District Court New South Wales Medium Neutral Citation: Vourvahakis v Marrickville Metro Shopping Centre Pty Limited [2013] NSWDC 73 Hearing dates: 20-22, 26-28 February 2013 Decision date: 01 March 2013 Before: Neilson DCJ Decision: I give verdict and judgment for the first defendant against the plaintiff I give verdict and judgment for the second defendant against the plaintiff I order that the first cross-claim be dismissed I order that the second cross-claim be dismissed Catchwords: PERSONAL INJURY - Occupier's liability - First defendant owner and occupier of a shopping centre - Plaintiff slipped and fell whilst walking across a car park toward the entrance of the shopping centre - Second defendant alleged to be contracted by first defendant to provide inter alia occupational health and safety risk assessment - Whether second defendant owed a particular duty of care to the plaintiff - Plaintiff saw extending across the roadway in front of her an expansion joint cover which protruded from the road surface - Plaintiff stepped on expansion cover and fell - Plaintiff was wearing rubber thongs - Plaintiff admitted it was raining at the time - Plaintiff did not turn mind to whether expansion joint cover would be slippery - Plaintiff admitted that if she had turned her mind to the question of slipperiness she would not have stepped on it - Whether any legal impediment to the use of these expansion joint covers at the time that they were installed - Whether other persons had reported injury concerning slipping on expansion joint cover - Whether risk was foreseeable - Risk not insignificant - Whether risk of harm was remote - Question of seriousness of harm - Plaintiff affected by two previous motor vehicle accidents and a number of work-related injuries - Whether risk was obvious - Question of reasonable preventative measures Legislation Cited: Civil Liability Act 2002 Cases Cited: Australia in Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bader v Jelic [2011] NSWCA 255 Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Hackshaw v Shaw (1984) 155 CLR 614 Indermaur v Dames (1866) LR 1 CP 274 Najdovski v Crnojlovic [2008] NSWCA 175 Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 Shaw v Thomas [2010] NSWCA 169 Skulander v Willoughby City Council [2007] NSWCA 116 Category: Principal judgment Parties: Stella Vourvahakis (Plaintiff) Marrickville Metro Shopping Centre Pty Limited (Defendant) Representation: Mr G Beauchamp (Plaintiff) Mr G Guest (Defendant) Brydens Compensation Lawyers (Plaintiff) McCabes Lawyers Pty Ltd (Defendant) File Number(s): 2010/426729 Judgment 1HIS HONOUR: There is in the Sydney suburb of Marrickville a shopping complex known as Marrickville Metro. That shopping complex has been referred to as a shopping centre, although it is more like the traditional shopping mall described by Kirby P, as his Honour then was, in Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241. 2From such evidence as has been given, it would appear that this shopping complex, to which I shall refer hereafter as either the "shopping centre" or the "centre", comprises a series of shops in one building on the ground floor with the roof of that building being a car park. From exhibit 14, an aerial photograph, it appears that on part of the rooftop car park has been constructed a higher level car park over what would be less than one-quarter of the total area of the rooftop car park. 3It is an agreed fact that this centre opened in 1987. The identity of the original owner, the architects or the builders of the centre has not been given in evidence. The identity of those who may have chosen materials to be used in the construction of the centre has not been given in evidence. The evidence concerning the history of the centre is that the current first defendant purchased the centre from Bevillesta Pty Ltd on 13 October 2004. The original name of the first defendant was AMP Marrickville Pty Ltd and is so described in the transfer from Bevillesta Pty Ltd to it. But, antecedent to that transfer, the name of the transferee was changed into the name of the current first defendant. However, that name change would not appear to have been operative prior to or at the date of transfer. The change of name of the first defendant was subsequently registered with the Registrar-General on 29 June 2005. 4The current first defendant remains the owner of the shopping centre. In the amended statement of claim, upon which the plaintiff relies, it is alleged that the first defendant was the occupier of the Marrickville Metro Shopping Centre at Marrickville, and that is admitted by the first defendant. Accordingly, at least since 13 October 2004, it would appear that the first defendant has been the owner and occupier of the shopping centre. 5On 13 February 2008, the plaintiff visited the shopping centre. She drove her vehicle onto the rooftop car park and parked her vehicle there. She then walked towards the entrance to the shops, an entrance which, I infer, was the access to either lifts and/or travelators which took her from the rooftop car park down to the ground floor where the shops were. As she was walking across the car park toward the entrance to the shops the plaintiff tripped and fell. She alleges that as a result of that fall she sustained personal injury. The plaintiff brings an action for damages for those personal injuries. The plaintiff's claim is in the tort of negligence. The plaintiff's action is governed by the provisions of the Civil Liability Act 2002. 6The second defendant is a contractor to the first defendant. Exhibit R is a letter from the first defendant to the National Operations Manager of AMP shopping centres. Exhibit 12, inter alia, contains a list of "AMP shopping centres" in the Commonwealth of Australia. There are AMP shopping centres in New South Wales, in Queensland, in Victoria and in Western Australia. The AMP shopping centres in New South Wales are Dapto Mall, Riverside Plaza, the Macquarie Centre, Auburn Home Megamall, Crossroads Home Centre, Glenmore Park, Marrickville Metro, the Palms at Coffs Harbour, Royal Randwick, Northbridge Plaza, Warringah Mall, Mosman Village, Junction Fair, Cessnock Plaza and Wattle Grove. There are three, or at least in early 2008, there were three shopping centres in Queensland, three in Victoria and three in Western Australia. 7The letter from the first defendant to the second defendant of 10 September 2007 is in fact an offer containing a self-encomium of the second defendant to the first defendant. It is necessary to consider the letter in order to ascertain the nature of the relationship between the first and the second defendants. The third paragraph of the letter is this: "We are not average security, safety, emergency, or environment auditors/consultants and we do not actively seek that level of work. We are genuinely a very high level corporate strategic resource; we operate as if we are part of your internal organisation, not external consultants." The succeeding paragraph is this: "Our strength is in our ability to thoroughly assess the issues; the controls currently in place, to understand the needs of the organisation and make recommendations that are applicable to the type of business, property, owners and the risk exposures. We are in the business of providing genuine help to directors and managers in the most cost effective and diligent manner." The second defendant then gives itself ten descriptors. The first and third of those descriptors are: · Specialists in Strategic Risk Management. · Specialists in Environment, Health and Safety. The second page commences with a heading, "The AMP Shopping Centre Project Proposal". The matter next occurring is this: "A senior InteRisk specialist resource will be allocated to oversee the implementation of the Environmental Health and Safety (EHS) programs of your shopping centre portfolio for the contract period." There are then listed ten "key aims of the process". The first, third and fifth of those "key aims" are these: · Assist the centre management teams with the implementation of Safety systems and operational objectives. · Provide a review and Audit function reporting back to the National Operations manager. · Assist with the reporting and registration of Incidents, Accidents and investigations. Page 3 purports to be an "outline of some facts" to be considered by the addressee. There are then listed nine "facts". The sixth of those facts is this: "We have already developed, reviewed and implemented a huge number of operational and business procedures and processes; they would be available to you and would only require minor tailoring to suit the AMP portfolio if needed. These include: · Engineering and maintenance procedures. · Crisis/Emergencies/Escalation and Security procedures. · Occupational Health and Safety procedures. · Operational Environmental standards. · Training Packages targeting Engineering and Operations staff." The final page contains a position description, an overview of duties, the experience of the person to be appointed to the position and the fee to be charged each year by the second defendant. The position description is "Risk Manager (Under the supervision of Senior Risk Management specialist)". The overview of duties includes this opening statement: "Total management of the development of systems, procedures and processes." There is then a heading "Management" and beneath that a number of areas to be "managed". They include occupational health and safety, reporting and auditing, and "environmental". The person to be appointed to the position was required to have more than five years' experience as a risk manager, and the annual fee to be charged by the second defendant was $130,000. However, that fee did not include goods and services tax, travel, accommodation and business phone expenses. 8As the case has been presented and argued, it would appear that the offer made by InteRisk to "AMP shopping centres" was accepted and, inter alia, a "risk manager" was appointed to the AMP shopping centres in Australia. The person who occupied that position, I infer from the date of the appointment of InteRisk until some time after the plaintiff's slip and fall, was Mr William Thomas Dash, who was known to all as Billy Dash. 9Mr Dash had commenced the InteRisk Pty Ltd in 2003. He has an applied science degree in occupational health and environmental health. Exhibit 12 contains a schedule for Mr Dash to visit each of the AMP shopping centres in the Commonwealth in the first part of the year 2008. 10Mr Dash was called and has given oral evidence. It is abundantly clear, not only from exhibit R but also from Mr Dash's evidence, that his job or role was not to carry out the day-to-day operations of any one particular AMP shopping centre but was to ensure that each shopping centre had systems in place to ensure that all things ran as smoothly as possible, and that all statutory and other obligations of the occupier of a shopping centre were carried out. It is abundantly clear that the role of Mr Dash at the relevant time was not to identify any particular risk in a shopping centre, but his role was to ensure that each shopping centre had a system which would identify risks by regular inspection and reporting and the like, and would remedy such risks within an appropriate time-frame given the gravity of the risk. Inter alia, that required that there be adequate maintenance of records. 11I state that at some length and because one of the issues arising in this case is whether the second defendant owed any particular duty of care to the plaintiff. 12At the time of her injury, the plaintiff was fifty-one years old. She had been born on 26 November 1956. She came to Australia when she was six or seven years old from her native Crete. I infer that she came to Australia in 1963 or thereabouts. She spoke unaccented English and it is clear that most of her education was carried out in this State. 13The plaintiff had, prior to 13 February 2008, visited the Marrickville Metro once before, but her evidence was that it was shortly after the centre opened. She was not a regular visitor to this shopping centre. After the fall, the plaintiff visited the shopping centre on 15 February 2010 where she met Mr Neil Adams, an ergonomist and safety management consultant who was retained by her solicitors, Messrs Brydens. The plaintiff told me on oath that when she met Mr Adams she told him the truth about what happened to her. Furthermore, the description of the plaintiff's injury contained in Mr Adams' report dated 18 March 2010 is wholly consistent with the plaintiff's evidence-in-chief. That description is this: "[At] approximately 10 to 10.15am on 13 February 2008, Mrs Vourvahakis drove up onto the rooftop car park at the Marrickville Metro Shopping Centre (the shopping centre) and parked her car in the area marked in photograph 1. She alighted from the vehicle and started to walk towards the covered area that may be seen in the background of that photograph. And through which she intended to gain access to the retail level of the shopping centre. As it had been raining quite recently, and may still have been lightly sprinkling, Mrs Vourvahakis was aware that all of the exposed pedestrian surfaces in that area were quite wet. Mrs Vourvahakis advised me that as she walked towards the covered area, she saw extending fully across the roadway in front of her a metal structure that protruded somewhat above the roadway surface (see photographs 2 and 3). She did not give that structure any further consideration until she reached it and stepped onto its far side with her right foot. Unfortunately, she felt that foot slip rapidly forwards down that sloping surface, and she started to lose her balance. She remembers making a number of steps in a forwards direction as she staggered while attempting to regain her balance. She was ultimately unsuccessful, and fell heavily onto her hands and knees before she twisted and rolled onto her left side. She initially felt quite stunned as a result of having slipped and fallen in that manner. She recalls that she was lying on the concrete surface of the car park in that location, a woman who had parked her car nearby spoke to her. Mrs Vourvahakis was able to get back to her feet, albeit somewhat shakily, when she regained some of her composure." Photograph 1 in Mr Adams' report shows the rooftop car park and part of the additional car parking area on top of the rooftop car park. It would appear that the entry to the mall to which she was walking was underneath the additional tier which held the upper car park. 14It is common ground that at the time the plaintiff was wearing rubber thongs. It is common ground that the surface of the rooftop car park, where not covered by the additional upper car park, was wet, and that not only was the concrete wet but also was the metal structure that protruded somewhat above the roadway surface. 15Mr Adams was unable to ascertain whether this metal structure was a speed hump, a cable cover or an expansion joint cover by "simple visual inspection". Simple visual inspection confirms to me the opinion of the defendant's expert, Dr John Cooke, a consultant architect, that it was an expansion joint cover. This cover is about 209 millimetres wide. On one side of the expansion cover is a short, flat surface. There is then a triangular structure folding back to another flat metal surface. The second flat metal surface is much longer than that on the other side. It is clear from the photographs that the bolts on the longer side are inserted through slots which would enable the bolts to move horizontally. The only purpose for having such extended horizontal grooves is to allow the bolts to move, and this clearly indicates that the cover is, in fact, an expansion joint cover. 16In both [3] and [23] of his report of 4 August 2011, Dr Cooke tells me this: "The primary purpose of the metal plates is to protect the construction joints in the reinforced concrete floor slabs of the car park. Large reinforced concrete floor slabs are poured in sections, separated by construction joints filled with a flexible mastic or other similar material to permit the reinforced concrete panels to move as a result of normal shrinkage and the like. The metal plate consists of two parts, bolted to the floor slab either side of construction joint, with slotted holes to permit the concrete slabs to move without damaging the plates. The typical slotted holes on one half of the plate can be seen in Photograph No 2 in Appendix A. Where positioned across a roadway (as at the accident location), the sloping sides of the plates act as a traffic calming device (hump) as well as ensuring that the construction joint filler is out of contact with the moving plates." 