slip, trip or fall at the subject island: see Exhibit 2. The evidence of the defendant's witnesses also supports this. None of them had ever observed or become aware of a customer falling while crossing the subject island: submissions paragraphs 99-143; 10. A previous complex manager had obviously deemed it necessary to paint the main entrance kerbing in yellow paint but had not deemed it necessary to paint the subject island kerbing. None of the defendant's witnesses had their credit impugned and weight can be given to their objective observations as to what is readily observable in respect of the physical characteristics of the subject island. There had been substantial pedestrian traffic over the subject island without falls being witnessed or brought to the attention of the defendant's witnesses; 11. The risk of harm was obvious and required no warning. The risk of harm was insignificant. In the circumstances a reasonable person in the defendant's position would not have painted the subject island kerb; 12. The cause of the accident was the plaintiff's failure to take reasonable care for her own safety by only looking at her route over the subject island from afar and not when stepping off the island; 13. No breach of duty of care should be found. If a breach is found and causation is established then there should be a reduction of 50% for contributory negligence; 14. Further detailed submissions were made on damages issues. Credit of the witnesses 1. In my view, credit issues are not particularly significant or decisive in this matter. 2. In relation to the plaintiff, contrary to the defendant's submissions, she appeared to be a generally truthful witness who was doing her best to give her evidence candidly and carefully. She made concessions where appropriate. Although the plaintiff gave only limited evidence in chief in relation to past injuries, I do not think this is relevant to her credit. In cross-examination, the plaintiff readily conceded numerous past accidents or injuries which she could recall. I accept the plaintiff's submission as to that. There were some relevant differences between the plaintiff and her daughter in relation to domestic assistance issues, including lawn mowing/gardening. I consider these further below. I do not regard any of them as indicating that the plaintiff's credit or reliability was generally questionable. In particular, I do not see them as making less reliable the plaintiff's general account of the accident or what she perceived on the day of the accident. 3. The plaintiff's daughter, Melinda Baker, also impressed the court as a truthful and direct witness. She made concessions where appropriate. Although she could not recall immediately the detail in many instances of the hours of assistance which she gave her mother, her evidence was believable on that issue. Ms Baker emphasised that she was willing to give her mother any assistance that she required. I accept that evidence. She referred to instances in 2018 and 2019 when she was not living in Port Macquarie and thus could not give assistance to her mother. I will consider this issue further in considering domestic assistance matters including the future commercial assistance claim. 4. I saw no indication of Ms Baker altering her evidence to assist the plaintiff's case. Similarly, I saw no evidence of the defendant's witnesses being deliberately biased towards the defendant, their current employer, in their evidence. 5. In relation to Mr Hines, he appeared to be an honest witness who was doing his best within the limits of his recollection to give his evidence truthfully and carefully. 6. In relation to Ms Inskip, she also appeared to be a truthful witness. I found her to be particularly careful in her evidence and readily conceded where she did not have a precise recollection of matters. Her evidence of the use of the various entrances to the timber yard was helpful and clarified the photographs which were in evidence. 7. Mr Andriessen was an impressive witness who was careful and thorough in his evidence. Mr Ragno similarly impressed as a truthful witness who made concessions where appropriate. I accept both as witnesses of truth. 8. Overall, the inconsistencies between the defendant's witnesses were relatively minor and on peripheral issues. Consideration Factual findings 1. I make the following findings of fact in the proceedings: 1. The plaintiff was born in August 1950 which made her 69 years of age at the final hearing and 67 years of age at the date of the accident. She resides in Port Macquarie with two of her grandchildren; 2. The plaintiff has five daughters, all of whom are adults. At various stages, she has, to her credit, looked after three grandchildren for each of two of her children. These have been foster care arrangements. The plaintiff currently cares for two grandchildren, a grand-daughter born in January 2007 and a grandson born in October 2008. She is compensated financially by Uniting Burnside for the care costs of the two grandchildren who reside with her at her home. This caring is the plaintiff's only occupation; 3. After the accident on 25 October 2017, it appears the plaintiff's daughter Michelle attended the plaintiff's house daily and took the three grandchildren who were then living with the plaintiff to and from school and their activities for a week. When the plaintiff came home from hospital on about 30 October 2017, Michelle continued to provide the plaintiff with domestic assistance. The plaintiff also had personal and domestic assistance from staff at ComPacks, a care provider. From about 8 November 2017,the plaintiff's daughter Melinda moved in with the plaintiff at the plaintiff's home for a period of about three months (T89.27), providing the plaintiff with personal and domestic assistance and childcare assistance for the three grandchildren; 4. On 25 October 2017, the plaintiff attended the defendant's store at Lake Road in Port Macquarie to have three fence palings cut and reduced in size. I accept the plaintiff's evidence that she had not previously crossed the concrete island in question as a pedestrian and entered into the timber yard of the defendant's premises but rather had usually entered in through the main entrance of the store and on occasions had exited through the timber yard. I also accept the plaintiff's evidence that she had exited through the timber yard on one or two occasions yearly from 2002 to about 2015: T61.29; T62.43 cf T98.20; T99.49; T102.37; 5. There were a number of possible entrances and exits to the defendant's Bunnings store at Lake Road. The main entrance was some distance away from the entrance to the timber yard and was through red doors. The kerb near the main entrance was painted in yellow: Exhibit A page 138. There was also a timber yard designated pedestrians only entrance near the boom gate exit from the timber yard to the roadway of the car park. There were also vehicular entry/exits at the timber yard which some pedestrians used to access the timber yard from the car park; 6. There were raised concrete islands on each side of the vehicular entrance and exit to the timber yard. They are depicted in a number of photographs in Exhibit A from page 131. On each raised concrete island were placed gas bottles in cages for barbecues or welding. The gas bottles on the concrete island to the left of the timber yard exit are shown in the photograph at Exhibit A page 134. The gas bottles on the raised island entrance to the right (as looking at the Bunnings timber yard) vehicular entrance to the timber yard may be seen in the distance in Exhibit A page 136 and in the photograph in Exhibit 1 at photograph D2.1.3. In addition, there were often goods, particularly bags of pool salt, on a pallet, placed at or near the two raised concrete islands; 7. The plaintiff gave evidence that on the day of the accident there was no pallet with salt or other goods on it at or near the island at the time she was injured. The photograph immediately behind the Bunnings Incident Investigation Report shows a pallet of goods just off the relevant concrete island closer to the building than the gas bottle cage. Although both Mr Hines and Ms Inskip were cross-examined to the effect that this was not present at the time of the accident and in relation to Ms Inskip, that it may have been moved there after the accident, I find, contrary to the plaintiff's submissions, that it was very likely there at the time of the accident. This is consistent with Mr Hines' initial evidence (T192.3-.13). Although Ms Inskip could not recall whether the pallet of salt may have been moved into position after the accident (T232.25) and she conceded that it may have been moved after the accident (T232.15), I accept her evidence that generally product gets set up at the start of the day and then removed at the end of the day: T232.15. This is consistent with her evidence that "we always have a pallet of salt out the front of our timber yard": T232.34. Considering all the evidence, including the evidence of Mr Ragno as to what he saw, I think it is more likely than not that it was there at the time of the accident as indicated in the photograph taken by Ms Inskip or Mr Ragno on the day of the accident which photo is immediately behind the Bunnings Incident Report in Exhibit 1 Part D2.1. 8. I find that on the day of the accident, the plaintiff approached the timber yard entrance from the car park and saw that a vehicle was likely to be leaving through the boom gate exit. She therefore retraced her steps, went around the island near the gas bottle cage and then walked across the disabled carpark place to the left of the island, took a step up on to the island, crossed the island and did not see the drop from the kerb on the other side of the island closer to the boom gate. I accept the plaintiff's evidence that she thought that the concrete continued without a change in its height. She simply did not see or perceive the height differential. This is despite her having walked around the concrete island which has a clear kerb without going down a step, taking a step onto the concrete island at the kerb and there being an expansion joint near the kerb she stepped onto and an expansion joint near the kerb on the other side of the island where she fell. The kerb and ramp on the island are not painted in a different colour similar to the yellow paint at the main entrance. The kerb and the island and the roadway ramp are constructed from similar coloured materials. It appears the island has been constructed in a way which allows a pallet jack or trolley or possibly a wheelchair to go on to the concrete island through a lower part of the kerb where there is a ramp to place or move goods. A photographic depiction of this in relation to the island in question is at Exhibit A page 138. The edge of the relevant kerb closer to the pedestrian designated entry appears to have been cut away as a design feature to make a ramp; 9. As indicated, I find that the plaintiff walked across the island in a general diagonal fashion without seeing the step down from the concrete island. The evidence does not permit me to find precisely where the plaintiff fell. Mr Hines gave evidence that when he turned around after hearing the thud of the plaintiff's fall he saw the plaintiff lying on the ground positioned between the wheel arch and door of the car depicted in the photograph behind the Bunnings Incident Report. I accept this evidence. The plaintiff could not provide clear evidence as to where she fell. She accepted that she walked in a diagonal fashion generally as indicated in the photograph number five at Exhibit A page 119 and believed she fell in the area marked by a red circle in photograph four on page 119. I consider this to be likely; 10. On balance, I consider it likely and I find, having regard to the plaintiff's description of the mechanism of the fall and her pathway of travel, the limited height of the ramp area and Mr Hines' evidence as to where he first saw the plaintiff, that the plaintiff fell in the area where the kerb was not constructed as a ramp which allowed access by a pallet jack to the island, but probably the fall occurred from the kerb