District Court New South Wales Medium Neutral Citation: Cavric v Willoughby City Council [2014] NSWDC 46 Hearing dates: 28/04/2014 - 01/05/2014 Decision date: 07 May 2014 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for the defendant Catchwords: Pedestrian accident in car park. Definition of public road. Legislation Cited: Civil Liability Act 2002 Roads Act 1993 Local Government Act 1993 Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144 Botany Bay City Council v Latham [2013] NSWCA 363 North Sydney Council v Roman [2007] NSWCA 27 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Category: Principal judgment Parties: Despina Cavric (Plaintiff) Willoughby City Council (Defendant) Representation: K Andrews (Plaintiff) R Gambi (Defendant) NSW Compensation Lawyers (Plaintiff) Mills Oakley Lawyers (Defendant) File Number(s): 2012/00383072 Publication restriction: No Judgment 1The plaintiff was born in 1974. In 2011 she was injured while pushing a shopping trolley within a car park owned by the defendant. She says her injuries were caused by the defendant's negligence. She has sued for damages. 2The defendant, a local council, has denied liability and raised a number of defences provided by the Civil Liability Act 2002 (the "CLA"). The defendant also disputes the nature and extent of the plaintiff's injuries. 3Both liability and the assessment of damages are governed by the CLA. The plaintiff's background 4This is generally set out in the chronology (Exhibit K). The plaintiff was married in 2004. In 2006 the plaintiff went on maternity leave to have her first child. He was born in June 2006. Her second child, another boy, was born in August 2007 and a third, a girl, in August 2009. 5The plaintiff lives in a large home in Northbridge. It has five bedrooms and four bathrooms. As at June 2011 the plaintiff was cleaning the whole of the house, doing all the shopping, cooking, washing and ironing and even some gardening. Her husband, Ned, managed to fit in lawnmowing as his contribution. His parents own the Northbridge house. They rent and live in a property nearby. They occasionally helped with the children but not with domestic activities. 6Mr Ned Cavric is an only child. Mr Cavric's occupation was a little hard to pin down. According to the plaintiff he was on the board of a mining company, was a property developer and provided consultancy services in marketing to her solicitors, NSW Compensation Lawyers. The last area of occupation is contradicted by Exhibit 6. The evidence in relation to the use of credit cards by the plaintiff and her husband was, at least, baffling. I had the distinct impression that there were issues concerning the plaintiff's husband that were not being disclosed. They were not however issues that were relevant to the plaintiff's claim although her obvious guarding about her husband did not assist her credit. 7Following the birth of her third child the plaintiff returned to part time work and was teaching at Liverpool Boys High School for three days a week. She hoped to return to fulltime work in 2013. She had ambitions of becoming a head teacher and perhaps an administrator in a regional office. From time to time she worked as a relieving head teacher. She "loved" and "thrived" on the extra responsibility. The accident 8The defendant, as I have said, owned the car park where the accident occurred. It adjoins Northbridge Plaza and provides a venue for shoppers to park their vehicles. The plaintiff's practice was to park as close as possible to the centre because she felt this was safer. The car park was on a slope going downwards away from the shopping centre. 9On 6 June 2011 the plaintiff could not find a parking spot where she normally parked so had to park some distance from the entrance to the centre. She was accompanied by her then almost two year old daughter and almost four year old son. The plaintiff went to Woolworths and filled her trolley with the family's weekly shopping needs. This included large bags of disposable nappies. 10The trolley was so full that the plaintiff could not see over the front of it. She said it was not overly heavy. Her daughter was seated in the trolley and her son was on her right holding the side of the trolley. 11The trio exited the shopping centre and made their way towards the plaintiff's vehicle. Because of the downwards gradient the plaintiff had to pull back on the trolley. The plaintiff went into what she described as the second section of the car park when, suddenly, the trolley tilted to the left. The plaintiff desperately tried to prevent the trolley from falling over, being especially concerned about her daughter who was still seated in the trolley. Her efforts failed and the trolley fell onto her and her daughter then also fell on top of her. Neither child was injured. 