17It would appear from what I have just quoted from Dr Cooke that the reason that the plates are not flat is to prevent the mastic, or whatever it is between the concrete slaps, from adhering to the plate itself, which would of course prevent any movement. During the course of argument, I directed the attention of counsel to a common experience of motorists that when concrete slabs are used in the construction of a roadway, the construction joints are usually filled with tarmacadam or asphalt which, on very hot days, when the slabs of concrete expand, is protruded upwards between concrete slabs, causing a small hump in the road surface which can be felt as bumps as one drives along the roadway constructed of sections of poured concrete slab. The inference I draw from Dr Cooke's description is that the mastic between the concrete slabs could be forced upwards when the concrete slabs expand and therefore there is a need to have a raised structure over the construction joints. 18According to the measurements made by Dr Cooke, the raised or triangular section or the hump in the expansion joint covers is 200 millimetres wide. Dr Cooke continues in [24] of his report to say this: "Metal plates were in common use in car parks in shopping centres to cover construction joints, and remain in common use. Based on my observations, metal humps of the type used at the Centre were commonly used at the time of the construction of the Centre." Dr Cooke assumed that the centre was constructed "in approximately 1988". Since it is an agreed fact that it opened in 1987, one may confidently assume that it was constructed at the latest in part of 1987 and perhaps over a period commencing a year earlier, that is, in 1986. 19The evidence of Mr Dash is that these expansion joint covers are common not only in shopping centres but in other commercial premises and indeed in high-rise buildings. Were I a jury, I would confidently state that these construction joint covers are commonly encountered by those who go shopping in even modest shopping complexes where there might be, for example, only a Coles or Woolworths supermarket and a few specialty shops, to much larger centres such as the Warringah Mall, which Mr Dash told me was the largest AMP shopping centre in this State. Indeed, the evidence disclosed that the roof of Metro Marrickville is covered by these expansion joint covers. 20Exhibit Q is an email sent by Mr Dash to his superior on 1 August 2012. It had attached to it fourteen photographs in which the expansion joint covers can clearly be seen in numerous places on the roof of the centre and indeed even where there is a crossing of expansion joint covers shown in the final photograph in exhibit Q. As a tribunal of fact, I have no hesitation of finding that these expansion joint covers are very commonly encountered in shopping complexes such as malls and are well known to members of the public. 21At the commencement of cross-examination, the plaintiff admitted that the rubber thongs she was wearing at the time of her fall were slippery when walking on wet surfaces. She agreed also that they were slippery on many surfaces. She admitted that a shiny metal plate, when wet, was also slippery. She admitted that wearing rubber thongs and walking on a shiny, wet metal surface was slippery, and indeed then admitted that walking in rubber thongs on a shiny, wet metal surface was in fact walking on a very slippery place. She then conceded that when she placed her foot on the metal surface of the expansion joint cover, she did not turn her mind to the question of slipperiness. She agreed that if she had given it thought, she would have known it to have been slippery, and agreed that if she had given it thought, she would not have stepped onto the slippery metal surface. 22A more detailed description of how the plaintiff stepped on the expansion joint cover was that she placed her right foot on the angled section of the triangle that was further away from her than the other downward slope of the triangle. In other words, she placed her right foot, as she was treading down, on a down-sloping structure, much like stepping on a down-going metal slope. That caused her to slip. She then tried to regain her balance, was unable to do so, and fell onto her hands and knees, and then rolled onto the left-hand side of her body. 23There is remarkable agreement between the findings of Mr Adams and Dr Cooke. Indeed, the findings of Dr Cooke are probably more potent for the plaintiff than those of Mr Adams. It is common ground between the two experts that the sloping metal surface, when wet, was inherently slippery and dangerous. 24Dr Cooke measured the gradient on one side of the triangle to be 31.6% and the gradient on the other side to be 33.6%. For surfaces with a slope in excess of 2%, the minimum dynamic coefficient of friction for a "slip resistant" surface is increased from 0.4, which is the required coefficient of friction for a horizontal surface. According to [32] of Dr Cooke's report, where the maximum slope of the plate was 33.6%, that is 18.6 degrees, the minimum dynamic coefficient of friction for a "slip resistant" surface of the gradient is 0.85. When measured by Dr Cooke, the dynamic coefficient of friction of the steel plate surface was 0.35 but had a far lower dynamic coefficient of friction on the angle side than the minimum of 0.85 required for a sloping surface under wet conditions. In [34] of his report, Dr Cooke said this: "I therefore agree with Mr Adams .... that the steel plate, when wet with water, is described as making a very high notional contribution to the risk of slipping when wet ..." 25An initial consideration must be whether the expansion joint covers complied with any relevant legal requirement. Dr Cooke was asked to assume that the expansion joint cover upon which the plaintiff slipped and fell had been in existence since the car park was built, and that clearly was assumed by him to be in 1988. However, the construction date was clearly a few years earlier. No evidence has been called by the first defendant as to when these expansion joint covers were put into place. One must assume that expansion joint covers were in place at the time that the centre opened to the public in 1987. The question then becomes, have they, between 1987 and 2008, been replaced? There is no evidence to that effect. 26There are only two things which can guide me. The first are the photographs themselves, the best photographs being in exhibit Q. The expansion joint covers look to me "old". They appear to have been in situ for some time. They appear to me to be somewhat "weathered", which would only indicate that they had not been recently installed. However, the better guide is the opinion expressed by Dr Cooke that, based on his observations, metal humps of the type used at the Marrickville Metro Shopping Centre "were commonly used at the time of the construction of the Centre". Accordingly, the opinion of Dr Cooke is that the type of expansion joint cover in place in this centre was one that was commonly used about the time that this centre was constructed. 27Dr Cooke was awarded the degree of Bachelor of Architecture by the University of Sydney in 1966. He commenced working as an architect in that year. He worked as an architect between 1966 and 1981. Commencing in 1974, he became a part-time tutor at the New South Wales Institute of Technology and a part-time tutor at the University of New South Wales. He also became a part-time building law lecturer at what is now the University of Technology, Sydney. Between 1987 and 1988, he was an academic visitor at the Institute of Advanced Legal Studies at the University of London. In 1990, he was admitted as a solicitor and worked for Messrs Blake Dawson Waldron in their litigation section. He also worked on that firm's construction and development law newsletter. Commencing in 1981, that is, at the time that he stopped working actively as an architect, he became a lecturer in the Faculty of Built Environment at the University of New South Wales and was subsequently to become a senior lecturer. He was awarded a doctorate in 1994. His experience and qualifications are very impressive. He in fact represented the Royal Australian Institute of Architects on the Standards Australia Slip Resistance Committee and was responsible for replacement standards in 1993, 1999 and 2002, and the explanatory handbook first published in 1999. 28Does Dr Cooke have the expertise to tell me that these expansion joint covers or construction joint covers were typically used in the mid-1980s? I answer that question affirmatively. I therefore proceed on the basis that the expansion joint cover that the plaintiff encountered at the time of her slip and fall had been in situ since the shopping centre opened in 1987. 29According to the evidence of Mr Dash, millions of people pass through this shopping centre every year. Exhibit 15 are "traffic counts" of visitors to this shopping centre compiled since October 2004. Initially, the plaintiff vehemently objected to the tender of those records, but I exercised my power under s 70 of the Civil Procedure Act 2005 to require the plaintiff to admit that these were business records. That admission was very properly made by Ms Fraser. She had no objection in the circumstance to the computation on top of exhibit 15, the computation made by the first defendant's solicitor from the raw material contained in the rest of exhibit 15. Many of the figures contained in exhibit 15 are estimates. However, there is nothing inconsistent between the estimates and what other actual counts disclose. It would appear that these counts are made by some electronic counters in the shopping centre. Suffice to say that I wholly accept that there may well be substantial over-counting in such figures. For example, someone may perform some shopping in one shop, return to his or her vehicle, deposit the purchases in the vehicle, and then return to shop in another place in the shopping centre: such a return would obviously be counted as a fresh visitor by some electronic sensor. 30However, what exhibit 15 discloses is that in 2005 there were over four and a half million visitors to the Marrickville Metro Shopping Centre; in the year 2006, just under five million visitors to the shopping centre; and in the year 2007, over five million visitors to the shopping centre. Even if one halves those counts, one can still see that there would be over two million visitors to this shopping centre every year. 31In addition to the concessions made by the plaintiff in cross-examination, Dr Cooke says this in his report at [25]: "It is a matter of common sense that smooth, steep metal surfaces are slippery when wet. It is also a matter of common sense that some types of footwear provide poor grip and/or poor support for the foot. Rubber thongs provide poor grip and poor support. The metal plates are obvious and easy to step over, thereby avoiding any contact between footwear and plate." After quoting from Mr Adams' report, Dr Cooke then goes on to comment that the horizontal width of the humped part of the plates was only 200 millimetres, on his measurements, and that the plaintiff could easily have stepped over the plate without walking on the sloping surface, and that was a concession the plaintiff herself made. 32I return, however, to where I started out, that is, to consider whether there was any legal impediment to the use of these expansion joint covers at the time that they were installed clearly prior to the opening of the centre in 1987. According to Dr Cooke, there was no such legal impediment. Australian Standard 4586 "Slip resistance measurement of new pedestrian surfaces" was first published in 1999. That standard was not relevant to this shopping centre as the standard only applied to "new materials". Dr Cooke then continues thus: "At the time of construction, the construction of buildings was regulated by Ordinance 70 under the Local Government Act 1919. Ordinance 70 commenced on 1 July 1974 and was in force until fully superseded by the Building Code of Australia (BCA) on 1 January 1993, after a transition period of twelve months. AS/NZS 3661.1:1993, AS/NZS 4663, AS/NZS 4586 and HB197:1999 have no statutory force under the current BCA and were all published after the centre was constructed in 1988. Ordinance 70 and the later BCA have no provisions governing the slip resistance of internal or external floor surfaces (apart from ramps and stairs). The BCA does not apply retrospectively, in any event. The steel plate surface at the accident location is therefore not required to have any slip resistant properties for conformity with the current BCA or with the preceding Ordinance 70." 33The only things which may have been applicable were requirements relating to disabled car parking spaces and the entrance to any building. However, Dr Cooke points out that the expansion joint cover in question was not on the path of travel between any disabled car parking spaces and the entrance of the centre. It was not in breach of Ordinance 70 at the time of construction. 34There is therefore no failure by the defendant to comply with any applicable building sub-legislation or any applicable Australian or New Zealand standard. However, I do know that when wet, the sloping sides of this expansion joint cover are unacceptably slippery, but the danger provided or offered by those slippery slopes can be avoided by any pedestrian stepping over the triangular or raised section of the expansion joint cover. I know that in each of the three years preceding the plaintiff's fall, there were at least two million visitors to this shopping centre. 35The first defendant was served by the plaintiff with a subpoena for production. The subpoena for production was sealed on 17 October 2011 and the last date for service of the subpoena was 26 October 2011. The first defendant was required to comply with the subpoena by 3 November 2011. The third paragraph of the schedule to the subpoena is this: "Any records of accidents occurring in or about the car park areas of the Defendant's premises from 15 February 2005 to 15 February 2008 including, but not limited to, accident reports, incident reports, investigation reports, photographs, film, DVD and/or video footage, claims, complaints, correspondence, memoranda, security officers' notebook entries and security logbook entries." All that was produced by the first defendant in answer to that subpoena was an incident report compiled by a security officer in the employ of the first defendant concerning the plaintiff's fall. It is clear from that document that the area in which the plaintiff fell was not under surveillance, which indicates that it was not the subject of any CCTV footage that might be held or kept for security purposes. 36In written submissions on behalf of the plaintiff, the following was stated: "It is inconceivable in any case that in the three or so years of occupation by the first defendant prior to the accident that no other accident had occurred on the rooftop car park." That is probably an accurate observation. One would expect in any car park which might be visited by over two million people in any one year that there would be some minor collisions between motor vehicles, minor collisions between the structures in the car park and motor vehicles, frequent collisions between shopping trolleys and motor vehicles, and, perhaps, even some unfortunate interaction between motor vehicles and pedestrians. However, what is here important is whether there were any earlier accidents of the type in which the plaintiff was involved. Despite the "inconceivability" of there being no earlier accidents, the plaintiff made no objection, at the time the subpoena was returned, to the lack of any other accident reports, and the person who answered the subpoena was not required for cross-examination as to the adequacy of the answer to the subpoena. No application was ever made to the Court for leave to administer interrogatories or to seek discovery. 