along from the ramp some limited distance and somewhat closer to but not near the kerb where the adjacent salt pallet had been placed. No greater precision can be given. I prefer the defendant's oral submission as to the general location of the fall; 11. I accept Mr Andriessen's evidence that from his observations, the roadway continued very gradually upwards on a gradient from the carpark to the building yard floor such that the kerb of the island closer to the yard exit where the plaintiff fell reduced in height as it approached the Bunnings building. This evidence was consistent with the photographic evidence. The kerb height was similar at the end of the concrete island furthest away from the Bunnings building and on the side of the concrete island near the disabled parking spot. However, on the side closest to the pedestrian designated entrance the kerb gradually reduced in height until it reached the ramp designated area and then increased in height slightly at the end of the ramp for a very short distance until the kerb met the Bunnings building; 12. I accept the evidence of Mr Hines and Ms Inskip that from their observations working in the timber yard at various times (including Mr Hines from 2016-2019), customers often crossed the island as the plaintiff did to access the timber yard entrances. This is consistent with Mr Andriessen's evidence as to his observations after the accident. I also accept their evidence that they had never observed or become aware of any other person falling from the island as the plaintiff did. This was also the evidence of Mr Andriessen and Mr Ragno which I accept; 13. There were differences between the witnesses as to the frequency of customers crossing the island. Ms Inskip assessed that it would be "easily 30 people" who would do that in an hour from her observations particularly in 2010 – 2011 when she worked in the timber yard: T226.4. Mr Hines suggested that on average he would see six to ten people access across the island per hour: T195.42-.49. Mr Andriessen in his observations in about an hour, saw about 10-20 people crossing the island. He said 18,000 people went to the Bunnings Lake Road store per week when he was there and about 35% used the timberyard/trade entrance although some of these were in vehicles: T259; 14. The evidence does not allow me to find accurately the frequency of people crossing the island in the direction the plaintiff did prior to the accident. However, it seems clear from the various accounts of the defendant's witnesses that people regularly did cross the island on foot as the plaintiff did to go to the timber yard. There is no evidence of any person falling from the island as the plaintiff did prior to the plaintiff's fall or thereafter. See Exhibit 2 as to the period 25 October 2016 to 25 October 2018. Mr Hines worked there from 2016 to 2019: T195.35. Mr Hines also said in his position as a supervisor in the timber section he would as a matter of practice have been made aware of any other falls near the entrance to the timber section: T204.3. Mr Andriessen gave similar evidence as to the period when he was complex manager: T257.4. There was no evidence before the court of any other person falling from the concrete island or near it as the plaintiff had done, prior to the accident; 15. Neither Mr Hines nor Ms Inskip nor Mr Ragno had any clear recollection of shadowing on the island on the day of the accident: see for example T202.25. The photographs depict different degrees of shadowing. The evidence is in my view not clear as to whether the relevant part of the island was in shade or shadow at the time of the accident. The plaintiff had no clear recollection on this issue. I find that the weather was fine and sunny at the time of the accident; 16. I accept the plaintiff's evidence that her foot went forward on the edge of the kerb of the island and she fell onto the roadway with excruciating pain in her left foot: T66.40; 17. I accept that Mr Hines initially attended the plaintiff followed by Ms Inskip and later Mr Ragno. That is different to the plaintiff's evidence who believed the first person who attended her was female. In my view, this is a minor matter. I find that Mr Hines called an ambulance which took some time to arrive and then the plaintiff was taken to hospital. I accept that the Bunnings Incident Investigation Report was prepared by Mr Hines, Ms Inskip and Mr Ragno in the way described in their evidence. In the end, Mr Ragno seems to have prepared the final version. I accept that Mr Ragno undertook observations of the area after the accident on the day of the accident. I accept Mr Andriessen undertook careful observations of the area for about an hour soon after his return from leave; 18. In my opinion, there is no satisfactory evidence which allows me to find to the requisite standard that the plaintiff fell from the island because of any wear on the edge of the kerb of the island closest to the pedestrian entrance as opposed to her simply not seeing the kerb and believing the island continued on the same level to the roadway entrance; 19. I also accept the evidence of Mr Hines, Ms Inskip, Mr Andriessen and Mr Ragno that in the time they were at Bunnings at Lake Road they had no difficulty in differentiating between the concrete island and the roadway beyond as requiring a step down from the concrete island after taking a step onto the concrete island to cross it. Of course, they likely crossed the island many times in the course of their employment and thus had a familiarity with it. This has to be taken into account. They also all inspected the kerb after being notified that a fall had occurred and assessed it with this knowledge in mind; 20. I accept Mr Andriessen's evidence that after the fall he considered whether to paint the island kerb like the kerb at the main entrance and decided it was not necessary as to him the kerb was obvious where the plaintiff fell; 21. I find that the plaintiff was conveyed to Port Macquarie Base Hospital where she undertook medical treatment as described in the medical findings. Findings on the medical evidence 1. In the light of the submissions and the evidence before the court, I make the following medical findings: 1. Prior to the accident, on 25 October 2017, the plaintiff suffered from a number of medical conditions and was involved in a number of accidents. These have been set out above in the recitation of the evidence. There was no evidence of the plaintiff having any significant issues with her left foot or left ankle prior to the accident. However, she suffered from low back problems, problems with her right shoulder from a rotator cuff tear, neck problems which she states had primarily resolved, problems with her left shoulder and problems with her left knee. There is no evidence these were giving the plaintiff particular difficulty at the time of the accident. On 1 January 2017, the plaintiff had been referred to hydrotherapy for back pain; 2. At the time of the accident, the plaintiff suffered from Type 2 diabetes which was under control with medication. She had issues with her weight for which she had seen a dietician. There is, however, no evidence before the court of any medical condition which restricted in any way the plaintiff's ability to walk safely across the concrete island at the accident location on 25 October 2017, including carrying three 3 feet long palings to be cut; 3. The evidence establishes that the plaintiff did not see the step down off the traffic island and fell injuring her foot. The plaintiff was taken to Port Macquarie Base Hospital and stayed there for six days. 4. The accident caused a fracture dislocation of the left ankle. A closed reduction was performed at Port Macquarie Base Hospital on the day of the accident and Ms Baker was placed in a limited cast with her leg elevated. She was in significant pain; 5. On 26 October 2017, the plaintiff had an open reduction procedure with internal fixation of the left ankle with medial malleolar screws and a lateral plate inserted. She was then placed in a cast. She remained in the hospital to assist in bringing the swelling down; 6. The plaintiff was discharged in a wheelchair on 30 October 2017 and proceeded through a process of rehabilitation under the guidance of her general practitioner with graded mobilisation, hydrotherapy, the use of a moon boot and physiotherapy with assistance with her range of motion and exercise; 7. The plaintiff obtained a partial weight bearing position after six to eight weeks but was not fully weight bearing for about three months; 8. From that time, the plaintiff has frequently used a stick to assist her with stability. On 20 November 2018, the plate and screws were removed as they were irritating the plaintiff. I accept that the removal of the plate and screws has made little difference to the plaintiff's symptoms or restrictions; 9. The plaintiff complained of pain in her left hip but this was not ongoing and has resolved; 10. The plaintiff's accident has left her with considerable ongoing pain for which she takes analgesics. Although the fracture site has successfully healed, the plaintiff is left with restrictions and limitations. The plaintiff has stiffness at the ankle, finds it difficult to negotiate stairs or go up slopes, has difficulty walking on uneven or unstable surfaces including at parks and in sand at the beach. The plaintiff has limitations with the flexion of her ankle. As indicated, the plaintiff has frequent pain and on occasions has swelling. Her limitations have required her to see a physiotherapist who has prescribed her orthotics for foot support. The plaintiff cannot return to her pre-accident activities which she enjoyed including tennis and beach activities because of her ankle stiffness and pain. The accident has left the plaintiff with a moderate limp on the left hand side. It has also left her with scars which although well healed are tender. The plaintiff has limited dorsiflexion and plantar flexion of the left ankle. Although there is some inconsistency in the medical opinions, it appears that the plaintiff has some left calf wasting as a result of the accident; 11. The plaintiff has returned to many of her pre-accident domestic duties, but cannot do lawn mowing, most gardening, and more difficult cleaning activities. Her daughter Melinda has assisted with more thorough cleaning and her grand-daughter has assisted with vacuuming of the bedrooms; 12. In substance, there is substantial agreement between the plaintiff's and the defendant's specialist medico-legal opinion. The accident resulted in both bone and soft tissue ligamentous injury. The soft tissue component has resulted in a post injury and post-operative stiffness of the ankle and adjacent joint with some soft tissue swelling on occasions. The stiffness limits the plaintiff's mobility and results in persisting pain; 13. Although the plaintiff has had some psychological symptoms, she does not suffer a recognised psychiatric illness as a result of the accident: report of Mr Anning dated 16 November 2018; 14. On balance, particularly in the light of an MRI scan dated 3 September 2019 referred to in the reports of Dr Bodel, I find that there is now mild secondary osteoarthritis in the ankle. Although initially Dr Bodel only expressed the opinion that the plaintiff has an increased risk of post-traumatic osteoarthritis which may make things worse over time (Exhibit A page 13), I accept Dr Bodel's opinion that the natural history of osteoarthritic change is for progression over time and it is likely that there will be the development of osteoarthritis in the ankle joint of the plaintiff which will progress (Exhibit A page 16); 15. As discussed further below, on the balance of the orthopaedic surgeon medico-legal evidence, I am not satisfied that the plaintiff is likely to require any further surgical procedures to be performed on her. The plaintiff is incapacitated for a number of day-to-day activities because of her injury; 16. The plaintiff has been given exercises to complete by her physiotherapist which she does at home. She also obtains benefit from orthotics which have been prescribed for her. I accept Dr Porteous' opinion that the plaintiff is restricted from moderate or heavy lifting, pushing, pulling or carrying. She is, however, able to do shopping with the assistance of leaning on her shopping trolley. She is able to complete many domestic activities. She has also been able to undertake pleasurable activities such as holidays with her family, reading, and family social occasions; 17. The plaintiff's conditions are continuing. They are directly related to the 25 October 2017 accident. The plaintiff needs regular review by her general practitioner and general management. I consider various recommended treatments and equipment further below. Consideration of the opinions in the report of Mr Dimopoulos 1. I have set out above a summary of the report of Mr Dimopoulos dated 28 February 2019: Exhibit A page 111. 