12It was suggested to the plaintiff that her version was impossible. How could she have fallen under the trolley if it was moving forward and she was behind it? It was put to her that she did not know if the trolley had gone into a pothole. Rather the hole seen in Exhibit A was identified by her and her husband after the event as being a reconstructed explanation for what had happened. The plaintiff adamantly rejected these suggestions saying she saw the pothole immediately after her fall and even remarked on it to one of the ladies that rendered her assistance. 13The plaintiff was cross-examined on a letter she wrote to a community newspaper called the 202 (Exhibit B, page 535). It was suggested the version given in the letter described a different mechanism for the accident. She rejected this suggestion, saying the letter, as edited and published, did not contain all the material she had included in the original. The original could not be produced because it had been created on a computer that has since been discarded. 14There is also a version to be found in Exhibit F, which is the Northbridge Plaza report of the incident. The description must be treated with some caution because it is clearly a summary of what someone was told. However, I do note that there is reference to "a small dip at the Council parking area". I also note that the plaintiff was apparently well enough to return to the Plaza later on the day of the accident to make the report. 15I think it necessary at this stage to reach a conclusion on how the plaintiff came to be injured. The defendant led no evidence to contradict her version. Cross-examination was based on a conceptual approach that the accident could not have happened in the way alleged and reliance on the version given by the plaintiff to the newspaper, 202. The defendant further asserted that the plaintiff would not have had the inclination or presence of mind to observe the pothole. It was suggested that because she would have been concerned with the welfare of her children and herself that she would not have recalled seeing the hole. 16I reject the defendant's submissions. Firstly, the plaintiff's credit was not imperilled to such an extent that I would not believe what she told me about the accident. Secondly, I accept that she did observe the hole following the fall and she did return later to make a complaint, which included reference to a "small dip". I think this description is consistent with the pothole that can be seen in Exhibit A. The plaintiff's reference to a jolt is also consistent with the front wheels of the trolley going into the hole, becoming jammed and then the trolley tilting to the left. 17Accordingly I am satisfied that the accident happened in the manner described by the plaintiff and it was caused by the front wheels of the trolley going into the pothole, becoming stuck and then resulting in the trolley tipping over. After the fall 18Passers-by rushed to the plaintiff's assistance. They lifted her up, righted the trolley and gathered the dispersed shopping items. The plaintiff was assisted to her vehicle which was loaded with her children and the shopping. She telephoned her husband who in turn alerted his parents that she would be returning home shortly. After sitting in the car for some time crying the plaintiff drove the one or two minutes to her home. She was met by her parents-in-law who assisted with the children and the shopping. 19The plaintiff took Panadol and applied some heat packs. The heat packs belonged to her husband. She was in a great deal of pain, in particular in her neck, upper back, lower back, left hip and right thigh. She had landed on her left side. 20The following day the plaintiff attended the Northbridge Medical Centre. Her usual general practitioner, Dr Zaverdinos, was away so she saw a Dr Uebel. The doctor suggested continuation of Panadol and referred the plaintiff for x-rays. At the end of the week the plaintiff returned to the medical centre and saw a Dr King. She prescribed Valium. 21Some time later the plaintiff was able to see Dr Zaverdinos and he referred her for physiotherapy. This was not successful, especially when the plaintiff experienced severe pain following the application of acupuncture needles to her neck. 22As can be seen from the chronology the plaintiff was later referred to a number of specialists, including Dr Giblin, an orthopaedic surgeon, Ms Pellarini, a psychologist, Dr Ayscough, another orthopaedic surgeon, and then to a Dr Mock, a pain specialist. The plaintiff said she sees Dr Mock about every two or three weeks. On each occasion he gives her 15 to 20 injections which, after an initial period of pain, assist in relieving her symptoms. The assistance dissipates by the time of the next consultation. 23The plaintiff described the injections that she receives from Dr Mock as "glucose injections". Dr Mock's reports are singularly unhelpful in explaining these injections. For example, I do not know how they address the plaintiff's problems and I do not know why 15 to 20 injections are needed. He refers to the injections in Exhibit E as "prolotherapy dextrose" injections. Unfortunately Dr Mock was not required for cross-examination. While I have some difficulty in understanding the nature and mechanics of his treatment I do accept that the plaintiff apparently derives a great deal of benefit from the injections. 