37As the evidence is, there is no evidence of any other person having reported an injury caused by slipping on an expansion joint cover at the Marrickville Metro Shopping Centre. There is no evidence of any earlier slip and fall which may have gone unreported. There may have been such slips and falls, but they may not have been reported. There may have been earlier slips and falls which were not reported because the person who slipped and fell suffered no hurt or injury. However, the plaintiff asks me to speculate that there must have been earlier slips and falls. That inverts the onus of proof. The onus of proof is on the plaintiff, not upon the defendant. The defendant answered the subpoena and no objection was taken to the defendant's answer to the subpoena at the relevant time, nor was any application made to the Court. In other words, at the time the subpoena was answered, the plaintiff was happy with the return. Accordingly, the only inference I can draw is that the only slip and fall causing injury occasioned by stepping on the expansion joint covers in the defendant's car park over three years was the plaintiff's, and that the occurrence of that injury might be one in over six million. 38However, an accident-free history is not the end of any matter. In Bader v Jelic [2011] NSWCA 255, Macfarlan JA, with whom Young JA and Sackville AJA concurred, said commencing at [33]: "As to s 5B(2)(a), that is, 'the probability that the harm would occur if care were not taken', it is of significance that, according to Mr Bader's evidence, no accident had occurred in the five years prior to Mr Jelic's accident. As a finding has not been made that the rug upon which Mr Jelic stumbled remained in place after the accident, I do not however have regard to the subsequent lack of accidents of which Mr Bader gave evidence. As pointed out in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 'the weight that will attach to an accident-free history involves a question of fact to be determined in light of all the relevant circumstances' (at 309). In my view the accident-free history of five years preceding Mr Jelic's accident is of some significance in assessing whether a reasonable person in the position of the appellants would (at the date of Mr Jelic's accident) have regarded it as necessary to have the blind pulled down over the window." In that case, if the blind had been pulled down over the window, the respondent's injury might have been avoided. 39I should indicate that the expansion joint covers that were in place at the time of the plaintiff's fall appear to remain in place up until the present time. For example, they were clearly present when the plaintiff and Mr Adams attended the centre on 15 February 2010; they were clearly still in situ when Dr Cooke inspected the site on 14 July 2011; they were still in situ when Mr Dash attended the rooftop car park on 1 August 2012. Nothing has been done in response to the plaintiff's fall to the expansion joint covers at this shopping centre. 40The physical world is full of risks. In Skulander v Willoughby City Council [2007] NSWCA 116, Mason P said this: "[34] The world is full of risky situations and sometimes risks come home with most unfortunate consequences. The respondent was entitled to factor into its decision-making that pedestrians are capable of exercising responsibility for their own safety, but a duty of reasonable care remained. [35] In Jones v Bartlett (2000) 205 CLR 166, Gleeson CJ said (at 177[23]): 'There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense. In Phillis v Daly (1988) 15 NSWLR 65 at 74, Mahoney JA said: "There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed."' [36] In Hill v Chiaverini [2004] NSWCA 265 at [29]-[31] I said (with the concurrence of McColl JA and Hislop J): 'The plaintiff was a lawful entrant to commercial premises owned and occupied by the defendants. There was an undoubted duty to take reasonable care, bearing in mind what is reasonable "will vary with the circumstances of the plaintiff's entry upon the premises" (Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487-8). A finding of breach requires a conclusion that the occupier has acted unreasonably in responding to the foreseeable risk of injury, having regard to the well-known considerations referred to in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. In determining what the defendants were required to do, acting reasonably, the occupiers could take into consideration what Mahoney JA described in Phillis v Daly (1988) 15 NSWLR 65 at 74 as "the law's expectation that the plaintiff would take reasonable care for [her] own safety" (see also Francis v Lewis [2003] NSWCA 152). This is not to assert that occupiers may ignore the fact that accidents occur due to entrants' inadvertence. Some criticism was directed at the trial judge's statement that "much emphasis has been placed in recent authorities on the requirement that plaintiffs act reasonably". In my view, this was a fair observation based upon recent appellate jurisprudence as to the content of the duty of care and issues of breach in various circumstances ... [references omitted].' [37] A busy place like a bus station will attract people who are distracted and at times inadvertent. Reasonable care for their welfare needs to be taken. But this could not amount to removing every conceivable obstacle capable of causing injury if a careless pedestrian collided with it. [38] Benches, bins and bollards could cause significant injury to the unwary pedestrian who tripped over them. The appellant counters with the argument there is a difference between tripping over something and striking one's head on it. True, but it is very much a matter of degree. The dangers and obviousness of the hazard need to be considered on their particular facts." 41In his report, Dr Cooke only suggested one method of obviating the risk caused by the sloping sections of the expansion joint covers when wet - that was that the metal plates, being obvious, could be easily stepped over. 42The only witness to give oral evidence in the defendants' cases was Mr Dash of the second defendant. Having visited the car park on 1 August 2012, it was his view that nothing needed to be done to these expansion joint covers, from his point of view, from his experience and training. The suggestions of Mr Adams are to the contrary. 43I turn now to consider the matters I am required to consider under the Civil Liability Act 2002. Part 1A Div 2 of the Act is headed, "Duty of care". A provision in that is s 5B headed, "General principles". As has been pointed out, s 5B does not really go to the existence of a duty of care, but rather to its breach. There is little doubt that the first defendant owed a duty of care to the plaintiff. Indeed, the first defendant does not deny that it owed the plaintiff a duty of care. It follows from the decision of the High Court of Australia in Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 that the duty of the occupier of land owes to an invitee is the ordinary common law duty to take reasonable care. What that reasonable care is varies for circumstances of the plaintiff's entry upon premises. 44Section 5B of the Act is this: "(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." 45The first enquiry must be whether the risk of harm suffered by the plaintiff was foreseeable. That must be answered positively. Indeed, it is pithily pointed out by the plaintiff in her written submissions at [22] in this fashion: "Mr Polin cross-examined the plaintiff on the basis that the risk of slipping was obvious and so cannot be heard to say that his client, the occupier of a shopping centre, was unaware of the risk. To a shopping centre operator, and to InteRisk, the slippery expansion joint cover must be taken to be a plain and obvious hazard." I completely concur with that, at least as far as the first defendant is concerned. The plaintiff herself admitted that this was an obvious danger. If it was obvious to the plaintiff, it would have been obvious to any visitor to the premises, and therefore must have been obvious to the first defendant through its servants and agents, who one would expect would readily pass over the car park each and every day in order to do things such as collect rubbish and collect shopping trolleys and the like. 46The next question is whether the risk was "not insignificant". What is meant by those words? In Shaw v Thomas [2010] NSWCA 169, Macfarlan JA, with whom Beazley and Tobias JJA concurred, said at [44]: "In Wyong Shire Council v Shirt, Mason J referred to a risk 'which is not farfetched or fanciful' as being 'real and therefore foreseeable' (at 48). The requirements of s 5B(1)(b) that the risk be 'not insignificant' imposes a more demanding standard but in my view not by very much." In Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, Tobias AJA said, commencing at [150], this: "Once one accepts that the relevant risk of harm was foreseeable, it is but a short step to find in a case such as the present that the risk was not insignificant. As I have indicated, according to the Ipp Report, the phrase 'not insignificant' was intended to indicate a risk that is of a higher probability than is indicated by the phrase 'not farfetched and fanciful' but not so high as to be indicated by a phrase such as a 'substantial' or 'significant risk'." 47Whether this risk was "not insignificant" is really a question of categorisation which could be applied at this stage or in the stage prescribed by s 5B(1)(c). In this case, I am prepared to find that the risk of harm was "not insignificant". A slip or trip and fall by an elderly person can cause a fractured hip. A slip and fall in what was not only a pedestrian walkway but a driving lane might cause a pedestrian to fall in front of a car. The risk is, in my view, "not insignificant". 48The next stage for me is to consider whether, in the circumstances, a reasonable person in the first defendant's position would have taken precautions. However, in determining whether the first defendant would have taken precautions, I am required to consider the matter in s 5B(2). 49The first is the probability that the harm would occur if care were not taken. Here, it has only been established that for over two million visitors in each of the three years preceding the plaintiff's fall, no one else reported having injured himself or herself by slipping and falling whilst treading on the expansion joint covers. No evidence has been adduced that since the plaintiff's fall some five years ago there has been a similar case. The probability that harm would occur if care were not taken is extremely small. In fact, to use words more traditionally used in the law of negligence, one could say it was almost remote. Indeed, not almost remote, but remote. 50The next question that I am required to take into account is the likely seriousness of the harm. For reasons which I will in due course give when assessing the plaintiff's damages, which I must do whatever the outcome of these proceedings is, the harm suffered by the plaintiff is not a good guide in this regard. The plaintiff suffered pre-existing spinal injuries. She had a degenerative low back, she had a constitutional problem in her left hip, and she previously injured her right knee. The plaintiff's essential complaints are of her low back condition, which had been previously injured, her right knee, which had been previously injured, and of her lift hip, and on no view of the medical evidence is the pathology in the hip causally related to this fall. The only issue is whether the injury triggered off the painful symptoms of her left hip problem. The plaintiff in the current matter was involved in two previous motor vehicle accidents and had sustained a number of work-related injuries. 51Again, consideration of "likely seriousness of the harm" is somewhat akin to discussing whether the risk was "not insignificant". In discussing that issue, I pointed out that a pedestrian might slip and fall in front of a motor vehicle. However, motor vehicles do not drive at great speed in car parks. Most car parks are limited to five kilometres per hour. I do not know what the car speed regime was on the first defendant's premises, however, one would not expect any driver to drive in a car park at more than ten kilometres per hour. Low speed impacts generally do not cause grievous injury. 52The next thing is the burden of taking precautions to avoid the risk of harm. The only suggestions as to avoiding the risk of harm are those raised by Mr Adams to which I shall, in due course, turn. 53The other thing that I am required to consider is the social utility of the activity that creates the risk of harm. Urban life in Australia is long distant from hunting and gathering activities of our forefathers of remote ancestry. In urban Australia, most people obtain their food and drink, their clothing and household goods by going to shops and buying them. The shopping mall is a modern incarnation of the Roman forum or the Greek agora, a modern form of the High Street shopping centres that were the norm in Australian cities and towns until the 1960s. Without shopping centres, our urban society would not properly function. The provision of shopping centres and attendant car parks is of great social utility. This is not, for example, a case of some hazardous occupation of little social utility being undertaken. 54The provisions of s 5C are not presently relevant. 55Certain provisions of Pt 1A Div 4 of the Act are here applicable. Section 5F provides a meaning for the words "obvious risk". It is in these terms: "(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." Here, the risk of slipping on a wet, sloping metal surface was obvious to the plaintiff herself. It is obvious as a matter of common sense to any adolescent or adult. The risk was patent. Furthermore, the evidence of Dr Cooke makes it clear it is also a matter of common knowledge, and were I a jury - and I would have little doubt that if there were a civil jury, a civil jury would find that it was a matter of common knowledge that a sloping metal surface, when wet, is slippery - I would have no hesitation in finding that the risk of slipping on a wet, sloping metal surface such as one side of the raised section of the expansion joint covers in the defendant's car park was an obvious risk. 56Section 5G raises a presumption that injured persons are aware of an obvious risk, as in the following terms: "(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 the occurrence of the risk." 57The plaintiff provides no good explanation in her evidence for why, when she knew that a sloping, shiny, wet metal surface was slippery, and when she knew that she was wearing thongs which made slipping in the wet, more likely she actually trod on the down-sloping surface of the metal expansion joint cover. However, the plaintiff merely says that she did not know that she would slip and fall. That does not mean that she was not aware of the risk. She said she saw this risk, the raised metal expansion joint cover, and knew that it was metal, and she knew because of the weather that it would have been wet, and thus she knew that it was slippery. I therefore find, despite her saying that she did not apprehend from her awareness that she would slip, that she was aware of risk. 58Section 5H provides that there is no active duty to warn of an obvious risk. I use those words advisedly because, in my view, the adjective "proactive" is an awful neologism which has no meaning above the word "active". The provision is this: "(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." One can see that the only relevant provision is that of subs (1). Here, the first defendant did not owe a duty of care requiring it to warn the plaintiff of the obvious risk that, when wet, the metal expansion joint covers were slippery. 