2. In paragraph 7.1 of the report, Mr Dimopoulos states that his reasoning "is based on an adoption of the facts assumed". The facts assumed by him are set out in Part 4 of his report. A number of the facts assumed by Mr Dimopoulos are inconsistent with the evidence and internally inconsistent in his report: 1. In paragraph 4.4, Mr Dimopoulos has the plaintiff arriving at Bunnings on 20 May 2008 at about 9:30am. The accident occurred on 25 October 2017. The correct date is, however, referred to in paragraph 2.2 of Mr Dimopoulos' report. Why there is an inconsistent and incorrect date in paragraph 4.4 is unclear; 2. In paragraph 4.5 of his report, Mr Dimopoulos says that the plaintiff was holding a sample of a paling under her arm which was two and a half to three feet in length. Inconsistently, the plaintiff in her evidence in chief states that she was carrying three, three feet palings with her at the time of the accident: T64.12; 3. In paragraphs 4.8 and 4.10 of his report, Mr Dimopoulos assumes that the plaintiff realised there was a kerb present but she was not expecting that the surface was damaged and uneven. This is a significant assumption by him. This is inconsistent with the plaintiff's evidence. The plaintiff's evidence was effectively that she was not aware that there was a kerb or as she describes it "another step down". She thought that the level of the concrete island continued at the same level towards the store. She said that she did not visually see any change in height: T66.18-.32. The assumption is important as Mr Dimopoulos' report is primarily focused on the "damage", as he puts it, to the kerb, not the fact that there was a kerb there at all; 4. In paragraph 4.4 of the assumptions, Mr Dimopoulos assumes that the plaintiff was going to the Bunnings store to purchase some timber palings. The plaintiff's evidence was that she was going to Bunnings to have the palings which she had with her cut down: T63.15. I do not regard this as a significant difference but it is a further incorrect assumption by Mr Dimopoulos; 5. In paragraph 4.11, Mr Dimopoulos assumes that there were no obstructions in the plaintiff's way such as pallets of pool salt observed during his view in 2018. I have found that there was a pallet of pool salt present slightly off the island consistent with the photograph behind the Report in Part D2.1 in Exhibit 1. This however, due to its location, was not an obstruction to the plaintiff; see also paragraph 4.17 of Mr Dimopoulos' report. 1. Mr Dimopoulos relies heavily on what he describes as the "damage" to the kerb in his analysis. In paragraph 5.5, he states that the damage to the kerb was "not obvious from this angle". The reference to "significant damage" is made in paragraph 4.7 of his report. See also paragraphs 5.8-5.11. As stated, Mr Dimopoulos says in paragraph 7.1 of his report that his reasoning is based on the adoption of the facts assumed. A number of these are incorrect as indicated. In paragraph 7.2, Mr Dimopoulos states that the plaintiff stepped "onto a damaged and uneven section of a kerb causing her to misstep and fall". Importantly, in paragraph 7.13 of his report, Mr Dimopoulos states that his conclusion that the plaintiff was placed at risk of injury by the defendant in the circumstances, was based on the following: "the reasoning process leading to that concluded opinion consists in the pedestrian hazard created by the damaged kerb in an area where pedestrians would be expected to go, with insufficient means of warning." However, the plaintiff's clear evidence was that she did not realise there was a kerb at all not that she saw there was a kerb but did not realise that it was damaged. Having regard to the other island at the vehicular entrance, the edge was not damaged but deliberately cut away: See Exhibit 1 Part 2.1.3. 2. The defendant submitted that no weight should be given to the report. Very little weight was given to the report in the plaintiff's written or oral submissions. 3. I take into account the views of Mr Dimopoulos in his report. However, having regard to the incorrect assumptions, particularly those relating to the plaintiff observing the kerb and the kerb being "damaged", I must exercise some care in giving the report any real weight. In particular, the court should be wary in placing too much weight on expert evidence regarding the hazardous or unsafe nature of an uneven surface: see Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at [355]; Burwood Council v Byrnes [2002] NSWCA 343 at [16]-[19]; Ryde City Council v Saleh [2004] NSWCA 219 at [9]-[13] and Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 at [105]-[106]. Duty and breach of duty of care 1. In Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [103], Sackville AJA described the duty of care owed by a cleaner to a patron in a shopping centre in the following terms: "The duty owed by Atlantic and Mr Nguyen to patrons of the Centre was not absolute. They were required to exercise reasonable care to detect and remove potential hazards to patrons, including wet patches on the terrazzo floor. The standard to be attained was that to be expected of a cleaner discharging his or her duties of inspection with reasonable diligence and care. A failure to detect a particular hazard did not necessarily involve a breach of that duty. Whether or not it did so depends on the particular circumstances." 1. In Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [7]- [8], McColl JA stated as follows: "Duty of care 7. It was common ground that McDonald's owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the physical state of its land, on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334 (at [45]) per Gummow J. The appellant submitted that Holistic's duty was relevantly identical with McDonald's, a proposition Holistic did not dispute insofar at least as liability to the appellant was concerned. 8. Gleeson JA (with whom Emmett JA and Tobias AJA agreed) addressed the content of the assumption that an entrant uses reasonable care for his or her safety in his pellucid judgment in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (at [159]) as follows: "[159] The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, 'the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case': Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35]." 1. At paragraph 82 in the same case, Barrett JA (with whom Ward J agreed) stated as follows: "Duty of care 82. McDonald's was under a duty to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming on to the premises and that duty included the obligation to take precautions that a reasonable person in the circumstances would have taken by way of a response to the risk that a person may slip on the stairs: Civil Liability Act s 5B; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 at [50]. That duty subsisted, in the present case, in relation to premises visited by many people each day." 1. In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253, Leeming JA (with whom McColl JA agreed) stated as follows at paragraph 53: "53. Finally, the scope of an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety: see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159] and Jackson v McDonald's Australia Ltd at [8]. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a "specific element contained, as a matter of law, in the scope of the ... duty of care"." 1. Based on the principles referred to in these cases, in my view the defendant owed the plaintiff as a customer attending a store controlled by the defendant, a duty to take reasonable care to avoid a foreseeable risk of injury to her arising from the state of the store or its car park over which a customer would traverse, on the assumption as an element contained in the scope of the duty of care, that the plaintiff would exercise reasonable care for her own safety. 2. In Whitton v Dexus Funds Management Ltd [2019] NSWDC 579 I stated as follows in paragraphs 313-316: "313. In paragraphs 49-51 of the Patrick Stevedores case, above, Leeming JA stated as follows: "49. "Negligent" in this context means failure to exercise reasonable care and skill: s 5. It was not disputed that the risk of someone slipping, falling and injuring himself or herself while stepping up into the hut was both foreseeable and not insignificant. Even so, s 5B(1)(c) means that a plaintiff must fail in an action for negligence based on a failure to take precautions unless the plaintiff discharges the onus of showing that a reasonable person in the defendant's position would have taken the precautions. The fact that s 5B(1)(c) is a necessary element of a plaintiff's success in litigation to which it applies is plain on the face of the section, and was confirmed by the High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [34]. 50. As McColl JA observed in Jackson v McDonald's Australia Ltd at [11], the requirement in s 5B(1)(c) reflects the formulation of principle by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 663 that the measure of the discharge of Patrick Stevedores' duty is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. That formulation was approved in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. 51. The essential issue posed by s 5B(1)(c) as to what a reasonable person would have done in response to the risk must be considered prospectively: Adeels Palace Pty Ltd v Moubarak at [31] and [40]. The court's determination of these questions is subject to the limitations imposed by s 5C of the Civil Liability Act, including in paragraph (c) that: "the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."" 314. In Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA (with whom White JA agreed) stated in paragraph 44 as follows: "What precautions against the relevant risk of harm were reasonable in the circumstances is to be determined taking account of s 5B of the Civil Liability Act." 315. It is accordingly important to identify correctly the risk of harm in the present case. 316. In paragraphs 47-48 of Lloyd v Thornbury, above, Gleeson JA stated as follows: "Identification of the risk of harm 47. It is well established that the correct identification of the risk of harm is necessary before "one can assess what a reasonable response to that risk would be": Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 (Dederer) at [59] (Gummow J). 48. In Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [118]-[122], Leeming JA (Basten and Simpson JJA agreeing) emphasised two matters. One is that the risk is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances. The other is that while there may commonly be a range of appropriate formulations of the generality of the risk of harm, ordinarily it is unnecessary and undesirable to define the relevant risk of harm with too much particularity. See also: Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [106] (Barrett JA, Gleeson JA and Tobias AJA)." 1. In my opinion, the relevant risk of harm in the present case was that customers of the Bunnings store walking across the concrete traffic island towards the pedestrian designated entrance of the timber yard having stepped on to the island, would not realise that there was a difference in height and a step down from the island and would fall and thereby injure themselves. 