24The first dextrose injection was given on 17 July 2013. They had not been as frequent as the plaintiff said in cross-examination but nevertheless there have been a fairly regular series of injections as disclosed in Exhibit E. The plaintiff's evidence was clear to the effect that prior to the injections her condition was significantly worse. 25The first date of which surveillance was shown is 29 May 2013 (Exhibit 1). The depiction of the plaintiff on this day and also on 2 July 2013 substantially supports the description she gave of her condition. There is another important element of the footage exposed on 2 July 2013. This is the day that Dr Mock gave the plaintiff a cortisone injection. In her evidence she said she found this extremely painful. This seems to be corroborated by the video, which shows her prior to the injection being given and then after the treatment. My assessment of the footage is that the plaintiff seems in considerably more discomfort after the injection. I note, for example, that whereas she drove her mother's motor car before the medical appointment, her mother drove afterwards. If there was a benefit to the defendant from the footage on this day, it is the apparently free range of movement that the plaintiff has in her neck. 26As far as her back and knee are concerned I think the video exposed on 29 May and 2 July 2013 give the plaintiff general support. 27The surveillance continues on 3 April 2014 (Exhibit 2). The plaintiff now seems to be walking more freely, although I noticed some hesitancy when she moved into her motor vehicle (8.36am). The neck motion is again apparently quite unrestricted (for example at 10.18am). When sitting in the cafeteria the plaintiff seems to change positions frequently, although I would observe that perhaps her tolerances are greater than she described. The surveillance then continues on 5 April. This footage is mostly concerned with the plaintiff's presence at a sporting event. She does bend on occasions but these actions also include apparently bending forward for relief (for example at 11.10am and 11.12am). 28The effect of the video footage is far from dramatic. To a large degree it supports the plaintiff's contentions. The best that the defendant can draw from the surveillance is that the plaintiff's neck movements are significantly more free and unrestricted than the impression she gave in the witness box and her sitting and standing tolerances are probably greater than she described to the various medical practitioners. As far as the plaintiff's back is concerned I do not think the surveillance assists the defendant's case. 29The plaintiff also saw a psychiatrist, Dr Norrie, for some time but no longer does so because she does not wish to talk about her problems. Dr Norrie encouraged her to go out as much as possible and she has done so. She received the same advice from Ms Pellarini (Exhibit B, page 15). 30Dr Norrie commenced the plaintiff on Endep, an antidepressant. After some increases in dose the drug has had a positive effect on the plaintiff's depression. The plaintiff now receives the prescriptions she needs from Dr Mock. 31The plaintiff said her relationship with her husband has suffered. She yells at him. Intercourse is painful. This was partly due to back pain but also to a gynaecological problem for which surgery has been recommended, but not undertaken. The plaintiff is also short tempered with her children. She is distressed that she cannot "hold" her daughter. 32The plaintiff's return to work was interrupted by her injuries. She did make attempts to maintain the three days but it was soon cut down to two days and eventually in 2013 she took the year off using her accumulated sick leave and long service leave to enable her to do so. The plaintiff resigned from work at the beginning of 2014. 33The plaintiff continues to suffer pain mainly in her neck, left shoulder, low back, left hip, left leg and left knee. Besides Endep, she takes Oxycontin, a pain medication, and Lyrica, a nervousness drug, on a regular basis. 34The plaintiff has never been able to return to all her home duties. Her husband, her mother or her parents-in-law initially performed them. In 2012 she engaged a cleaner. Her current cleaner charges $200 per week and does almost all of the duties that the plaintiff used to perform. A gardener was engaged for some time but this has ceased. Her husband still manages to mow the lawn. He also does cleaning up after meals. The plaintiff thought he did about 4 hours a week. 35The plaintiff's mother visits on weekends, often bringing meals. She lives some distance from the plaintiff. 