59I then turn to the proposals made by Mr Adams for what he describes as "reasonable preventative measures", which is another way of saying the precautions to avoid the risk of harm that is mentioned in s 5B(2)(c). The relevant section of Mr Adams' report is this: "Among the reasonable preventative measures that could have been implemented, I would include an appropriate combination of the following: (i) Designated walkways could have been provided between the carious [sic, scil. various] sections of the car park and the entrances to the building. All such walkways could have been kept free of such potential impediments to safe pedestrian movement as surfaces, or objects mounted on the surfaces, that were slippery when wet; (ii) More specifically, the structure on which Mrs Vourvahakis slipped could have been covered with, or replaced by, a structure that provided adequate levels of slip resistance in wet conditions. For example, some similar looking structures I have seen were covered by textured humps made from treaded rubber or similar, while others comprised checker-plate steel; (iii) As it was entirely possible that pedestrians would from time to time step on to the hump, appropriate actions to make that hump safer for pedestrians could have been implemented. For example: (a) The gradients of the hump's sides could have been reduced; (b) The surface of the hump could have been modified to make it adequately slip resistant having regard to the gradient (such as by applying adhesive anti-slip strips or paint-on anti-slip preparation); (c) Obvious signs warning pedestrians that the hump was potentially hazardous, particularly in wet conditions, could have been erected in suitably prominent locations; (d) Appropriately slip resistant matting could have been rolled out over the hump during inclement weather." 60I reiterate, at this stage, that Mr Adams was unable to ascertain whether this expansion joint cover was such or whether it was merely a speed hump or a cable cover. Without knowing what the cover actually covered, if anything, one does not know how it might be modified structurally. For example, might a section of the expansion joint cover be made flat where a walkway was painted in the car park? If the cover were merely a speed hump, one would think that entirely appropriate. However, if it was an actual expansion joint cover, would its function be impaired by making a section of it flat, if the nature of the cover be determined by its function? In discussing the function of the expansion joint covers, I pointed out that whatever the mastic between the concrete slabs might expand upwards and hence the need for a hump or domed structure. Making a section of it flat could impede or interfere with its function. 61The plaintiff, in the course of argument, suggested that perhaps a raised walkway or ramp could be constructed through the car park, which would put the top level of the expansion joint on the same level as the ramp upon which the pedestrians were required to walk. However, how that would affect the construction of this car park has never been adequately explained. When one looks at the various photographs, a ramp next to a driveway would in fact stop cars parking in the designated car parking spaces. In any event, if sections of the expansion joint covers could be made flat or if a ramp could be constructed, there is not a scintilla of evidence as to the potential cost of such measures or how they might impede the functioning of the car park. 62The second suggestion of Mr Adams would require the replacement of the current expansion joint covers with other forms of cover. Mr Adams refers to "treaded rubber" and in exhibit Q can be seen, in addition to the expansion joint covers, what could well be padded rubber speed humps painted black and yellow in patches, no doubt to draw the attention of motorists to their existence. Whether padded rubber could be used to replace the expansion joint covers, again, is completely unknown to me and un-addressed by Mr Adams. Would the treaded rubber do an adequate job of protecting the expansion joint covers? Would it be able to be kept in the underlying mastic? These are questions that just have not been answered. 63The third set of alternatives argued by Mr Adams also raises more questions than they solve. Again, he suggests reducing the gradient of the sides of the expansion joint covers. Would that interfere with their function? I do not know. What would the cost of such be? I do not know. 64The next suggestion is that the speed hump surface could be made slip resistant by applying strips or paint. By strips or paint, what would be the cost of that? I do not know. What would be its efficacy? I do not know. Common sense indicates that if cars are being driven over the expansion joint covers, which they clearly are, cars could move much more quickly than affect things such as anti-slip strips and paint. The question is, how effective might that be and might it adhere to the metal expansion joint covers? This case, of course, is very different to the painting of a pedestrian crossing, which was the factual background in Garzo v Liverpool/Campbelltown Christian School. 65The next suggestion was the erection of warning signs. Because of the provisions of s 5H of the Act, that is not an appropriate suggestion. Furthermore, it begs the question. If the plaintiff has seen the raised metal expansion joint covers, comprehending that they were slippery when wet, comprehending that it was wet, comprehending that she was wearing footwear which made slipping more probable when wet, she did not put her perceptions together to comprehend what was going on. One wonders, therefore, if she could remain oblivious to the obvious risk, whether she would remain oblivious to a sign. 66The final suggestion put forward by Mr Adams is the rolling out of slip resistant matting during "inclement weather". As was pointed out by Mr Dash in his evidence, these expansion joint covers are all over the car park at this shopping centre and are all over car parks at other shopping centres. The idea that a shopping centre would have the manpower to roll out mats when rain starts to fall and then to take them back in when rain has ceased to fall, lest the wet matting itself offer a risk of tripping, brings to mind rain-affected cricket matches at places such as the Sydney Cricket Ground. We have a large number of attendants rolling out matting, waiting for the rain to pass over, and then rolling it back up so that play can recommence. The cost of having personnel available to respond to any down pouring of rain would, in my view, be prohibitive and contrary to common sense and human experience. It might be otherwise in putting a mat out at the doors to the shopping centre when it is raining, as is commonly done, but to cover all external metal structures with matting would, in my view, be unduly prohibitive. 67I return then to consider the provisions of s 5B(2), in particular par (c). The precautions suggested by Mr Adams have not been shown to me to be either possible or practical or a reasonable monetary impost. If shopping malls and the like were required to carry out tasks which Mr Adams suggests, the cost of running the mall might increase substantially, causing rent to increase for tenants, causing tenants to increase their prices, making the mall not one to be visited because of the increased cost and therefore defeat the whole purpose of the exercise. True it is that if the expansion joint covers wore out, they must be replaced, but clearly they would have to be replaced with structures that meet current Australian Standards and also current building codes. However, to replace them now is not required by either current standards or the current building code and the cost of replacing it might be a great monetary impost. 68Structures of yesterday must not be measured by standards that exist today. For example, if I were to buy a Victorian terrace house, I might encounter a very steep staircase going from one level to another. That staircase might be at a gradient that was much greater than modern building codes permit or much greater than modern standards prescribe. However, I still might purchase the terrace house, knowing that there is in it a steep staircase. One cannot judge structures of the past by current standards. That, essentially, is what Mr Adams is seeking to do in suggesting, for example, the replacement of the expansion joint covers with "textured humps made from treaded rubber or similar, or others comprised checker-plate steel". In any event, according to Mr Dash, even if these expansion joint covers were replaced with checker-plate steel, they would still be as slippery as the current ones are. 69Bearing in mind the provisions of s 5B(2)(a), (c) and (d), I am not persuaded on the balance of probabilities that a reasonable person in the position of the first defendant would have taken any precautions to obviate the risk of a person slipping on a wet, sloping surface of the expansion joint covers in its car park when the pedestrian in question was wearing rubber thongs which she knew to be slippery in wet conditions. I therefore am not satisfied on the balance of probabilities that the defendant was negligent, applying the provisions of s 5B. 70Even if I be wrong in that regard, the plaintiff clearly has been guilty of contributory negligence. In that regard, I take into account the provisions of s 5R of the Act. Under s 5S, "in determining the extent of the 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". Such a submission has been put to me in this case by the first defendant. In the circumstances of this case, that is not an inappropriate submission. 71The plaintiff saw and perceived that there was this shiny metal expansion joint cover. She knew and perceived that it was wet. She knew that the shiny metal expansion joint cover was slippery when wet. She knew she was wearing thongs. She knew that the thongs were slippery when wet. This accident occurred because she did not turn her mind to the fact that putting her right foot on the down-going slope of the expansion joint cover could cause her to stumble and eventually to fall. Bearing in mind the fact that millions of people pass through this car park and that there is no evidence of any similar incidents occurring in the past or subsequently, I believe it appropriate to attribute 100% of the negligence of this accident to the plaintiff. 72Theoretically, that, I suppose, should also dispose of the plaintiff's claim against the second defendant. However, I should deal with the second defendant's submissions in that regard. 73After agreement was reached between the first and second defendants, it is clear that Mr Dash was appointed as the risk manager for the AMP shopping centres. As a result of that appointment, he carried out inspections of all of the AMP shopping centres in Australia. He carried out his inspection at the Marrickville Metro on 25 January 2008. He went to the centre at about 9am and left at approximately 2pm. He told me that he was on site for roughly five hours. When he attended at Marrickville Metro he met Mr Andrew Simmons, who was the Operations Manager of that shopping centre and, I infer, an employee of the first defendant. He also met Mr David McStravick, the National Operations Support Manager for all the AMP shopping centres, whom I assume is an employee of AMP Capital Shopping Centres Pty Ltd, whose name appears on the InteRisk report which became exhibit 3. 74Mr Dash, amongst other things, conducted a walkthrough, as he told me, of the premises, but not through all parts of it. He was accompanied on the walkthrough by Messrs Simmons and McStravick. Eventually a report was generated, a copy of which is exhibit 3. The overview contained in the "executive summary" is this: "This report has been put together following a centre review process conducted during January 2008. The review was for AMP Capital Shopping Centres and primarily looked at the management of Operational Risks at the Centre as well as the implementation of the procedures in the Environmental Health & Safety Handbook." 75The "Environmental Health and Safety Handbook" became exhibit P. The version that became exhibit P was numbered version 3.1. From p 5 of that document, I know that the original publication was "launched" in October 2006 and that there was an update to that document, version 2, in October 2008, a further version published in June 2010, and version 3.1 published in June 2011, which had an adjustment to the "second update" which led to the publication of June 2011. The plaintiff called for the original version, that is version 1, but it was not produced. All that the first defendant could produce was the version 2, published in October 2008. 76At the time that Mr Dash visited Marrickville Metro, one can see that the handbook had been in existence for some fourteen months. One can note from the "overview" that Mr Dash was primarily concerned with the management of risks and the implementation of procedures. He was not there to identify risks and say how they should be treated, however, he did so. 77The report raises twenty-one items numbered from 2008/01 to 2008/21. Under each item, there is an observation made followed by photographs, if necessary, followed by a reference to the handbook. The first observation concerned contractor management. The second observation concerned pedestrian safety at loading dock 3; presumably, members of the general public, shoppers, do not visit the loading dock. The third item was trolley maintenance, that is, the maintenance of shopping trolleys. The fourth item was the obstruction of emergency exits. 78The fifth item was of car stops being a trip and fall hazard. The observation is this: "The car park stops near the upper entry into the centre are not highlighted. This raises trip and fall issues, especially as the car stops are located in close proximity to the centre entrance." Then follows a recommendation: "Recommendation is to highlight the car stops with yellow paint. Priority should be given to the stops that are located in close proximity to the centre entrances. All entries from the car park should be reviewed and car stops highlighted as required." There is then a photograph taken from what appears to be the veranda of an entrance to the shopping mall and one can see car stops at the end of car parking bays near the columns which support the veranda. There is a cross-reference to the handbook at the bottom of the description of this item. 79Mr Dash made it clear in his evidence that he was taken to this entrance of the car park by Messrs Simmons and McStravick, made his observation, took his photograph and made no further entry into the car park. In his email, which became exhibit Q, Mr Dash made it clear that he was not taken through the car park, although the photograph referable to item 2008/05 was taken from "the inside entry of the centre near the top of the escalators". In the same email, Mr Dash said this: "I revisited the centre today to refresh myself of the ICR [initial centre review] and I can confirm that I was not escorted through the car park at the time of the ICR." 80Other items discussed in the report, which became exhibit 3, are pavers leading into the main entry of the centre that have moved, leaving an uneven walking surface causing a trip and fall hazard. Other items concerned electrical testing and tagging, exit door signs, "housekeeping", especially where trolleys were found obstructing emergency entrances, damaged tiles constituting a trip and fall hazard in the food court, damage to a fire door on its outside, visitors' pushbikes being chained to a railing at the entrance to the centre, and problems with loading docks, trolley collection vehicle, hose reels, hazardous substance storage, damaged automatic doors, pallet and car park storage, some graffiti at the entrances to the car park, and obstructed signs, and cooling tower corrosion. It can be seen, therefore, that roughly half of the risks that were being identified were risks not to members of the public but general administrative problems in the running of the shopping centre and risks that existed to employees as distinct to visitors to the centre. 81Accordingly, there is no evidence, indeed the evidence is to the contrary, that Mr Dash saw or had his attention drawn to the metal expansion joint covers in the car park at the time of his visit on 25 January 2008. In any event, his role was to try to ensure that the management of this shopping centre were complying with the requirements of the Environmental Health and Safety Handbook that had first been published in October 2006. He was there to ensure that systems were in place for the management of risks. He was not there to manage any risk itself. 