2. In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253, Leeming JA (with whom McColl JA agreed) stated that the measure of the discharge of a defendant's duty is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. That formulation, as his Honour noted, was approved by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. It is established by clear authority that that issue must be considered prospectively and the fact that there are measures that could have been taken by the defendant to divert or diminish the risk that actually materialised, does not necessarily establish breach. It is also assumed that users of the premises will exercise reasonable care for their own safety. 3. Section 5 of the CLA defines "negligence" as a failure to exercise reasonable care and skill. Whether there is negligence in the present case by the defendant as pleaded, must be determined considering ss 5B and 5C of the CLA. 4. These sections provide as follows: "Division 2 Duty of care 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)— (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 1. The plaintiff submits in summary that a reasonable person in the position of Bunnings having regard to the tapering height of the relevant kerb and the difficulty in a customer perceiving the existence and varying height of the kerb in the circumstances, would have taken precautions such as painting the kerb of the island with bright paint to warn of the kerb and the varying height. It was said that the raised concrete island had a number of unusual features being a vertical kerb face on one side of the island and a tapering kerb face on the other side of the island where the fall occurred with variations in height including where there was the cutaway ramp. It was submitted that the variations in height were not readily discernible and posed a hazard. It was submitted the long expansion joints on the island were not visual cues of a step down as there were expansion joints also in the concrete in the carpark. 2. I consider the elements in s 5B of the CLA in the light of s 5C as applied to the present case involving the plaintiff: 1. The risk was foreseeable, that is, it is a risk of which the defendant knew or ought to have known – in my view, it was foreseeable, in the sense of being a risk of which the defendant ought to have known, that a customer of the Bunnings store may have walked across the concrete island in question and not seen or perceived the step down and variation in height of the kerb closer to the entrance. I accept the plaintiff's submission on this issue; 2. The risk was not insignificant – as the Court of Appeal made clear in Bruce v Apex Software Pty Ltd [2018] NSWCA 330 at [26], the question is whether the risk of harm was "not insignificant" and not whether the risk of harm was "not significant". The plaintiff submits that the risk in question was not insignificant. The defendant submits that this was not established and the risk of the plaintiff not seeing the kerb and falling was insignificant. The court had the benefit of the plaintiff's testimony, the testimony of the four witnesses called on behalf of the defendant, the report of Mr Dimopoulos and many photographs in Exhibits A and 1. As stated by Sackville AJA (with whom McColl JA agreed) in Argo, above, great care must be exercised in relying on photographic evidence, particularly in relation to perspective and distance. Here, however, the court had the benefit of the evidence of the various witnesses as to the photographic evidence as well as their own independent observations. I take into account all the evidence I have referred to, including the fact that there were no previous falls recorded or reported as far as the defendant's witnesses were aware. I also take into account that a person crossing the island would have taken a step up to begin with thus alerting them to the potential for a step down. I take into account the varying height of the relevant kerb and the similar colour of the kerb and the roadway beyond. I take into account the regular use of the island by patrons to access the pedestrian designated access to the timber yard. Taking all of these matters into account, in my view the risk of a fall was insignificant in the present case. This was the first time, to the knowledge of the defendant's witnesses, that anyone had fallen as the plaintiff had; 3. Whether a reasonable person in the position of the defendant would have taken the precautions indicated – I consider this issue in the light of the evidence I have already referred to. I take into account the degree of pedestrian traffic which the defendant's witnesses have indicated they observed crossing the island. I take into account the similar colour of the various surfaces and the cutaway and tapering nature of the kerb. However, all the evidence indicates that there were no prior falls at or near the vicinity of the island of which the witnesses were aware. Even taking into account Mr Dimopoulos' view and the "damage" he refers to, in my view a reasonable person in the position of the defendant in the present case would not have taken the precautions pleaded and particularised. This includes painting or otherwise delineating the kerb or preventing people walking across it in particular. I do not accept that the measures indicated in paragraph 7.14 of Mr Dimopoulos' report were steps which a reasonable person in the position of the defendant would have taken. In my view, in the light of the oral evidence and the photographs, the step down from the kerb was obvious to a reasonable person in the position of the plaintiff. The relevant senior employees of the defendant were not aware of any previous falls from the island; 4. The probability that the harm would have occurred if care were not taken – in my view the probability is very low. In my opinion it was not probable at all that a reasonable person exercising care for their own safety, having stepped up onto the island, would not have seen the stepdown from the kerb; 5. The likely seriousness of the harm – a person not seeing the kerb and falling down may involve serious injury to themselves; 6. The burden of taking precautions to avoid the risk of harm – there was not a significant burden on the defendant in taking the specific precautions which Mr Dimopoulos refers to in paragraph 7.14 of his report. This is in the plaintiff's favour. I also take into account the particulars of negligence in paragraph 15 of the Statement of Claim and the response to the request for further and better particulars which was provided by the plaintiff's solicitors dated 14 December 2019; 7. The social utility of the activity that creates the risk of harm – it is important that people have safe access to shopping stores including in the car park. This is a relevant factor; 8. The risk of injury in falling from the kerb is in my view from all the evidence obvious; 9. Taking into account all of the matters I have indicated, in my view a reasonable person in the position of the defendant in the present case would not have taken any of the precautions recommended or pleaded. There were no prior accidents recorded in evidence involving the kerb. Any person mounting the kerb closer to the disabled car spot would have reasonably expected the possibility of there being a step down. All of the defendant's witnesses said that the kerb was obvious to them. I take into account that they worked there, had crossed it many times, and when they examined it after the fall, did so with knowledge that a fall had occurred. I take into account the similar colour of the areas and the materials used. There was simply no history in evidence of any falls involving the area. In addition, I take into account my own views of the photographs in the light of the oral evidence recognising that care must be exercised in doing so. I also note the variation to the kerb by the design cutaway and the effect this has on appearance of the kerb face. In my view, the step down is readily apparent on all the evidence. 1. Taking into account all of the matters I have set out above, in my view there was no breach of duty of care by the defendant. I have considered each of the particulars of breach in the Statement of Claim and the report of Mr Dimopoulos in coming to that conclusion. I have also considered the various detailed submissions made by the plaintiff in favour of there being a breach in the present case. Obvious risk 1. In paragraph 12 of the Defence filed 20 December 2018, the defendant pleads that if there was a risk, which it denies, it was an obvious risk. Although no specific reference is made in the Defence, this appears to be a reference to ss 5F, 5G and 5H of the CLA. These sections were relied on by the defendant in its written submissions. 2. Sections 5F, 5G and 5H of the CLA provide as follows: "Division 4 Assumption of risk 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if— (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection." 1. In my view, any reasonable person in the position of the plaintiff on the day of the accident, would have been careful where they were walking in the carpark and its surrounds. In considering whether the risk was obvious, I take into account the photographs (while exercising care in reviewing them), the evidence of the plaintiff and the evidence of the defendant's witnesses as to their observations and the history of falls known to them. In my view, any reasonable person exercising care for their own safety, and having stepped up onto the island, would be carefully looking for a step down. 2. In my view, the risk in the present case of there being a kerb and the plaintiff falling if she did not exercise reasonable care for her own safety was an obvious risk within s 5F of the CLA as it would be obvious to a reasonable person in the position of the plaintiff taking care for their own safety. Using the words of Macfarlan JA (with whom Basten JA agreed) in Council of the City of Sydney v Bishop [2019] NSWCA 157 at [29]: "There was nothing in the circumstances of the present case that rendered it necessary for the appellant to draw further attention to the step constituted by the concrete kerb. It was a hazard of an ordinary character that a person walking through the pedestrian precinct could be expected to encounter and could be expected to watch out for." His Honour quoted Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 at [355] with approval and stated: "…occupiers are entitled to assume that people will take care not to trip on the multitude of obstacles, both large and small, that are likely to be in their paths in walking from one place to another. Pedestrians are not entitled to assume that they are traversing "a level playing field" (ibid at [355])": at [28]. 3. Accordingly, as the risk created in the present case was an obvious risk within s 5F of the CLA, there was no proactive duty on the defendant to warn the plaintiff of the obvious risk. Causation 1. The principles in relation to causation which are applicable under the CLA are set out in ss 5D and 5E of the CLA which are as follows: "Division 3 Causation 5D General principles (1) A determination that negligence caused particular harm comprises the following elements— (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent— (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 1. Therefore, the plaintiff has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings. I refer to the relevant principles in Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18] and Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]. As has been held by the High Court, the determination of factual causation under s 5D of the CLA involves the application by the court of the "but for" test of causation. This involves a determination that in accordance with the section, negligence was a necessary condition of the occurrence of harm. That involves a determination on the balance of probabilities that the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: Strong v Woolworths Limited, above, at [18]. In the present case, that involves a determination whether but for any breach of duty of care, any loss or damage suffered by the plaintiff would not have occurred. There was no suggestion in the submissions made that the present case was an exceptional one for the application of the approach referred to in s 5D(2). See Lloyd v Thornbury, above at [82]. 