36The plaintiff still receives assistance from her parents-in-law in addition to the cleaner. Her father-in-law comes in for about an hour each weekday morning. He brings breakfast and helps prepare the children for school. He sometimes takes them to school. He may come back in the afternoon to work in the garden. The plaintiff estimated he provided about 6 to 7 hours of help a week. His wife prepared some meals and sometimes helped with cleaning up after meals. She contributed about 1.5 to 2 hours a week. 37The plaintiff tries to go out to have coffee with other mothers and, when she feels up to it, she goes to Chatswood Chase Shopping Centre. If she does have an outing she needs to return home after a short time to lie down. 38The plaintiff prefers to shop at Coles at Chatswood Chase because there is valet parking and shallow trolleys. If she does shop at Northbridge, and her husband is not present, the plaintiff uses plastic baskets with wheels and a long handle. Video surveillance at this centre on 2 July 2013 shows her eldest child pulling a shopping trolley. This may have been at his own instigation but is at least consistent with her evidence that her children are mindful of her condition. 39The plaintiff was assessed for the ADAPT pain management programme at Royal North Shore Hospital on 5 March 2013. She was accepted into the programme but has not participated. She is ambivalent about commencing because although she wishes to have the benefit of the programme, she does not want to relive her experiences since the accident. This is the same reason she stopped seeing Dr Norrie and taking up other suggestions of psychological treatment. The plaintiff now only sees Dr Mock because he, using "glucose" injections, provides her with some relief. 40Dr Mock's latest report (Exhibit J, page 2) suggests the plaintiff will attend the programme. 41The relief from the injections helps the plaintiff improve her posture. She is usually stooped over. This was her presentation both in the witness box and walking to and from it. She said her last injections were two weeks ago and the next set was due in the course of the hearing. I also note the plaintiff consistently changed position in the witness box, frequently appeared to grimace in pain, and was often tearful. 42The plaintiff agreed that, with the exception of her left knee, the doctors she has seen for treatment have told her that the various scans she has undergone have not revealed a cause for her pain. An MRI scan of her left knee in February 2012 revealed a torn meniscus. She saw Dr Roe, a knee specialist, about this result but he does not seem to think the injury explains the level of her symptoms (Exhibit B, page 53). 43The defendant has referred the plaintiff for medical examinations. These have included an appointment with Dr Potter, a psychiatrist, and Dr Ryan, a neurosurgeon specialising in orthopaedic injuries. Reports from these two doctors have not been served and I infer these reports would not have assisted the defendant's case. 44The defendant's approach to cross-examination of the plaintiff was to establish that she was exaggerating her injuries and their effects. I accept there may have been some exaggeration and placing of her 'best foot forward'; however in general terms I accept that she was injured to a greater extent than suggested by the defendant. This is supported by the video evidence and by her continuing treatment. Even if there is a substantial psychosomatic element to her pain, I would find it difficult to accept that she would subject herself to Dr Mock's regime of treatment without a genuine belief in a need for the injections. 45The defendant's case extended to a suggestion being put to the plaintiff that she had fully recovered within "a couple of weeks", and that she had certainly recovered sufficiently by July 2013 to carry out her pre-accident employment. These submissions were put in the total absence of any medical support. I have already referred to the defendant not relying on the medico-legal reports it had obtained. It did not have any other medical support, other than the occupational therapist's report (Exhibit 7), which certainly does not justify the suggestions put to the plaintiff. To the contrary this report actually suggests future domestic assistance, entirely inconsistently with the submissions put on behalf of the defendant. 46The surveillance material was first exposed in 2013. Even if my assessment of it was wrong it certainly could not justify the suggestions put to the plaintiff. 47The plaintiff's sister, Mrs Tanny Mangos described the plaintiff, before the accident, as outgoing and an "impeccable" housekeeper. Since the accident she had lost enthusiasm and was much less social. 48Mrs Mangos thought there had been deterioration in her sister's condition over the last 12 months. This is contrary to the plaintiff's evidence and also to my findings. I derived little assistance from Mrs Mangos's evidence. 