82Prior to calling upon Mr Catsanos, who appeared for the second defendant, to address me, I enquired of learned counsel for the plaintiff what was the nature of the plaintiff's case against the second defendant. She said that the second defendant owed a duty of care to the plaintiff and to every visitor to the premises to identify risks to which members of the public were exposed. Using, as is normal in my court, the Socratic method, this was distilled down to a proposition that the second defendant was under a duty to identify any risk to visitors of injury and to report that risk to the first defendant. In my view, no such duty existed. The duty to identify risks and obviate them remained, even under the arrangement between the first and second defendant, with the first defendant. The second defendant's role was to make sure that there were systems in place that were being maintained such that all such risks could be properly managed. 83What Mr Dash did on 25 January 2008, in visiting this site and reporting on problems that he observed, was no doubt to indicate to Mr Simmons how he ought to act and what he ought to do, and how he should ensure that the Environmental Health and Safety Handbook be applied. 84Mr Catsanos for the second defendant submitted that the passing on of information does not give rise to a duty of care per se, but even less could it give rise to a duty relating to information not actually passed on to the second defendant. In that regard, he referred me to the judgment of Kirby J in Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 at [236] et seq. 85As Mr Catsanos submitted, the second defendant's role was to advise on operational risks. If it was under any duty of care to the plaintiff in the performance of that task, the duty could only involve requiring it to take reasonable care in assessing the operational risks. There is no evidence to suggest that the operational risk assessment carried by Mr Dash on behalf of the second defendant was not properly done. In the circumstances, the second defendant owed no applicable duty of care to the plaintiff. 86If the existence of the expansion joint covers had been drawn to the attention of Mr Dash on 25 January 2008, it is clear that he would not have recommended any "remedial" action being taken. If he had, he would have included it in his report. The report, however, was not in fact sent to the first defendant until 28 March 2008. 87Antecedent to that, the EHS risk register, which is essentially a synopsis of the twenty-one items identified by Mr Dash, was sent to the first defendant on 10 March 2008 for the first defendant to decide on the actions required, by whom those actions were to be carried out, by what date the actions were to be carried out, when there was to be a review as to whether the actions had been carried out, and finally with a date for the completion of the actions. The completed form was sent back to Mr Dash on 26 March 2008, which led to his sending out of the report on 28 March 2008. In other words, even if something had been said in the report or in the EHS risk register that was sent to the first defendant on 10 March 2008, it would not have obviated any risk of injury to the plaintiff to which she succumbed on 13 February 2008. There was therefore no causation by the second defendant of any injury suffered by the plaintiff. 88Causation, of course, is governed by s 5D of the Act, and here there was no, in my view, factual causation such that I even need to consider the conjunctive test provided by s 5D(1)(b) of the Act. Accordingly, even if I held that the first defendant were negligent, I would still find against the plaintiff in favour of the second defendant because, as I said, in my view the second defendant owed no duty of care to the plaintiff, and even if it did, it could not be the factual cause of the plaintiff's injury because of the timeframe involved - a visit on 25 January 2008, the plaintiff's fall on 13 February 2008, then on 10 March 2008 the second defendant sending the EHS risk register to the first defendant to which the first defendant responded on 26 March 2008, leading to the publication of the report, which became exhibit 3, on 28 March 2008. One might wonder why there was so much time between 25 January 2008 and 10 March 2008, but that may well be explained by the need of Mr Dash to visit the other properties owned by AMP Capital Shopping Centres Pty Ltd. 89HIS HONOUR: No one wants anything further on liability at this point? Any further reasons? FRASER: No. No. 90HIS HONOUR: Yesterday, I made findings on a question of liability which point to the ultimate disposal of the current proceedings. However, I should add a few further observations on that question. 91The plaintiff points to the requirement in the first defendant's Environment Health and Safety Handbook. On p 63, under the heading of "Housekeeping", the third bullet pointed requirement on that page is that all employees of the first defendant and its contractors are required to uphold a clean and safe workplace by ensuring a number of things. The fourth of those things is this: "Slip testing completed as per the requirements of Australian Standard 3661. (to be completed quarterly for Shopping Centres and annually for Office and Industrial sites). A risk assessment should be conducted by each site to ensure that the appropriate locations are tested, areas can include: - where floors can become wet or oily - where external grounds are slippery or are uneven sloping surfaces - work areas where lifting and carrying tasks (and some other manual handling tasks such as pushing and pulling) are performed - any area where the pace of work causes people to walk quickly or run - high pedestrian traffic areas[.]" Further on, on that page, is the following matter: "An inspection of the site should be conducted on a regular basis to ensure that a high standard is maintained at all times. In the event that the housekeeping standards as outlined above are insufficient, Site Management shall assess and make recommendations to rectify the situation. If the housekeeping of a contractor is viewed as not suitable, they shall be notified as per the non-compliance reporting." The argument advanced by the plaintiff is that, applying these criteria, the sloping metal surfaces of the expansion joint covers, which clearly were in a high pedestrian traffic area such as a car park, ought to have been tested quarterly. It was the evidence of Mr Dash that such testing should be required quarterly. 92Documents produced on subpoena by the first defendant show slip testing being conducted but not with any fixed regularity. Slip testing was conducted on 16 June 2006, 8 September 2006, 15 September 2006, 12 June 2007 and 4 June 2008. It is common ground from the records of the slip testing, which are exhibit V, that no testing was carried out in the car park. There was testing of certain entrances to the car park, to various buildings, to various outlets in the shopping centre, but the inference to be drawn is that there was no testing in the car park itself. 93Other documents produced by the first defendant are headed, "Monthly Compliance Statement" and they change in form commencing in July 2006. From July 2006, there is a need to specify whether slip tests have been performed. From those documents, it appears that slip tests were performed in June 2006, September 2006, March 2007, June 2007, December 2007 and then again in February 2009. It would appear that slip testing, most proximate to the plaintiff's fall, was on 21 December 2007, although a slip testing report for that date is not available in exhibit V. 94A concession was made by Mr Dash that the slip testing ought to have been carried out on expansion joint covers considering that they were in a car park, which is an area of high pedestrian traffic. However, such testing would only have disclosed what the subsequent testing has unanimously disclosed and again would only point to what is an obvious risk using commonsense and common human experience. Really, this argument carries the matter no further than the finding I made yesterday that this was an obvious risk not only to the plaintiff herself but also to other members of the public and to the first defendant. 95Considering the evidence of Mr Dash that he would not have modified the expansion joint covers in any event, knowing what is now known and bearing in mind the defendant has done nothing one would assume that even if the slip testing had been carried out the defendant would not have taken any steps to obviate this risk. Again, that only points to the requirements that need to be considered under s 5B(2) of the Civil Liability Act 2002. 96The next observation that I make on the question of liability is an observation made by Mr Neil Adams in his second report of 27 January 2012 commenting upon the report of Dr Cooke. Commencing on p 5, Mr Adams said this: "In his paragraph 25, Dr Cooke asserts that 'rubber thongs provide poor grip and poor support', and that Mrs Vourvahakis' choice of footwear should be regarded as being indicative of a 'lack of reasonable care...'. Dr Cooke has not provided any data in support of his generalised assertion with respect to the slip resisting properties of thongs. In my experience, there is a wide range in the frictional performance characteristics of footwear. However, those differences primarily relate to the sole/heel material and the presence or absence of tread, rather than to the nature and structure of the components above the heel/sole. I would agree that some thongs can be very slippery (as can some sports shoes, for example). Conversely, I have found some thongs to be quite slip resistant. In my opinion, Dr Cooke's general assertion in this regard is simplistic and quite probably wrong in fact with respect to Mrs Vourvahakis' footwear. In support of this contention I note that the fact that she did not slip as she walked across the wet concrete prior to encountering the hump, indicates that the thongs she was wearing were not inherently slippery. I do not see how the issue of whether and to what extent the thongs supported Mrs Vourvahakis' feet is relevant to her slip on the wet, smooth and steeply sloping surface. Dr Cooke has not provided any information that will assist in this regard. In the circumstances that Dr Cooke and I agree that the smooth and steeply sloping metal surface can be expected to make a very high contribution to the risk of slipping in wet conditions, it is my opinion simply unnecessary to look beyond the metal plates to identify the main reason for the slip. If the slip had occurred on a surface that was not at all slippery, was only marginally slippery, then it might be reasonable to attribute some, or perhaps all, of the fault to the footwear." 97However, those assertions fly in the face of other matters. The first is a passage in Mr Adams' first report. Commencing on p 8 of that report, Mr Adams said this: "While it is not appropriate to infer that a surface is 'safe' or 'unsafe' solely on the basis of measured co efficients of friction, because the likelihood of pedestrians experiencing slips on a surface is only partly dependent on the surface characteristics, it is possible, usually by undertaking objective measurements, to determine the relative contribution that a given surface might be expected to make to the overall risk that a slip might occur. The total risk that a slip might occur on any given surface is dependent both on the frictional characteristics of that particular surface, as well as on a range of contributing factors, including: the presence of potential lubricants (e.g. water), footwear (or surface interface material if the footwear is prevented by the contaminant from actually contacting the pedestrian surface); pedestrian awareness of the level of available friction; whether the pedestrian is turning or exerting other forces on the surface; other aspects of gait; lighting; differentials between adjacent surfaces; and others. This principle is acknowledged in the relevant Standards ... neither of which refers to a certain coefficient of friction as being either 'safe' or 'unsafe'." Mr Adams then goes on to point out requirements of current Standards. It is therefore acknowledged by Mr Adams that there are many factors at play in what could be seen as a slip and fall. 98In his second report, Mr Adams sought to downplay the significance of the plaintiff's choice of footwear, that is, rubber thongs. He points out that Dr Cooke made no observations about the particular thongs in question and that thongs vary. In that regard, Mr Adams is correct. However, the plaintiff herself acknowledged that the thongs she was wearing were slippery when worn on wet surfaces. That evidence, itself, cannot be ignored. One must observe that the plaintiff's fall may not have occurred if she had worn more appropriate footwear in wet weather. A question often arises in some cases, including criminal cases, as to whether it is appropriate for a motorist to wear thongs whilst driving. However, that does not arise in this case. 99The final observation that I would offer on the question of liability is that if the common law prior to Hackshaw v Shaw (1984) 155 CLR 614, Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7 and Australian Safeway Stores Pty Ltd v Zaluzna was applied, I would be required to apply the test set out in Indermaur v Dames (1866) LR 1 CP 274. I would be looking to ascertain whether there was any unusual trap or danger of which the defendant was aware of ought to have been aware. The expansion joint covers would not be categorised as a trap. They could be categorised as a danger, but the danger was not an unusual one. It is common for expansion joints in car parks throughout the country. Therefore, applying Indermaur v Dames, in my view the plaintiff would have failed. 100In any event, I am required, notwithstanding my findings, to assess the plaintiff's damages in any event lest the matter go further. I shall do so. 101As I mentioned yesterday, the plaintiff was born on 26 November 1956. At the time of the slip and fall on 13 February 2008 she was 51 years old. At the time of this hearing she was fifty-six years old. The plaintiff was born in Crete and migrated to Australia with her family when she either six or seven years old. She left school with the School Certificate in 1972. In 1973 she commenced a dressmaking course at the Petersham TAFE, but she did not complete that course. She spent seven months of that year in making curtains, presumably using sewing machines or the like. 102In 1974 she entered the banking industry as a teller for the Commonwealth Bank. In 1977 she joined the Commercial Bank of Australia, which was one of those banks which merged to become the National Australia Bank. In 1978 she married and in 1979 gave birth to her first child, a daughter called Angie. She appears to have left the workforce at that time. 103In 1980 she was involved in a motor vehicle accident. She was a passenger in a vehicle. Histories recorded by medical practitioners indicate that as a result of her injuries the plaintiff brought an action for damages for those injuries. The main injury was to the plaintiff's lower back with pain radiating down her right leg as far as her knee. She came under the care of Dr Siokos at Beverly Hills and later under another general practitioner at Marrickville, whose name she was unable to remember. She also saw Dr Ron Sekel, an orthopaedic surgeon at Kogarah. She was treated with painkillers and physiotherapy. She told me that she had had treatment for upwards of three years. She told me that there was no improvement in the condition of her low back over those three years. However, later the pain radiating to her right leg improved but she was unable to remember how much later that improvement was. However, eventually, she lost her constant pain, but told me that she has had intermittent low back pain ever since 1980. 104In 1981 her second child, a son, George, was born. In 1983 the plaintiff returned to the workforce as a dressmaker working in a factory at Surry Hills. In 1984 she returned to the banking industry, initially as a teller with Westpac. She was to remain working with Westpac until she took a voluntarily redundancy on 14 December 2007. During her time with Westpac the plaintiff had a number of promotions. Initially, when she went back to work in 1984, she was working part-time as a teller, but after twelve months part-time work she commenced full-time work. At the end of 1990 she ceased to be a teller and moved to an office at Hurstville, where she worked preparing mortgage documents and making arrangements in connection with the conveyance of land. She referred to this as working in the lending area of the bank. 105In 1996 the lending area of the bank was centralised in Sydney, and she moved to the city and became a trainer in that area of banking. In 1999 she became a team-leader in that area of the bank. In 2006 the plaintiff decided to take up an opportunity to do project work as a team-leader. Essentially, she became a project analyst working mainly in credit card fraud. On 14 December 2007 she accepted a voluntary redundancy because of the size of the redundancy payment. She indicated to me that it was quite large, but the amount of the redundancy payment was never given in evidence. 