2. If, contrary to my view as to the breach issue, the island should have been roped off, a warning sign or bollards placed or the kerb painted yellow like the kerb of the main entry, I think it is more likely than not that the fall would not have occurred. Thus causation would have been established on the "but for" test applicable. Contributory negligence 1. The defendant has pleaded contributory negligence against the plaintiff: paragraph 13 of the Defence. The particulars of contributory negligence relevantly include a failure to take adequate care for the plaintiff's own safety, failing to maintain any or any proper lookout, failing to observe her surroundings and failing to perceive and take steps to avoid an obvious risk. 2. Sections 5R and 5S of the CLA provide as follows: "Division 8 Contributory negligence 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose— (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated." 1. In Lloyd v Thornbury, above, Gleeson JA stated as follows at paragraphs 92-94: "92. The question of whether a person has been guilty of contributory negligence is to be determined objectively – whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing). 93. Section 5S provides that, when apportioning responsibility, a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence. 94. The principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury: s 5R. Accordingly, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk: Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241 at [14]- [15] (Basten JA)." 1. Accordingly, an analysis has to be made objectively whether the plaintiff has taken that degree of care for her safety that an ordinary reasonable person would take in the circumstances. This involves the analysis set out in ss 5B and 5C of the CLA. The existence and extent of a plaintiff's contributory negligence is, according to Gleeson JA, to be assessed by reference to the risk of harm which is the subject of the plaintiff's claim for damages in the light of the precautions that a reasonable person in the plaintiff's position would have taken against that risk. 2. The plaintiff submits there was no contributory negligence. The defendant submits that there was and the plaintiff's damages should be reduced by 50%. 3. If, contrary to my analysis, there was a breach of duty of care by the defendant as pleaded, in my view the defendant has established contributory negligence in the present case. The plaintiff walked around the end of the concrete island just before the accident. In my view, a reasonable person would have seen in doing so that there was a concrete island. The plaintiff took a step onto the concrete island. In my view, a reasonable person would expect that there was a real possibility that there was a step down from the concrete island. In my view, applying s 5B of the CLA, the risk was foreseeable, the risk was not insignificant, a reasonable person in the position of the plaintiff would have been looking carefully for the possibility of a step down, there was likely serious harm which would result if care was not exercised, and a minimal burden was placed on the plaintiff in being cautious. The kerb was in my view apparent as discussed above. This was in my view no mere inadvertence. 4. Contributory negligence is therefore established. A reasonable person in the position of the plaintiff having regard to what the plaintiff knew or ought to have known, would have exercised care near the entrance to the timber yard and perceived the kerb and avoided the accident. 5. Taking into account all the circumstances, I would reduce any damages awarded by 20% to take account of the contributory negligence. Damages Introduction 1. I have found no breach of the duty of care pleaded. In case I am in error, I will consider the question of damages. Damages issues are not straightforward in this case. 2. The parties' submissions as to damages were recorded in written submissions (as varied by oral submissions) and are set out in the following table. Head of damage Plaintiff Defendant $263,000-$329,000 (40% $43,000 (25% of a Non-economic loss to 50% of a most extreme most extreme case) case) Past out of pockets $2,782.35 (agreed) $2,782.35 (agreed) As charged by Mr Bradley Nil as previously Past lawn mowing from – allow $60 per week in provided by daughter September 2019 warmer weather and $60 before accident per month in cooler weather Future out of pockets $23,644.50 $5,000 (buffer) Past gratuitous domestic assistance $59,797.67 Nil Future gratuitous domestic assistance Nil Nil Future commercial assistance $287,190.41 $10,004.57 Contributory negligence Nil 50% $636,414.93/$702,414.93 $60,786.92 ÷ 2 = Total plus lawn mowing by $30,393.46 Mr Bradley in past 1. I consider the various heads of damage claimed having regard to the medical evidence and the evidence given by the plaintiff and her daughter Melinda Baker in the light of the two reports of the occupational therapists. 2. There were widely inconsistent opinions expressed by the plaintiff's retained occupational therapist Ms Skibby and the occupational therapist retained on behalf of the defendant, Ms Hammond. Neither was required for cross-examination. Non-economic loss 1. The claim is governed by the CLA. 2. Under s 16(1) of the CLA, no damages may be awarded for non-economic loss unless its severity is at least 15% of a most extreme case. In s 3 of the CLA, "non-economic loss" is defined as meaning any one or more of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. 3. The plaintiff had scarring as a result of her operations: see paragraph 4.2 of Ms Skibby's report and the photographs at Exhibit A page 67. The plaintiff submitted that the injury should be assessed at 40%-50% percent of a most extreme case. The defendant submitted that it should be 25% percent of a most extreme case. An assessment must be made of the severity of the non-economic loss percentage of a most extreme case having regard to the findings in relation to the plaintiff: Lloyd v Thornbury [2019] NSWCA 154 at [162]. An assessment under s 16 of the CLA involves matters of impression and estimation having regard to the plaintiff's injury and its consequences in the light of the evidence. It is effectively an evaluative assessment: Lloyd v Thornbury at [168]-[169]. 4. The plaintiff was seriously injured in the accident. She spent six days in hospital. She had an open procedure. For a period of about three months she was unable to weight bear, totally or partially. She has suffered ongoing pain, restriction of movement and a loss of amenities of life by being unable to walk on uneven ground without danger of falling over and being unable to walk on the sand at the beach. She had the further procedure on 20 November 2018. She has residual operation scars. She sometimes uses a walking stick and has an altered gait. There is no evidence that the accident has caused any loss of expectation of life. Any loss in this regard was limited to the effects of the plaintiff's diabetes. The injury was limited to the plaintiff's left foot and ankle. Overall, the medical evidence establishes that the plaintiff has suffered a painful and restrictive injury which continues to cause her pain and likely progression of osteoarthritic changes in the future. 5. The plaintiff submits it is a very serious injury with ongoing restrictions and pain. 6. The defendant points to the plaintiff's ability to undertake many domestic tasks, to look after her grandchildren and to undertake holidays and other enjoyable activities. 7. Taking into account all the evidence and the factors I have referred to above, I assess the plaintiff's severity of non-economic loss as a proportion of a most extreme case as being 28%. This gives rise to a figure of 14% of the maximum amount that may be awarded for non-economic loss. The maximum amount is $658,000 from 1 October 2019: Civil Liability (Non-economic Loss) Amendment Order 2019. The figure of 14% of $658,000 is $92,120. This is reduced to $92,000 in accordance with s 16(4) of the CLA. I therefore allow $92,000 under this head. Past out-of-pocket expenses 1. Past out-of-pocket expenses have been agreed by the parties in the sum of $2,782.35. I allow this sum. 2. A claim is made by the plaintiff for past lawn mowing/gardening expenses. There is an issue in relation to this head of damages. 3. The plaintiff gave evidence that she did the lawn mowing and gardening at her house prior to the accident: T59.27, T109.44 and T157.30. The plaintiff said that she had not returned to undertaking the lawn mowing/gardening since the accident: T78.20. She stated that her daughter Melinda did the mowing and gardening and in summer this could take up to two hours: T94.14. Since about September/October 2019, the plaintiff has paid a third party, Mr Bradley to do these tasks: T94.38. 4. Different evidence was given by the plaintiff's daughter Melinda in her oral evidence. Melinda confirmed that she did lawn mowing for her mother after the accident: T166.44. However, in cross-examination Melinda gave evidence that she undertook the lawn mowing and gardening duties at her mother's house prior to the accident for payment: T168.5-.34. She also gave evidence that she did the gardening for her mother before the accident: T169.17. Ms Baker gave evidence that she was paid about $50 by her mother before the accident for lawn mowing: T168.37. This was not paid every time but when she needed money she asked for it: T168.40. 5. There is thus a significant difference in the evidence of the plaintiff and her daughter, Ms Baker. The plaintiff's evidence obviously assisted her damages case. In my view, the daughter Melinda's evidence is more likely to be correct on this issue and I prefer it. Ms Baker appeared to be straightforward and direct on the issue and she had nothing to gain by the evidence she gave. Therefore, the position prior to the accident was that Melinda did the lawn mowing and gardening for about $50 per occasion but was not paid every time and this continued after the accident. What occurred therefore was a continuation of a domestic arrangement sometimes involving the payment of money. No additional domestic or commercial services were provided by Ms Baker to the plaintiff in relation to lawn mowing and gardening after the accident. 6. The evidence was that Mr Martin Bradley now did the gardening and lawn mowing and had done so from about September/October 2019. Ms Baker said that this was because both the plaintiff and she were "getting old": T169.25. 7. The defendant submits these paid services do not fall within s 15(2)(c) of the CLA. The plaintiff submits they do. 8. In my view, it was reasonable for the plaintiff to engage Mr Bradley to do the gardening/lawn mowing from September 2019 in the light of her injury and the other help provided to the plaintiff by Ms Baker. There was some suggestion that the payment could have altered from $50 to $60 per occasion. It was unclear when this change occurred and I will allow $60. Looking at the position from 1 September 2019 to May 2020, I would allow 27 occasions of lawn mowing/gardening assistance at $60 per occasion totalling $1,620. The number of occasions takes into account that different frequency is needed during colder months compared to warmer months. In my view, each of the requirements in s 15(2) of the CLA is satisfied. The fact Melinda Baker did the services prior to the accident is not decisive. The plaintiff cannot do them due to her injury in the accident. Melinda Baker is getting older and assists the plaintiff in other domestic tasks. A third party has reasonably been retained to provide them in those circumstances. Future out-of-pocket expenses 1. The plaintiff claims numerous amounts for likely future out-of-pocket expenses. 2. One claim by the plaintiff was for future lawn mowing and gardening services. This could be considered either under a future out-of-pocket expense or for future commercial assistance. I will consider it here as a future out-of-pocket commercial expense. 