106During her time at Westpac, a number of other occurrences happened. Her third child, her second son, Strato, was born in 1988. In 1990 she injured her left elbow when lifting a bag of coins. She told me that that did not require her to take any time off work, but she was on restricted duties with a requirement that she do no lifting. She consulted Dr Siokos again and saw a specialist at Bankstown, whose name she could not remember. The elbow problem resolved, she told me, after some eight or nine months. However, she was still on restricted duties and presumably, therefore, had not recovered from the left elbow injury when she was involved in another motor vehicle accident in 1991. 107On that occasion she was the driver of the vehicle. Whether she was at fault or not the evidence does not disclose. The plaintiff told me that she aggravated her low back complaint, meaning the low back complaint that she had had since 1980. She told me that there was increased pain and discomfort, but on this occasion there was no pain radiating down her right leg. She told me that eventually the low back condition settled with the passage of time. However, in this motor vehicle accident the plaintiff also injured her neck, her shoulders and her arms, and the symptoms on those areas of her body persisted. She told me that X-rays were performed, which showed three "bulging discs" in her neck. She told me that she was in a lot of discomfort and was experiencing pain running down both her arms. She found it difficult to lift and to do things over a long period of time. However, she had only conservative treatment. Acute symptoms eased off, but intermittent problems in her neck, her shoulders and arms continued. When she had symptoms they could persist for a matter of days. It would appear that the plaintiff remained on light duties after the 1991 motor vehicle accident. 108The plaintiff was involved in a slip on oil in the car park at her place of work in 2006. For that, she consulted her general practitioner on 27 March 2006 and told him that the accident happened four weeks previously, which would be on or about 27 February 2006. She told me that she injured her right knee and she had pain in her right knee for a number of months. She told me she had difficulty walking up and down stairs and needed to undergo physiotherapy and osteopathy. She told me that the pain in her right knee eased off and eventually went away completely. 109She was then asked as to whether she had any problem with her psyche before the event of 13 February 2008. She said that she had become quite depressed after the motor vehicle accident of 1991 and had found it difficult to cope with her pain and the requirements of her young family. Her psychiatric or psychological symptoms persisted for a number of years. She was asked how she was in the six months prior to 13 February 2008 and said that she had no problems in her back, only intermittent problems in her neck, and the same applied to symptoms in her shoulders and arms, but she was no having any problems with either her right knee or her psyche. 110The plaintiff put into evidence the clinical cards of the plaintiff's current general practitioner, Dr Sofe Aravanis. Those cards end on 14 February 2008, but are replaced with A5 sized pages of written notes which continue the entry for 14 February 2008 and go on thereafter. Those A5 pages were tendered by the first defendant. The plaintiff first consulted Dr Aravanis on 5 August 1996. The first relevant entry is on 20 December 1998, when the plaintiff complained of severe left arm and neck pain. The next entry bears date of 18 December 1998, i.e. two days before the entry for 20 December 1998 but it may refer to the same time. The general practitioner recorded an accident at work in 1990 causing left lateral epicondylitis which was stirred up even more in the motor vehicle accident, presumably that of 1991. The plaintiff told her general practitioner that she had physiotherapy, cortisone injections into each shoulder and that she still had chronic pain but less than she had had previously. She went on to say that six weeks prior to December 1998 she was restacking stores at work leading to a flare-up of her left arm and shoulder pain, the pain being located in the inner aspect of her triceps. There was also complaint of numbness in the left hand. 111The general practitioner recorded that in the past the plaintiff had been prescribed medications including Endone and Rivotril, and that massage gave her relief. Dr Aravanis records that in November 1998 the plaintiff had seen another medical practitioner who had prescribed Codeine tablets. In December 1998 Dr Aravanis gave the plaintiff a medical certificate to be off work commencing on 16 December 1998 and prescribed physiotherapy. The next card continues the entry for 20 February 1998, the first part of which was obviously misplaced in the cards. The entry for 20 December 1998 records an inability of the plaintiff to go to work on 19 December 1998 and makes notes of pain between the plaintiff's shoulder blades, in her neck and her left upper arm as well as right-sided retro-orbital headache, which would appear to be unrelated to the orthopaedic complaint. 112Further complaints about pain in the left arm are recorded on 2 February 1999, 2 March 1999 and 22 March 1999, at which time a WorkCover certificate was given to the plaintiff. One can assume, therefore, that there was a Workers Compensation claim in respect of the plaintiff's left arm and shoulder complaints. 113The next record of any musculo-skeletal complaint was on 16 September 2002. The complaint at that time was of pain and numbness in both arms and hands, which caused the plaintiff to wake up at night. Dr Aravanis records that the plaintiff had previously had carpal tunnel tests, but they did not reveal any abnormality. Dr Aravanis also records that the plaintiff had undergone a discogram of the cervical spine. On that day the plaintiff complained of her neck pain being worse on flexion and extension, radiating into the scapular region, presumably on the left-hand side. Further complaints of pain, referrable to the neck, were made on 30 September 1992. On that occasion Dr Aravanis noted that the plaintiff brought in her previous X-rays, which showed a disc protrusion at the C5-6 level. 114The next complaint of a musculo-skeletal nature was on 22 October 2002. On that occasion the plaintiff complained of a painful right arm from her neck down, with paraesthesia and pain in her right arm. Dr Aravanis recorded the onset of that pain was after working for increased hours on the computer on the previous Friday. The impression noted by Dr Aravanis was of a continuing problem with the C5-6 intervertebral disc leading to nerve root compression. 115By 11 November 2002, the plaintiff was complaining of pain, not only in the right shoulder, but also in the left shoulder as well as her neck. On 7 January 2003, the plaintiff complained about her sore left shoulder. Apparently, by that stage she was having physiotherapy for it, but when she returned to work her condition had deteriorated. The plaintiff was then referred to a neurologist recorded by Dr Aravanis as Dr Dowla. On 20 January 2003 Dr Aravanis recorded that the plaintiff had seen the neurologist and there is a complaint mentioned of neck pain and the letters WC, which indicated to me that the matter was regarded as the subject of Workers Compensation. 116On 5 May 2003 the plaintiff complained to Dr Aravanis of a sore back. The onset of the soreness in her back was on the previous Wednesday afternoon when she had been sitting at a computer course in the city. On that occasion the doctor did not record any radiation to the legs but did note a complaint of left hip pain. The doctor also noted on that occasion that the pain "moved up" to the plaintiff's shoulder blades. The diagnosis recorded by Dr Aravanis was of muscular back pain. 117On 23 May 2003, Dr Aravanis records that the plaintiff fell off a chair a few weeks before at work and was suffering from coccygeal and sacral pain, secondary to that fall at work. She had been unable to go to work on 23 May. The fall from the chair would appear to have occurred on or about 10 or 18 April 2003. 118As the record cards were out of order, I should indicate that antecedent to 5 May the plaintiff complained of pain in her neck and right shoulder on 13 March 2003, and also on 15 April, which had been helped by massage. 119On 15 August 2003 there was a complaint of pain in the neck radiating to the right side. The doctor noted that the plaintiff was undergoing massage physiotherapy. On 16 September 2003 the plaintiff told the doctor that she was unable to go to work and complained of pain in her neck, shoulders and right hand, which required her to undergo massage therapy. On 23 October 2003 Dr Aravanis records that the plaintiff woke up with neck pain and shoulder pain and was unable to work on that day. She had been back to see the neurologist Dr Dowla. Again, a Workers Compensation certificate was given. 120Complaints of neck pain and right shoulder pain and stiffness are also recorded on 24 November 2003. Similar complaints are recorded on 27 April 2004, when Dr Aravanis records that the plaintiff had again seen Dr Dowla and was advised to change her medication. 121On 31 August 2004, Dr Aravanis records that the plaintiff had seen some specialist whose name I cannot decipher, but it may be Dr Morahan, who had injected steroids into the plaintiff's right shoulder, giving her relief for only two days. That other doctor was seeing the plaintiff for a pain in her right elbow. On 21 September 2004, Dr Aravanis records that the plaintiff had had a steroid injection into her right shoulder with complete relief for three days only. 122On 1 March 2005, Dr Aravanis recorded the plaintiff was tired, that she had no energy and that he was "stressed out at work". On 26 April 2005 there is a complaint of pain in the right arm from the neck down, radiating to the right hand. The plaintiff is right-handed. On 7 September 2005 there is a complaint of neck pain and pain in the right shoulder. The doctor's findings on examination seem to indicate that not only was there a problem on the right-hand side but there was pain on rotation of the neck to the left-hand side. On 25 October 2005 there is a complaint, again, of no energy, of fatigue and of falling sleep. 123On 27 March 2006, Dr Aravanis records a fall in the car park on an oil-spill at work four weeks previously. The complaint recorded is of a strained back and pain in the right knee. There was a complaint of numbness in both legs. The doctor's notes indicate a reduction in the right ankle jerk. The plaintiff requested a referral to see an osteopath. On 18 April 2006 the plaintiff told Dr Aravanis that her pain had settled with osteopathic treatment but that the back pain had recurred. There had been a flare-up of it for "no reason". The doctor indicated the plaintiff should not do any lifting or anything strenuous at work or any prolonged standing. 124There are a number of attendances upon Dr Aravanis after 18 April but there is no record of any musculo-ligamentous complaint until 14 February 2008. The interim attendances were all for unrelated reasons. Those attendances were on 22 May 2006, 9 September 2006, 5 October 2006, 22 March 2007, 18 May 2007, 9 June 2007, 25 June 2007 and 18 October 2007. 125Clearly, the plaintiff had problems over many years with her low back and clearly she had intermittent ongoing problems with her neck, shoulders and arms. Despite having led from the plaintiff that she had no problems, in essence, with those areas of her body in the six months prior to the accident, one can infer from Dr Aravanis' cards that the plaintiff, essentially, had no complaint of a musculo-ligamentous nature for nearly two years before the fall of 13 February 2008. I can therefore readily accept that as far as the plaintiff's low back and right knee were concerned she was, in essence, asymptomatic for at least the six months to which she deposed and probably for longer. 126The thrust of the plaintiff's evidence is that following upon this fall she had pain all over. She referred to soreness, tenderness and stiffness everywhere in her body on the afternoon of 13 February 2008, and she made specific reference to her back, arms, legs and hands. She went to see Dr Aravanis, she thought, two days later but Dr Aravanis' records indicate that the plaintiff in fact saw her on the day following the slip and fall on 14 February 2008. The doctor's cards indicate that the plaintiff had stiffness and pain in her neck and left shoulder and lower back pain. Dr Aravanis' card continues thus: "has always woken up with numbness. Woke up in agony in morning. Took two to three hours to get moving." The doctor's cards then refer to forward flexion being full, and then there is reference to extension but I am unable to decipher the rest of the card. The entry continues in exhibit 1, where the doctor records an impression of "muscular neck pain". 127On 29 February 2008, Dr Aravanis records a complaint of pain in the right knee which had been worse over the last few days and was attributed by the plaintiff to the fall in the car park, when she had been having right knee pain on and off. 128This is a case in which I am hampered by a lack of relevant medical evidence. For example, I have no comprehensive report from Dr Aravanis. The plaintiff was referred by Dr Aravanis to an orthopaedic surgeon Dr Vertzyas. There is, in evidence, an MRI scan of the right knee made on 23 April 2008 at the request of Dr Vertzyas. I can infer, therefore, that the plaintiff came under Dr Vertzyas' care in April 2008. There is reference to his treating the plaintiff's right knee in 2008 and later treating the plaintiff's left hip complaint. However, I have no report at all from Dr Vertzyas, although it is clear that there must have been some reports made by him as a treating specialist to the general practitioner because such reports are referred to in a report of Dr John Silver, who was qualified by the first defendant's solicitors and saw the plaintiff on 13 July 2011. Later, the plaintiff was referred by Dr Vertzyas to Dr Simon McKechnie, who, I was told, without objection, by Ms Fraser for the plaintiff, is a neurosurgeon. According to Dr Aravanis' notes, the referral was made to Dr McKechnie on 19 September 2008 for treatment of the plaintiff's low back complaint. However, there is no evidence before me, either in the form of treating doctor's reports, medico-legal reports or even clinical notes or records, from Dr McKechnie. The only reports I have from any medical practitioner who has treated the plaintiff are reports from Dr Michael Walsh, an orthopaedic surgeon, who appears to have commenced treating the plaintiff's left hip condition on 29 November 2011. The records of Dr Aravanis, produced on subpoena, end on 17 December 2010. 129The medical issues in this case concern the nature of the pathology in the plaintiff's right knee and low back, and the nature of the pathology in the plaintiff's left hip, and the causation of the left hip condition, that is, whether the plaintiff's complaints in her left hip are causally related to the fall on 13 February 2008. 130There are, in evidence, both copies of the clinical notes of Mr Dean Zekis, an osteopath, and a report from him bearing date 14 October 2011. The plaintiff first came under the care of Mr Zekis for this accident on 12 May 2008. Whether Mr Zekis was the osteopath who was providing her with treatment prior to 18 March 2008 I do not know. 131I have carefully looked at the records of Dr Aravanis from 14 February 2008. I have carefully looked at them to try to find any complaint that might be referrable to the plaintiff's left hip. On 25 August 2008 the plaintiff went to see Dr Aravanis shortly after a return from a visit to Greece. The plaintiff told Dr Aravanis that she was "okay in Greece - less pain". There was then, however, a complaint of increasing pain in the right knee and lower back causing difficulty with walking. On that occasion the plaintiff also said that her left knee was starting to hurt her. The doctor noted a pronounced limping on the right leg because of her right knee problem could easily cause some complaint in the left knee. 132On 12 September 2008 the plaintiff complained to Dr Aravanis about severe back pain which had been worse for the last eight days. On that occasion, there is a complaint of pain radiating to the posterior aspect of the left leg as far as the knee. That is a description of radicular pain which one would expect from a low back complaint. However, at the same consultation Dr Aravanis noted "left buttock pain". The pain would appear to be localised to the plaintiff's left buttock. The next attendance upon Dr Aravanis was on 19 September 2008. By that stage the plaintiff had undergone a CT scan of the lumbar spine, which Dr Aravanis thought showed some soft tissue density in the foramen on the left side of the L4-5 disc which might be thought to be disc material. It was then that the plaintiff was referred by Dr Aravanis to Dr McKechnie. With reference to the left side, the doctor noted pain radiating to the posterior aspect to the level of the upper calf together with paraesthesia of the upper thigh, "round thigh". On 10 November 2008 Dr Aravanis noted severe low back pain radiating to both legs posteriorly. 133The next consultation was on 14 January 2009. The plaintiff told Dr Aravanis that her back pain had no improved at all. She was still seeing Dr McKechnie, who had prescribed hydrotherapy. He had also prescribed a different medication. On that occasion, the plaintiff also complained of pain in her right knee and of back pain and what might be "sore hips". The next consultation with Dr Aravanis was not until 2 May 2009 when the doctor recorded that it hurt the plaintiff "a lot" if her left hip was touched. That clearly could be referrable to a local complaint in her left hip. 134There could well be two different conditions affecting the plaintiff, a localised problem in her left hip together with radiating symptoms from her low back. My initial view was the first complaint clearly referrable to the left hip condition was on 2 May 2009. However, the complaint recorded on 12 September 2008 of pain in the left buttock could well be a complaint referrable to local pathology in the plaintiff's left hip. However, that is the first complaint I can find in Dr Aravanis' records which could relate to the plaintiff's left hip itself. That complaint is recorded seven months after the plaintiff's fall. 135The plaintiff relies upon the report from Mr Dean Zekis which indicates that on his initial consultation on 12 May 2008 there is complaint about the plaintiff's left hip. That is not, in my view, borne out by the contemporaneous records. The first page concerns the date of the initial consultation. The entry is this: "Fell at Marrickville Metro. Slipped in car park onto right knee. Hurt knee - medial and lateral collateral pain. [ ] hip. Landed on hands and knees - flipping to left side. Due to cable cover - very slippery. Left lower back pain anti-inflammatories and analgesics. Left shoulder pain." The entry continues on the succeeding page, which contains complaints about the right knee, the right hip, the thoracic spine and the neck. I have left a blank in brackets next to the word hip because the entry has been changed. The initial entry appears to be right, that is, the letter 'R', which has been overwritten with 'Left'. Mr Zekis' entry for 4 September 2008 records complaints about the low back, arms and neck, acute left sided sciatica and pain in what would appear to be the right anterior hip. The plaintiff saw Mr Zekis two days later on 6 September 2008, when he records that straight leg raising on the left was limited to ten degrees and on the right to twenty-five degrees, and he diagnosed left-sided sciatica. However, that is very shortly before the time of the complaint of left buttock pain made to Dr Aravanis on 12 September 2008. 136I am not persuaded that the plaintiff complained to Mr Zekis about her left hip on 12 May 2008. I am prepared to accept that the complaints recorded in September 2008 may be referrable to the left hip condition. This is not my merely preferring one view of the medical notes. I have had conscious regard to the evidence of the plaintiff. 137The plaintiff was cross-examined about histories recorded by Dr John Silver and Dr Scott Harbison, each of whom was retained by the first defendant. Dr Silver has this history of the onset of left hip pain: "It was not until some twelve months after her fall at the shopping centre that Ms Vourvahakis complained of pain in the region of her left hip and she was referred back to Dr Vertzyas who initially felt that her hip symptoms may have been associated with her back pain but who, in any event, arranged for an MRI of the hip." That MRI scan was performed on 3 July 2009. When cross-examined about that history, the plaintiff denied that the symptoms on her left knee did not come on until the year 2009. The plaintiff gave a somewhat different history to Dr Harbison. That history is this: "Towards the end of 2008 she began to get pain at her left hip which was different to her previous pain. She again consulted her general practitioner and was referred to Dr Vertzyas who initially thought the pain was coming from her back but later, following an MRI examination, he though that she had bursitis at the hip." In cross-examination, the plaintiff agreed that the symptoms in her left hip came on towards the end of 2008 as recorded by Dr Harbison. In other words, she agreed with a late onset of the left hip complaint. 138A copy of the report of the MRI scan, of 3 July 2009, has been put before me. It is somewhat lengthy. The final paragraph appears to be a summary. It is this: "There is moderate sub-gluteus minimus bursitis as per your clinical impression, associated with a partial insertional tear of the gluteus minimus to the anterolateral gutter of the great trochanter. Low grade tendinopathy of the gluteus medius at its posteromedial trochanter attachment is minimally associated with sub-gluteus bursitis." 139The plaintiff's current treating doctor for her hip condition, Dr Michael Walsh, wrote in a report of 18 January 2012 this: "Stella has a separation of the gluteus medius tendon from the greater trochanter and it appears that this has been rendered symptomatic by her fall back in 2008. I had a lengthy discussion with her about the approach to the management of this problem and I think it is possible to substantially improve her symptoms by reconstructing the tendon attachment. It is unlikely she would lose her symptoms without this surgery." Dr Walsh does not say that the gluteus medius tendon, or it might only be the gluteus minimus tendon, was torn from its attachment to the greater trochanter, traumatically, in the fall of 13 February 2008. The opinion of Dr Walsh is merely that such a fall could trigger off symptoms of the condition. 140In his initial report, Dr Harbison expressed the view that he did not believe that the injury of 13 February 2008 contributed to the plaintiff's left hip problem either directly or indirectly. When asked to comment upon the report of Mr Zekis, Dr Harbison said this: "Doctor [sic] Zekis states as part of the diagnosis 'left hip and left upper thigh pain due to labral tears, tendinopathies and bursitis'. I do not think the labral tears were caused by her fall. They are part of normal degeneration. Similarly, I think the tendinopathies at the greater trochanter are degenerate in nature rather than traumatic. She may have sustained some bursitis as a result of the fall." 141The only way one can postulate a bursitis as being caused by the fall is to postulate that the inflammation of the bursa was caused by the fall, and the only way that can be ascertained was by relating symptoms of the bursitis to the fall. Essentially, that is the position of Dr Walsh. Based on the history which he took, Dr Silver would not accept that the left trochanteric bursitis was related to the fall of February 2008 given the delay in the onset of symptoms. 142The plaintiff, of course, relies upon Mr Zekis and also upon reports of Dr James Bodel and the reports of Dr Walsh. Dr Bodel had a history that one week after the fall the plaintiff's symptoms has not settled but the pain had been more localised to the right knee, the low back and the left hip. I cannot accept that history as being correct. To do so would require me to reject the evidence of the plaintiff herself. The symptoms of the left hip condition are first recorded, in my view, in September 2008. The history of Dr Walsh is that, initially, the plaintiff was able to pick herself up and walk after the fall on 13 February 2008, "but ... developed a slow onset of pain in the region of her left greater trochanter over a period of time after that". One infers that that history suggests that the symptoms in the left hip came on gradually but relatively proximate to the fall of 13 February 2008. If such is what Dr Walsh understands the correct history to be, his history is incorrect. 143I cannot understand how an injury on 13 February 2008 could cause a degenerative condition to become symptomatic some seven months later. Such has been not adequately explained. I am not persuaded, on the balance of probabilities, that there is any causal nexus between the plaintiff's hip condition and her fall on 13 February 2008. 144The question then becomes whether there is any ongoing relationship between the plaintiff's low back condition and her right knee condition with the fall now in question. Dr Bodel first saw the plaintiff at the request of her solicitors on 16 September 2008. His diagnoses are of "a soft tissue injury to the back and a minor disc injury at L3/4 and L4/5 levels, great trochanteric bursitis in the left hip and a grade one strain of the medial ligament in the right knee". He more recently saw the plaintiff, again, at the request of her solicitors on 13 October 2011 and offered the diagnosis of soft tissues injuries to the lower back, the left hip and the right knee. Such diagnoses are not particularly helpful. It is clear from the radiological investigations that the plaintiff has a constitutional anomaly in her low back in that the fifth lumbar vertebra is transitional. The radiological investigations clearly establish long-standing degenerative problems in the low back. 145The MRI scan of the lumbar spine performed on 1 December 2008 refers to there being a slight disc encroachment into the inferior aspect of the left neural foramina [sic] at the L3/4 level. As I understand it, the doctor ought to have referred to the left neural foramen, there being a foramen on each side and the plural of foramen being foramina. The same MRI scan of the L3/4 level shows the disc to be within normal limits and the neural foramina to be preserved. There is some facet joint and ligamentum flavum hypertrophy causing some "mild narrowing of the canal", but there is no suggestion of any neural impingement at all. The appearances at L3/4 a purely degenerative. There is no problem with the disc itself. I do not accept Dr Bodel's first opinion that there was some discal injury at L3/4. The question as to whether there is any discal injury at L4/5 would depend upon there being relevant neurological problems. However, at the time of his first examination, Dr Bodel noted that straight leg raising was eighty degrees on both sides and that there was no clinical sign of radiculopathy in the left leg, nor do I read his report as showing any problem on the right hand side. 146Again, the time of his second examination Dr Bodel found no clinical sign of radiculopathy in either leg, although he did note some wasting in the right thigh, which his one centimetre smaller than the left. On that occasion, however, he does not suggest any discal problem at L4/5 but merely only a soft tissue injury to the low back. 147Dr Silver examined the plaintiff on 13 February 2011. He found no radiological or clinical evidence of radiculopathy. He noted that the plaintiff admitted some recovery of her low back condition since the fall but not to the extent of a return to her pre-February 2008 condition. He went on to say this: "This complaint is entirely subjective and it is noted that there is clinical evidence, by virtue of the well-known Waddell's signs, of psychological overlay in the presentation today. Mrs Vourvahakis' history of irritable bowel syndrome and fibromyalgia, two functional somatic syndromes, is consistent with this view." In other words, as far as the plaintiff's low back was concerned, Dr Silver thought any ongoing problem was caused and was related to the plaintiff's psyche rather than her body. 148As far as the plaintiff's right knee was concerned, Dr Silver expressed this view: "There is no doubt that Mrs Vourvahakis has significant chondromalacia patellae of the right knee but the changes of this were well established when the MRI was undertaken two months after her fall and, in light of Dr Vertzyas' report suggesting a maltracking of the patella, this condition is considered to be a constitutional problem that is not related to the fall. That she incurred a medial ligament strain in association with the falls is not disputed but, on examination today, there is no evidence of medial collateral ligament laxity and there is no evidence of any right knee pathology on clinical examination other than for the chondromalacia patellae. In the circumstances it is considered that she has recovered from the medial ligament strain of the right knee that was incurred in the fall in February of 2008." The last opinion of Dr Silver is basically an ipse dixit. The plaintiff still has ongoing intermittent symptoms. She is still complaining of having problems in her right knee. I went carefully through Dr Aravanis' records to show that there was no relevant complaint in the two years preceding the fall on 13 February 2008. I accept that there were pre-existing degenerative changes, those of chondromalacia patellae and that of a previous injury to the medial collateral ligament. However one describes it, by way of exacerbation or aggravation, it appears to me, based on what the plaintiff herself said, that there is some ongoing aggravation or exacerbation of the plaintiff's pre-existing right knee problem. 149Dr Harbison expressed this view on p 7 of his report of 23 August 2011: "The pains at [sic] the lower back and right knee currently suffered are related to the injury of 13 February 2008 and are also related to pre-existing or subsequent conditions of the back, right knee, and left hip." The reference to subsequent conditions I infer is a reference to the left hip condition. However, clearly Dr Harbison would accept that there are some ongoing residual symptoms concerning the plaintiff's low back and right knee causally related to the fall of 13 February 2008. In other words, one can accept some ongoing exacerbation or aggravation, some increased level of symptomatology referrable to the plaintiff's low back condition and right knee condition causally related to the fall of 13 February 2008. 150At the age of fifty-six years, the plaintiff's life expectancy is thirty-two years. There are a number of comments about the plaintiff's general health, but nothing that really suggests that she will not see out her usual life expectancy. The working life expectancy for a fifty-six year-old lady at the current time is eleven years. 151The plaintiff, as I have earlier mentioned, took the voluntary redundancy on 14 December 2007. It was then her intention to stay out of the workforce for six months and then to re-enter the workforce, preferably in the banking industry in a job similar to the one that she held with the Westpac Banking Corporation. Accordingly, the plaintiff was not in the workforce on 13 February 2008. She did not rejoin the workforce until 18 October 2008, ten months after she took the voluntary redundancy rather than the six months which she planned. 