3. The plaintiff gave evidence that in relation to gardening although she might pull out "the occasional weed" she has Mr Bradley now provide gardening services. I find that it is reasonable for the plaintiff to engage Mr Bradley to provide future commercial gardening and lawn mowing services, having regard to Melinda's involvement in assisting the plaintiff with gratuitous attendant care services in relation to cleaning, and the plaintiff's injuries as a result of the accident. 4. In relation to handyman matters, I allow a buffer of $1,000 in the future for occasional handyman tasks. I do not accept Ms Skibby's opinion that a greater sum is needed. I note the plaintiff's abilities as shown on page 28 of Ms Hammond's report. It is likely the plaintiff would have engaged a tradesman or handyman for more complex tasks even if the accident had not occurred. Also the plaintiff would have likely needed someone to assist her to provide such services from about age 80 even if she had not been injured. 5. In relation to Mr Bradley and future commercial lawn mowing/gardening, I allow $60 weekly for 16 weeks during the warmer weather: 16 x $60 = $960. I also allow $60 per month for the remaining eight months of the year: 8 × $60 = $480. These two amounts total $1,440. This amounts to $27.70 weekly ($1,440 ÷ by 52 = $27.70). Ms Skibby in her report allowed one hour a week for the future: paragraph 5.2.2 and paragraph 7.2. Ms Hammond in her report also supported the reimbursement of the cost of lawn mowing up to 20 sessions per annum: paragraph 4.2.5. 6. In my view, the amount that I have allowed above is consistent with the plaintiff's oral evidence which is more likely to be correct as to frequency. The amount allowed is slightly in excess of the amount recommended by Ms Hammond. I accept the evidence that the plaintiff would have real difficulty resuming lawn mowing and gardening duties: see paragraph 4.3.2 of Ms Hammond's report. This is consistent with the medical evidence. Ms Hammond states that she is currently paying $50 per session, but the plaintiff's evidence was $60 and I prefer the plaintiff's evidence. I accept Ms Hammond's recommendation to this being provided to age 80 at which point the plaintiff would likely have needed help in any event due to age and comorbidities. The plaintiff has had a number of problems with her back, shoulders and left knee and a termination of the activities at about age 80 is in my view appropriate. 7. I accordingly allow gardening and lawn mowing assistance in the future for 11 years. I thus award a sum of $12,301.57 under this head (multiplier 444.1 on the 5% tables x $27.70 weekly = $12,301.57). 8. In her report, Ms Skibby recommends substantial future care assistance for the plaintiff on a commercial basis: paragraph 7.2. This is considered further below. For the reasons given below, I do not consider on the evidence that the plaintiff needs commercial assistance in the light of the plaintiff's evidence and the evidence of her daughter except on a buffer basis. The plaintiff's daughter Melinda seems more than willing to provide the plaintiff with any domestic assistance she needs. The plaintiff's daughter appeared to be in good health. There was no evidence of her having any health issues. 9. Having regard to the age of the plaintiff's last two grandchildren living with her, and the plaintiff's evidence about her present abilities, I see no need arising from the accident for future childcare assistance. The plaintiff's grandchildren residing with her are now 12 and 13 years of age. The plaintiff mentioned no such need in her oral evidence. I agree with the opinion of Ms Hammond on this issue that no allowance for future childcare should be made. I reject Ms Skibby's opinion to the contrary in the light of the evidence. 10. It seems to be accepted that the requirements in s 15 of the CLA are different and separate from those in s 15B of the CLA, apart from the situation of common benefits in s 15B(10): White v Benjamin [2015] NSWCA 75 at [69]-[75] per Basten JA (with whom Meagher JA agreed). This is consistent with the defendant's submissions. 11. I therefore turn to consider the rehabilitation and treatment recommendations of Ms Skibby in paragraph 7.3 of her report and the equipment recommendations in paragraph 7.4 of her report. 12. Ms Hammond in her report comes to the view that other than in relation to podiatry and relevant shoes, the other matters are generally not recommended: report paragraph 2.1.2. I will consider each of the recommendations of Ms Skibby: 1. Dietician: in paragraph 7.3.1, Ms Skibby recommends the plaintiff seeing a dietician to assist in weight control as she is much less mobile as a result of her injuries. Ms Hammond does not support this: joint report transcript and report paragraph 2.1.2. Ms Hammond notes in the joint transcript that the plaintiff was previously seeing a dietician as part of diabetes management and it was reasonable for the dietician to address weight management in this consultation. I prefer the opinion of Ms Hammond on this issue. The plaintiff gave evidence that she was seeing a dietician prior to the accident. She was cross-examined in relation to her weight which showed that she was heavier on occasions before the accident. It is clear that the plaintiff needs ongoing dietician assistance from time to time as part of managing her diabetes. I do not consider that an amount for a dietician is reasonably caused by the plaintiff's injury in the accident; 1. Podiatrist: Ms Skibby makes recommendations about the plaintiff seeing a podiatrist: paragraph 7.3.3 of her report. Ms Hammond makes no allowance for this. Ms Hammond in the joint transcript defers to a podiatrist but notes that prior to the accident the plaintiff was seeing a podiatrist as part of her diabetes management. In my view, a lump sum should be allowed for this treatment contrary to the specific recommendations of Ms Skibby. This will allow a podiatrist to review the plaintiff where necessary relating to the foot injury. I would allow $500 under this head. This takes account of the fact that the plaintiff also consulted a podiatrist before the accident on diabetes issues; 1. Pool membership: Ms Skibby recommends an allowance for pool membership for 80 visits per year at $328 per year. Ms Hammond agrees with Ms Skibby's recommendation that the plaintiff should be able to access a heated pool environment where she resides: Exhibit A page 110. However, at T35.44, the plaintiff confirmed what she said to Mr Tisdell, that pool exercises were not beneficial as they tended to irritate the injury to her foot. In the light of this somewhat inconsistent evidence, and in the light of the opinions of the occupational therapists, in my view the appropriate way to approach the pool membership issue is to allow a lump sum amount of $500 for the plaintiff to utilise where she would find occasional visits to a heated pool of assistance, particularly if her condition progresses with more arthritis in the ankle; 1. Beach wheelchair: at paragraph 7.4 of her report Ms Skibby recommended the provision of a beach wheelchair. In the joint meeting, the two occupational therapists agreed that the purchase of a beach wheelchair was not necessary: Exhibit A page 105; 2. Orthotics and shoes: on page 8 of his report, Dr Powell notes that the plaintiff does have considerable stiffness at the joint and continued use of arch support orthoses will assist her and modified shoe wear may also assist her in mobilising. In the occupational therapists' joint conclave, both occupational therapists agreed with the medical opinion of Dr Powell and Ms Hammond deferred to medical opinion and podiatry opinion as to the frequency of replacement of orthotics. In his report, Dr Cromer expresses the opinion that the plaintiff's life expectancy of 19 years would be reduced by about four years because of her diabetes. I accept the opinion of Ms Skibby set out in paragraph 7.4 of her report relating to orthotics and the supply of shoes in the light of the opinion of Dr Powell. Ms Hammond does not disagree with this. Using a life expectancy of 15 years for the plaintiff, I arrive at the amount of $9,235.20 under this head (annual cost of orthotics and shoes: $864.98 ÷ 52 = $16.64 weekly. Using a multiplier of 555 for 15 years on the 5% tables times $16.64 = $9,235.20); 1. Bathroom modification: Ms Skibby supports a bathroom modification for the plaintiff for the reasons given in her report: paragraphs 7.4 and 8.6. In the joint consultation, Ms Skibby continued to support the modification (Exhibit A pages 106-107). Ms Hammond does not support it: Exhibit A page 107. It was not clear from the plaintiff's submissions whether this amount was claimed. In my view, Ms Hammond's opinion should be preferred on this issue. First, the plaintiff can currently transfer in and out of the shower over the sitting bath. There is no suggestion the grandchildren cannot use the sitting bath when required. In addition, the plaintiff has a further shower down a ramp off her garage which she used when she first came out of hospital. There does not seem to be any strong reason why the plaintiff could not use this shower now. I am not persuaded of the need for the bathroom modification in the light of these matters. Ms Hammond allows $700 for the removal of the shower screen door and for a vertical grab rail being installed on the bathroom wall. In my view, this is a means of assisting the plaintiff in the light of her limitations and should be allowed. I accordingly allow $700. 1. Physiotherapy: Dr Bodel expressed the opinion that the plaintiff would require some intermittent physiotherapy on an as needs basis: Exhibit A page 14. Dr Powell expressed the opinion that further physiotherapy was unlikely to improve the range of motion at the ankle and hind foot: page 8 of his report. The plaintiff told Mr Tidsell that physiotherapy was not beneficial as it tended to irritate her foot: T137.40. Dr Bodel noted in one report that the plaintiff has an increased risk of post-traumatic osteoarthritis: Exhibit A page 13. In his last report he was of the view that this would progress over time: Exhibit A page 16. Balancing all of the evidence on this issue, in my view there may be a need for some physiotherapy consultations on an as needs basis as the plaintiff's ankle becomes increasingly osteoarthritic over an uncertain period. As the position is somewhat unclear, I would only allow $500 as a buffer under this head. I allow $500. 2. Orthopaedic review/MRI arthrogram/arthroscopy/future surgery: in his various reports, Dr Porteous refers to the plaintiff reasonably needing orthopaedic specialist review, an MRI arthrogram and possible future surgery: Exhibit A page 40. In his 3 April 2020 report, Dr Bodel saw no indication clinically for any interventionist treatment including no definite need for surgery: Exhibit A page 14. Dr Powell saw no need for any further direct management: report Page 8. In my view, the opinion of the orthopaedic surgeons should be preferred to the opinion of Dr Porteous who is an occupational physician, on issues relating to orthopaedic review and orthopaedic procedures and surgery. I accordingly would allow nothing under this head. This equally applies to the corticosteroid injections under radiological guidance recommended by Dr Porteous: Exhibit A page 40. None of the orthopaedic surgeons recommend this; 1. Ongoing pain relief long-term: Dr Porteous recommends an allowance of $35 a month for pain relief for the plaintiff long-term: Exhibit A page 40. Dr Bodel makes no reference to this in his 3 April 2020 opinion: Exhibit A page 14. Dr Powell does support analgesic relief on an as needs basis: page 8 of his report. In my view, the allowance recommended by Dr Porteous is fairly modest in the light of the plaintiff's reported ongoing pain and I accept it. This totals $4,484.40 for the remainder of the plaintiff's life ($35 per month x 12 months = $420 ÷ 52 = $8.08 per week. Multiplier 555 × $8.08 = $4,484.40). 1. Occupational therapist assessment: Dr Porteous recommends the plaintiff needing an occupational therapist assessment of her function and the ergonomic requirements at home. This has been provided in the two occupational therapy reports. I would allow nothing under this head; 2. General practitioner visits: Dr Porteous would allow general practitioner visits two to four times a year in the long term: Exhibit A page 40. Dr Bodel recommends the plaintiff seeing her general practitioner every three months to monitor her progress: Exhibit A page 14. Dr Powell seems to contemplate general management of the plaintiff's condition. In my view, two annual visits at $110 per visit (Dr Porteous Exhibit A page 40) to the plaintiff's general practitioner are warranted for the remainder of the plaintiff's life to assess and manage her position. The plaintiff also requires regular management and review for her diabetes by her general practitioner. There would accordingly be some visits for this purpose where ankle problems could also be discussed. This amounts to $2,347.65 (2 × $110 annually = $220 ÷ by 52 = $4.23 weekly. Multiplied by a multiplier of 555 for the plaintiff's life expectancy of 15 years = $2,347.65). 1. Accordingly, in total I would allow an amount for future out-of-pocket expenses excluding gardening and lawn mowing in the sum of $19,267.25. Past domestic assistance 1. The plaintiff makes a considerable claim for past gratuitous attendant care services and damages for the loss of the capacity to provide domestic services to her grandchildren. Sections 15 and 15B of the CLA provide 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. (4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed— (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for— (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that quarter, or (ii) in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4)(a) or (b), as the case requires. (6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services. 15B Damages for loss of capacity to provide domestic services (1) Definitions In this section— assisted care, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously)— (a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements), (b) if the dependant is a minor (but without limiting paragraph (a))—any care that is provided to the dependant by a person other than the claimant where— (i) the person is a parent of the dependant (whether derived through paragraph (a)(i) or (ii) of the definition of dependants in this subsection, adoption or otherwise), and (ii) the care includes the provision of accommodation to the dependant. dependants, in relation to a claimant, means— (a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises— (i) the person to whom the claimant is legally married (including a husband or wife of the claimant), (ii) a de facto partner of the claimant, Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987. (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), (iv) any other person who is a member of the claimant's household, and (b) any unborn child of the claimant (whether derived through paragraph (a)(i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time. gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid. (2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that— (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)—the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants— (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. Note. Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant's dependants. (3) If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2)(c)(ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may— (a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2)(c)(i), disregard the week if assisted care was (or will be) provided during that week, and (b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2)(c)(ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period, but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total. (4) Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant's capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved. (5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, a court— (a) may only award damages for that loss in accordance with the provisions of this section, and (b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity. (6) Circumstances when damages may not be awarded The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant's capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity. (7) A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant's loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity. (8) If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants while the claimant is a participant in the Scheme if (and to the extent that)— (a) the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and (b) the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant's dependants. (9) Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that)— (a) the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and (b) an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act. (10) Damages may not be awarded if they can be recovered as damages for attendant care services Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that)— (a) the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and (b) the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant's dependants being provided with the domestic services that the claimant has lost the capacity to provide. (11) Determining value of gratuitous domestic services In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account— (a) the extent of the claimant's capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and (b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and (c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages." 1. Under s 15 of the CLA, gratuitous attendant care services damages are limited. No damages may be awarded to a plaintiff for gratuitous attendant care services unless the court is satisfied that there was a reasonable need for the services to be provided, the need has arisen solely because of the injury to which the damages relate, the services would not be provided to the plaintiff but for the injury and the services are provided for at least six hours per week and for a period of at least six consecutive months: s 15(2) and (3) of the CLA. 2. See also s 15B(2)(c) of the CLA. Section 15B also requires services in relation to children or grandchildren to be provided for at least six hours per week for at least six consecutive months. As stated above, White v Benjamin [2015] NSWCA 75 seems to hold that s 15(3) and s 15B(3) are separate requirements for the two different types of care. 3. As held by the Court of Appeal in Samco Pty v Wurth [2015] NSWCA 117 at [91] an assessment of past domestic services is to be made on a weekly basis and not an average over many weeks. Looking at a plaintiff's damages in terms of periods having regard to her medical condition is however permissible. 4. The two occupational therapists in their reports looked at past domestic services in terms of periods: see paragraph 1.4.1 of Ms Skibby's report and paragraph 2.2.1 of Ms Hammond's report. There are substantial differences of opinion in relation to these periods. The opinions have to be seen in the light of the plaintiff's evidence that she was in hospital for about six days (T72.37), was totally non-weight weight bearing for about six weeks (T73.21), and then was only partially weight bearing for a considerable period. The plaintiff stated that she had an arrangement with an entity called ComPacks who provided homecare for about six weeks (T88.30) and that her daughter Melinda moved into her house and stayed for about three months: T89.27. In the week after the plaintiff was in hospital, her daughter Michelle came to look after the grandchildren (T88.28). 5. The plaintiff gave evidence that after Melinda moved out, the plaintiff undertook more duties and Melinda came about once a month for a thorough clean where she stayed about two to three hours: T81.1-.10. A grand-daughter also helped for about 20 minutes doing vacuuming per week: T81.14; T157.1. This grand-daughter also provided other domestic services for a period of about two hours per day: T92.27. The granddaughter also provided domestic household services, however, prior to the accident: T156.27-.34 and T171.9-.27. As is discussed further below, the plaintiff's daughter Melinda suggested that the thorough clean she conducted after the accident took longer and was about one day or even possibly two days every month with other intermittent assistance from between an hour to three to four hours as required: T165.14 cf T174.18. 6. The issue for the court is whether the plaintiff has satisfied the requirements for intensity and duration set out in ss 15 and 15B of the CLA. That is, that gratuitous attendant care services or services to third parties who are dependents within s 15B were provided for at least six hours per week and for a period of at least six consecutive months. 7. The evidence establishes that Melinda was present in the plaintiff's house providing assistance for about three months after the plaintiff returned from hospital. Accordingly, the court must focus on the period from the day of the accident until about three months after 8 November 2017 (when Melinda came to stay), say to 8 February 2018. It must also consider what changed after Melinda left the plaintiff's house. It should also be noted that Ms Melinda Baker gave evidence that she was away from Port Macquarie for 12 weeks in 2018 and for six months in 2019: T174.1-.9. 8. I find, doing the best I can on the limited evidence, that: 1. The plaintiff's grand-daughter Magenta assisted the plaintiff with domestic tasks for about an hour per day prior to the accident: T156.18-.34. After the accident, the grand-daughter assisted for about two hours per day: T92.27; 2. The plaintiff's daughter Melinda assisted the plaintiff after she left the plaintiff's house. I will consider the degree of assistance below; 3. The assistance provided by the daughter after the accident with domestic and personal duties would not have been provided but for the plaintiff's injuries in the accident and it was reasonably needed; 4. The additional assistance provided by the plaintiff's grand-daughter Magenta after the accident would not have been provided but for the accident and it was reasonably needed; 5. The grand-daughter Magenta left the plaintiff's house at the beginning of 2018: T156.2; 6. There is no evidence whether anyone took up all of Magenta's additional assistance after the accident. However, I find that the plaintiff's other grand-daughter has undertaken the 20 minutes of vacuuming when Magenta left: T157.1. This was done by Magenta before the accident: T156.29. 1. I therefore consider the period from the day of the accident to 8 February 2018 and then the period after this date. The degree of assistance should be considered for the following periods: 1. 25 October 2017 – 30 October 2017: during this period the plaintiff was at Port Macquarie Hospital as an inpatient. She had three grand-children at home. There is no direct evidence as to who assisted in this period in relation to the grand-children. The plaintiff's daughter Michelle assisted when the plaintiff came home and she probably assisted when the plaintiff was in hospital in relation to the grand-children but there is no direct evidence on the issue, including as to the time of any assistance. Ms Skibby allows nothing for this period: Exhibit A page 86. Ms Hammond allows 40 hours for a week of childcare. I accept Ms Hammond's opinion in relation to this period which is logical and can be inferred from the later help provided and the ages of the children. Forty hours of childcare is allowed. However this does not satisfy the duration requirement under s 15B(2)(c) of the CLA. Unless those services were provided for a period of at least six consecutive months no allowance can be made. This will be considered further in the later periods; 2. 