152When she rejoined the workforce on 18 October 2008 it was for Southside Electronics, which is a business that is owned by her brother. That company is engaged in television repairs. The plaintiff worked for that business on a full-time basis doing, essentially, customer service work, that is, receptionist work answering the telephone and attending, I assume, to the sort of enquiries that would be made at the office of such a business. The plaintiff did that work for approximately two years. 153She decided then that she would like to go back to work in the banking industry and applied for a job with the Laiki Bank, which subsequently changed its name to the Beirut Hellenic Bank. She started working for that bank in October 2010. She worked at Marrickville as, essentially, a teller in customer service. In December of 2011, she obtained a new position as the manager of procedures related to helpdesks for each of the sixteen branches of the bank. She took up that position in December 2011. That position is based at the bank's Sydney office in Castlereagh Street, one block away from this Courthouse. 154Antecedent to her new job, she was earning, with the bank, $55,000 per annum. Since her promotion she is earning $60,000 per annum. Each of those figures is a gross figure. 155The plaintiff admitted that if the job with the Westpac Banking Corporation had been open to her when she returned to the workforce on 18 October 2008 she would have been able to do it. 156I turn now to the various heads of damages. 157The plaintiff claims for non-economic loss the lump sum for thirty percent of a most extreme case. On behalf of both defendants, Mr Polin submitted that at greatest, the Court would not allow any more than twenty percent of a most extreme case. I am here concerned with a lady now fifty-six years old who has suffered symptoms in her low back and right knee for over a period of five years and where it is likely, considering the extent of the persistence of symptoms since the accident, that they will persist indefinitely. Therefore, they could persist for a further thirty years. True it is that I must award more to a younger person than an older person because a younger person experiences pain and suffering and loss of enjoyment and amenity of life for a greater period of time than an older person. Equally, a younger person is generally more resilient to injury than an older person and an older person taken by injury might be less able to cope with the effects of something such as low back pain and right knee pain caused by a slip and fall. 158The plaintiff and the defendant have put before me psychiatric evidence. Dr Thomas Clark has been retained by the plaintiff's solicitors and he has examined the plaintiff on two occasions. The first occasion was 14 October 2010. The doctor's history is quite incorrect. He has the accident as occurring on 30 July 2008 and of the plaintiff's landing on her back which she did not. He also has a history of the plaintiff injuring her left hip, which I am not persuaded is the case. 159The doctor's history continues thus: "She vividly remembers the acute trauma and the thought of landing recurs to her. This is of relevance from a psychiatric view, in that the moment is still somewhat suspended, etched in her memory. This is a typical reaction to severe shock, known as derealisation phenomena. She was in great pain, which is still present. She sustained no loss of consciousness. She returned home in agony and sought medical advice but no fractures were found. She has attended for physiotherapy and stands with analgesics. She developed a complicated reaction with symptoms of depression. She found that she lost all motivation. She easily set off in tears and became withdrawn from activities with everybody. She has also suffered continuing pains. She lost confidence. She was a Westpac Bank manager but lost her career. She was formerly a hard worker, working many hours a week. She has changed her career and now has a sales job, in a family business, where she can pace herself. However, she lost her enthusiasm and drive." It is completely incorrect to say that the plaintiff lost her job as a manager with Westpac because of this fall. She had voluntarily resigned in December 2007. She was seeking to re-enter the banking workforce. She did so in 2010 in the month after she was examined by Dr Clark. 160Dr Clark diagnosed chronic posttraumatic stress disorder with severe depression. To suggest that this slip and fall was a life-threatening event or could be perceived as a life-threatening event is, in my view, utter nonsense. However, one can easily accept that there was some depressive illness. When examined the second time, Dr Clark changed the diagnosis to Dysthymia and perhaps an episode of a depressive illness or major depression. I can accept that the plaintiff, given the difficulties under which she laboured after the fall might develop depressive symptoms. 161The history recorded by Dr Clark completely ignores the fact that the plaintiff was able to holiday in Greece from 18 May 2008 to 22 July 2008. It overlooks a history recorded by Dr Vertzyas and re-reported by Dr Silver in his report of 18 July 2011. That history is: "Dr Vertzyas prescribed anti-inflammatory medication for Mrs Vourvahakis' right knee symptoms and, at review on 28 July 2008, he reported that Mrs Vourvahakis' knee symptoms had improved following a trip to Greece where she had warm baths and undertook a gentle exercise programme but not the ongoing osteopathy she has been undertaking for several years, often fortnightly and at time less frequently, perhaps every month or six weeks. Dr Vertzyas recorded a dry stable knee joint with a normal range of motion although he noted that Mrs Vourvahakis was aware that she had a patellofemoral arthrosis for which he prescribed OsteoEze that, incidentally, is no longer being used." I have already quoted the notes of the general practitioner, Dr Aravanis, that the plaintiff's condition was much more mild when she was in Greece. I accept that the plaintiff has some ongoing depression but, in itself, it is not incapacitating and I would describe it from the plaintiff's presentation to me as merely being mild. 162Doing the best I can, this case appears to me to be between one-fifth and one-quarter of a most extreme case. I would allow a lump sum for twenty three percent of a most extreme case, which, I am told, is a lump sum of $27,000. 163The plaintiff's next head of damage is past out of pocket expenses. The parties agree that were I to find that there was no nexus between the plaintiff's injury and her left hip condition the past out of pocket expenses amount to $8,770.80. 164The plaintiff's claim for future out of pocket expenses has been quantified at $30,000. In MFI 7, the plaintiff's schedule of damages, the following is stated: "The plaintiff will continue to need medical supervision, medications, specialist consultations, physiotherapy, osteopathic treatments, hydrotherapy and eventually hip surgery." The amount of the surgeon's fee for the hip surgery has been stated to be $3,152, but there are no figures available to state the length of the hospitalisation required, the cost of that hospitalisation, the amount, for example, of anaesthetist's fees, of consequential physiotherapy and any potential period of time off work. The figure of $30,000 appears to have been plucked out of the ether, and I do not mean by that the Internet, but rather the air. Leaving aside the hip surgery, the only suggestion is for conservative treatment. Essentially, the plaintiff's symptoms that will require medication in the future and perhaps every now and again a bout of physiotherapy or hydrotherapy. The desirability and adequacy of osteopathic treatment has not been established in the evidence. Doing the best I can, I would allow a cushion of $3,000. 165For past wage loss, the plaintiff claims $99,200. For future economic loss, the plaintiff claims either $113,245, together with a buffer of "$50,000" or, in the alternative to $163,245, an alternative buffer of $150,000. I find those claims quite bizarre. They are based on the proposition that but for injury the plaintiff would have returned either to work with Westpac in the job that she voluntarily resigned from on 14 December 2007 or in the same job with some other bank. The simple fact is that Westpac would not re-employ the plaintiff after paying out to her a fairly large severance pay. 166The plaintiff would have to re-enter the workforce in some fashion. She did so by working for her brother's company until she found an opening with the Beirut Hellenic Bank. From what I said earlier today, I accept that the plaintiff only intended to be absent from the workforce for six months but she was absent for ten months. I would allow her economic loss for four months or sixteen weeks. When the plaintiff re-entered the workforce in her brother's company she was earning $670 per week, according to exhibit S. Economic loss of $670 per week for sixteen weeks is a lump sum of $10,720. 167I am confident that if an opening in a bank such as the Beirut Hellenic Bank had happened earlier than it actually did the plaintiff would have taken it up. The plaintiff told me that she took an occasional day off work when working for her brother's company but no attempt was made to quantify the number of days taken off and no attempt was made to quantify or prove any days taken off by the plaintiff from her work with the Beirut Hellenic Bank because of problems in her right knee and low back. Accordingly, there was no cross-examination directed to that issue and no evidence as to whether the plaintiff took un-refundable sick leave or the like. In those circumstances, I am prepared to allow the plaintiff a lump sum of $10,720 for past economic loss. 168The question which then arises is what should I allow, if anything, for future economic loss. As I said earlier, the plaintiff is now working full-time as a manager for the Beirut Hellenic Bank and the opinion of Dr Bodel, qualified for the plaintiff, is this: "This lady has returned to full-time clerical work and duties and she should be able to continue with that indefinitely." 169However, in my view, some allowance should be made for future economic loss by way of a buffer or cushion. The question is how might that be determined? Any future time off work would be because of the need to undergo perhaps treatment such as physiotherapy or because of a flare up of pain. Once upon a time, a flare up of pain at work was thought to be compensable because of the aggravation, et cetera, of a pre-existing disease. However, since workers compensation law was changed to require employment to be a substantial contributing factor, one can accept that if the plaintiff's symptoms really flared up at work there would be a denial of liability by the insurer of the Beirut Hellenic Bank. 170If one looks at all the plaintiff's taking one week off work per year over the next eleven years, her future working life, one gets a figure of $7,645. As time goes on, the amount of time that may be needed to be taken off work might increase. Furthermore, there might be a need for the plaintiff to leave the Beirut Hellenic Bank for a reason connected with that bank itself, which might throw the plaintiff on the open labour market where I accept there might be some impediment in her getting a similar job again. I propose to allow the plaintiff a buffer of $10,000 for future economic loss. 171Past superannuation is eleven percent of $10,720, which is $1,180 rounded up. 172Relying upon the decision of the Court of Appeal in Najdovski v Crnojlovic [2008] NSWCA 175, based on amendments to the superannuation legislation, the plaintiff claims 13.2 percent of future economic loss for loss of future superannuation. There is no suggestion 173The plaintiff's remaining claims are for past and future domestic assistance. For past domestic assistance the plaintiff claims ten hours per week gratuitous care over the past five years, and for future domestic assistance the plaintiff claims ten hours paid care per week for the rest of her working life. With a discount of ten percent, the first is a lump of $59,800 and the second is a lump sum of $304,200. 174If one takes literally the estimates of the number of hours given to the plaintiff by way of care by her husband Stephen, by her son, Strato and by her daughter-in-law, Georgina, the wife of her son George, they provide between thirteen and twenty hours assistance to the plaintiff per week. However, that assistance includes washing and ironing clothes, cleaning and food preparation not only for the plaintiff but also for Stephen and Strato. The plaintiff has qualified an expert in the field, Ms Nicki Ross, an occupational therapist. Ms Ross estimates that the total number of hours of care required during the first two years after 13 February 2008 was 7.95 hours per week. Thereafter, Ms Ross calculated the need for care was 5.05 hours per week and that is the amount of ongoing care as well. 175The current recension of s 15 of the Civil Liability Act 2002 is not before me. However, as I understand it, for gratuitous attendant care services the plaintiff must require them for at least six months and for at least six hours per week. Under subs (2)(b), the Court must be satisfied that the need for such gratuitous attendant care services has arisen or arose solely because of the injury to which the damages relate. 176Here the period during which the attendant care services could be given was from 13 February 2008 to the time that the plaintiff went to Greece on 18 May 2008. That is a period of just over three months. The plaintiff then returned from Greece on 22 July 2008 but, as I have earlier found, the symptoms of her left hip condition, which is not related, arose in September 2008 and based on the records of Dr Aravanis on 12 September 2008. That is a period of some one and a half months. Since the left hip problem arose, the left hip has become much more symptomatic and indeed is the greatest ongoing problem that the plaintiff has. 177While I can accept that the plaintiff in the calendar year 2008 may have had care for ten hours per week, I am not satisfied that she had the need of that for six months solely referrable to the injury she sustained in the slip and fall on 13 February 2008. Once the left hip comes into play, that becomes one of the problems for which she requires the gratuitous attendant care services. The plaintiff, of course, gave evidence that she would, if she had the wherewithal, pay for attendant care services now. However, in the grand scheme of things, the plaintiff's need for attendant care services is now referrable to her hip rather than the condition of her knee or low back, which does not prevent her from holding down a full-time job at a bank. 178I am therefore not persuaded on the balance of probabilities that the plaintiff has satisfied the threshold to recover damages for past gratuitous attendant care services nor that she requires future paid attendant care service because of pathology solely related to the injury she sustained in the fall on 13 February 2008. Those claims fail. 179If my calculations be right, which is always problematical, that amounts to $61,990.80. 180I shall hand the figures and the calculator to my Associate so that he can verify that and I would ask the solicitors present at the Bar table to tell me whether they agree that that is the total of those sums. HAWKES: I agree, your Honour. KRANZ: Yes, agree. HIS HONOUR: Everyone agreed. I'll get Tom to agree. Five heads are better than one. The solicitors for the parties before me and my Associate now agree that the sum which I announced as the total of the damages is a correct mathematical calculation. 181I therefore find that had the plaintiff recovered a verdict it would have been for a sum of $61,990.80. 182As distinct from orders et cetera, does anyone want any further reasons for judgment? HAWKES: No, your Honour. HIS HONOUR: No. No. Everyone happy? 183I have enquired of the solicitors for the parties if any further reasons for judgment are required and I am told that none are so required. 184For those reasons: (a)I give verdict and judgment for the first defendant against the plaintiff; (b)I give verdict and judgment for the second defendant against the plaintiff; (c)I order that the first cross-claim be dismissed; (d)I order that the second cross-claim be dismissed. ********** 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: 28 May 2013