30 October 2017 - 7 November 2017: The plaintiff's daughter Michelle assisted in this period with care of the plaintiff, domestic duties and childcare assistance: T88-89 especially at T88.27. Ms Skibby's allowance for this period was 47.25 hours per week. Ms Hammond allows a lesser amount due to the ComPacks assistance. Overall, I prefer the detailed reasoning for this period in Ms Skibby's report, subject to an allowance for the ComPacks assistance. Taking into account the ComPacks assistance provided to the plaintiff, I would reduce the hours allowed to 40 hours per week, consisting of 10 hours of personal care, 20 hours of domestic assistance and 10 hours of childcare assistance/child transport; 3. 8 November 2017 (T89.17) – 20 December 2017: Ms Skibby allows 47.25 hours per week for this 6.29 week period. Ms Hammond allows a more limited period and amount taking into account the assistance of ComPacks, more limited domestic assistance and childcare assistance. The plaintiff gave evidence that she preferred the care of her daughter and her more thorough cleaning. I accept that evidence. I accept the evidence that Melinda was helping substantially in this period. I find that Magenta was providing about one hour per day of required additional assistance in this period. Having considered the two occupational therapy reports, I prefer the detailed opinion of Ms Skibby on this issue as being more consistent with the plaintiff's evidence and the severity of her injury particularly as she was totally or partially not weight bearing for over three months. I allow the amount recommended by Ms Skibby reduced to 40 hours per week because of the ComPacks assistance; 4. 20 December 2017 – 8 February 2018: There are different opinions of Ms Hammond and Ms Skibby in relation to the hours. Ms Skibby allows a greater number of hours of assistance and childcare than Ms Hammond. Magenta was still assisting in this period. Having regard to the plaintiff's evidence and the analysis of the two occupational therapists, I prefer the opinion of Ms Skibby for the period I have indicated as being more consistent with the level of the assistance required by the plaintiff due to her injuries. Thus I allow 28 hours per week for the period indicated as set out in Ms Skibby's report: paragraph 7.1 Exhibit A page 86; 5. 9 February 2018 – 19 November 2018: By this time on the evidence, the plaintiff's daughter Melinda had left the plaintiff's residence to return to her own residence. She only came around on an intermittent basis as the plaintiff required and undertook a "deep clean" once a month with some irregular additional assistance as needed: T165.14. The plaintiff was able to drive. Her two younger grandchildren were also assisting with miscellaneous small domestic duties. Magenta had left the plaintiff's house: T155.42-T156.2. The evidence establishes assistance by the plaintiff's daughter for about 2 hours per week. The younger grand-daughter provided very limited assistance with vacuuming per week. There is no persuasive evidence childcare was still provided or needed by anyone. No such need was mentioned by the plaintiff in her oral evidence. Accordingly, in the light of the above analysis, I am not satisfied that the intensity and duration requirements for attendant care services or care services to the plaintiff's grandchildren under ss 15 and 15B of the CLA are satisfied for this period. Even taking the plaintiff's daughter's evidence at its highest, an amount of at least six hours per week has not been established. I reject Ms Skibby's recommendations to the contrary. Contrary to the plaintiff's submissions, I prefer the evidence of the plaintiff and Ms Melinda Baker which was subject to cross-examination and was thus tested; 6. 20 November 2018 – 4 December 2018: The plaintiff had her plate and screws removed on 20 November 2018. It seems to me that the plaintiff would clearly have required additional assistance in this period and possibly childcare assistance. However, there was no evidence that the intensity or duration requirements under s 15B were satisfied or that the intensity and duration requirements under s 15 were satisfied. I would therefore allow no amount for this period. The figures set out in Ms Hammond's report should be accepted; 7. 4 December 2018 – date of trial: Again, the evidence did not satisfy me that the intensity and duration requirements of s 15 and s 15B were satisfied. Ms Skibby's recommendations for this period do not appear to be established on the plaintiff's oral evidence or Ms Melinda Baker's oral evidence. It seems on the evidence of the plaintiff that about one hour per week of assistance was provided gratuitously by Melinda in this period. On Melinda's evidence about two to three hours of gratuitous assistance was provided by her to the plaintiff per week in the period: cf T174.18. This does not satisfy the requirements of intensity and duration in ss 15 or 15B. I reject the evidence of Ms Skibby for the period from 4 December 2018 as being inconsistent with the oral evidence of the plaintiff and Ms Melinda Baker which I prefer as it was tested in cross-examination; 8. Conclusion: Whilst the intensity requirement of both sections is satisfied until 8 February 2018, the duration requirement is not satisfied for any relevant period of at least six consecutive months. The period of 25 October 2017 to 8 February 2018 is less than 6 months. Therefore the claims for past services under ss 15 and 15B of the CLA are rejected. Future domestic assistance 1. Very substantial sums were claimed in the occupational therapist report of Ms Skibby for future domestic assistance for the plaintiff. Very limited future assistance is recommended by Ms Hammond which does not satisfy the intensity requirement in s 15: Hammond report page 33. 2. The plaintiff gave evidence that she could undertake most aspects of domestic duties presently, apart from more demanding cleaning duties: T79.10-.18. The plaintiff's evidence was that her daughter Melinda and her grand-daughter did the inside cleaning and vacuuming which she could not do: T78.37-T79.8. 3. The domestic assistance provided by the daughter Melinda was, according to the plaintiff, provided about once a month for two to three hours: T81.1-.10. The vacuuming was provided by the plaintiff's grand-daughter for about 20 minutes per week: T81.12-22. This was done by another grand-daughter prior to the accident. The plaintiff's daughter gave a higher estimate of all day once a month or possibly into a second day: T165.16 cf T174.18. The plaintiff's daughter appeared to have some difficulties providing accurate estimates of the hours of assistance: T164.37, T165.1 T165.12-.22. In my view, the plaintiff's estimate appeared to be more reliable and I prefer it. 4. Even if the plaintiff's daughter's estimate is accepted, in my view the gratuitous attendant care services provided by the plaintiff's daughter and grand-daughter do not satisfy the requirements of intensity of at least six hours per week set out in s 15(3) of the CLA. No damages may be awarded to a plaintiff for gratuitous attendant care services provided to the plaintiff unless the services are provided and are to be provided for at least six hours per week. Even allowing for the plaintiff's daughter providing say eight hours per month for a thorough or "deep clean" and occasional additional services when required (T165.20-.22) and allowing 20 minutes per week for vacuuming for the younger grand-daughter, the provision of likely future gratuitous attendant care services does not meet the intensity requirement of at least six hours per week. 5. Accordingly, in my view, no amount should be allowed for future gratuitous attendant care services as claimed by the plaintiff. Future commercial assistance 1. It is clear that in order for a person to claim an award, whether by way of a buffer or not, for future paid commercial assistance, a need for that assistance arising from a breach of duty of care must be established by the plaintiff: Smith v Alone [2017] NSWCA 287 at [73-77]. 2. I have already dealt with the plaintiff's need for future lawn mowing and gardening assistance above. In Smith v Alone, Macfarlan JA referred to asking the question whether commercial care was "necessary" (at [73]) and whether commercial care would be "needed in the future": at [75]. In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal held that there was no evidence in that case that commercial care was necessary. The Court of Appeal in Galderisi at [18] referred to "a need for commercial domestic assistance likely to arise in the future". 3. In the present case, since a period of about three to four months after the accident, the plaintiff's daughter has been assisting the plaintiff with a thorough, or as the plaintiff called it a "deep clean" (T78.39) about once a month (T81.5). The plaintiff estimated the time it took her to be between two and three hours: T81.9. I have preferred that estimate. 4. As to whether there is a need in the future for commercial care as opposed to the plaintiff's daughter and grandchildren continuing with their assistance to the plaintiff, I am satisfied that it is very likely that the plaintiff's daughter Melinda and one or other of her grandchildren will continue to provide her with domestic assistance. Even after the grandchildren eventually grow up and leave home, I think it is very likely that the plaintiff's daughter Melinda will assist her. The plaintiff gave evidence that there was no imposition on her daughter Melinda in assisting her with the cleaning as all her children have left home and are independent and her daughter is able to assist her: T80.43 and T78.48. The evidence of the plaintiff's daughter Melinda was to a similar effect. She appeared very keen to assist her mother in any way possible, to her credit. 5. I find that the plaintiff's daughter, and grandchildren where necessary, will continue to provide domestic assistance as the plaintiff requests that or needs it. An exception is handyman assistance, which I have referred to above and for which I have allowed a buffer. 6. The defendant concedes, properly in my view, that Melinda's various absences from Port Macquarie in the past to visit her son, may warrant an allowance for future commercial assistance for a thorough monthly clean. Melinda may also be sick or may suffer injury herself. The defendant allows $10,004.57 as a buffer (calculated as three hours per month for a period of 10 years ($35 x 3 hours x 12 months = $1,260 per annum or $24.23 (rounded) per week) (5% multiplier for 10 years 412.9 x $24.23 = $10,004.57). I accept that such an award is justified. Ms Skibby allows for a higher hourly rate (see page 94 of her report). I allow the assistance proposed by the defendant at $50 per hour, allowing a slight reduction for the possibility that the care may not be needed as provisioned for. This arrives at the sum of $14,294.60 ($50 x 3 hours per month = $150 x 12 divided by 52 = $34.62 per week x 5% multiplier for 10 years 412.9 = $14,294.60). 7. I reject the plaintiff's submission that a higher sum is appropriate as recommended by Ms Skibby, in the light of the evidence from the plaintiff and Melinda Baker which I have referred to above and accept. Contrary to the plaintiff's submissions, Ms Melinda Baker and the grand-daughter seem to provide all the domestic assistance which the plaintiff presently needs in response to her injuries in the accident. 8. In my view, no additional need arising from the accident has been established for future commercial assistance. Summary 1. Accordingly, I would allow the following amounts as damages. The reduction of 20% for contributory negligence needs to be applied to the figures: Non-economic loss $92,000 Economic loss Nil (None claimed) Past out of pocket expenses $2,782.35 Past lawn mowing/gardening $1,620 Past domestic care Nil Future out of pocket expenses $19,267.25 Future lawn mowing/gardening $12,301.57 Future gratuitous attendant care services Nil Future childcare services Nil Future commercial services $14,294.60 (buffer) Disposition 1. For the above reasons, I make the following orders: 1. Judgment for the defendant. 2. The plaintiff is to pay the costs of the defendant of the proceedings as agreed or assessed. 3. Liberty to any party to make an application within 14 days to vary order (2) above. 4. The exhibits are to be retained for 28 days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2020