49The persons who could have given useful 'before and after' evidence were the plaintiff's husband, mother and parents-in-law. Not one of them was called. There was no explanation given to justify their absence. I infer their evidence would not have assisted the plaintiff's case. 50I think it now necessary to come to some conclusions about the effects of the accident on the plaintiff. 51Other than for the left knee there is no objective evidence of injury. The various x-rays and scans have not disclosed any objective signs. 52Dr Giblin, an orthopaedic surgeon, said "this lady obviously has a soft tissue injury ..." (Exhibit B, page 89). He referred her to Dr Ayscough who could not take the matter much further and referred the plaintiff on to Dr Mock. 53Dr Dixon, another orthopaedic surgeon, diagnosed neck and back strains as well as the direct injury to the left knee. In other words he could not take the matter much beyond the diagnosis of Dr Giblin. 54Dr Mastroianni, a consultant occupational physician, was of a similar view (Exhibit B, page 86). 55Dr Mock is the plaintiff's current treating specialist and she apparently relies a good deal on his services. As I have already said, I have some difficulty understanding precisely what the treatment is. I am also not certain of how one would categorise Dr Mock's qualifications. Besides the general medical degree he has a "Master of Medicine Physical Medicine (Sydney)". I do not know what this means. In his most recent report (Exhibit J) Dr Mock gives the following diagnosis: "Mrs Cavric has the following problems as a result of her fall 1) Chronic pain syndrome with neuropathic pain. 2) Post traumatic stress disorder 3) Left SI dysfunction 4) Cervical segmental dysfunction" 56The majority of Dr Mock's treatment seems to be dedicated to the plaintiff's low back or sacroiliac area. This in my view is the area that causes her the greatest problems. I do not accept the extent of the neck injury that she alleges. This conclusion is primarily based on the surveillance material where her neck movements are significantly greater than those she described or exhibited in the witness box. This is not to say she did not suffer a soft tissue neck injury, only that I do not accept the alleged severity of the injury. 57In relation to the plaintiff's back, I have already said that I would find it very difficult to conclude there was gross exaggeration when she is prepared to undergo the treatment she is receiving. In addition, she has some support from the surveillance. Again, as already stated, the surveillance also corroborates the improvement in her condition that has arisen since Dr Mock's treatment began. Whether this treatment is the sole cause of the improvement or whether there is a psychosomatic element in it, I cannot say. I do however think the plaintiff has suffered a psychological injury as described by Drs Morse and Norrie. I have no doubt that her psychological injury is impacting both on her perception of her physical injury and her capacity to recover. 58The plaintiff is however in my view improving, both in relation to her depression and her physical status. I would not be prepared to conclude that her injuries are permanent but rather take the view that with the continuation of Dr Mock's treatment, the introduction of the ADAPT Programme and ongoing psychological intervention, that the plaintiff is likely to fully recover over a period of years. 59The plaintiff's presentation in the witness box was characterised by her stooping posture and frequent tearful episodes. Her movements to and from the witness box suggested a person finding it difficult to walk and needing to be quite bent over. As I have said there is some corroboration for this physical presentation in the surveillance footage. However, taking into account the improvement in the plaintiff's condition since the injections started, I think there was an element of exaggeration in her movements and posture in court. 60I also think the plaintiff's evidence about her initial limitations are contradicted by her bank statements, which to the extent that the entries can be attributed to her, display a wider range of activity than she allowed for in her evidence. Liability 61The starting point for liability is the defendant's reliance on Section 45 of the CLA. This is a gateway provision through which a plaintiff must travel if the injury occurs in circumstances falling within Section 45(1). I think it worth including the section in these reasons: "45 Special non-feasance protection for roads authorities (1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. (2) This section does not operate: (a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or (b) to affect any standard of care that would otherwise be applicable in respect of a risk. (3) In this section: carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993. roads authority has the same meaning as in the Roads Act 1993." 62The defendant submitted that it was a roads authority. The plaintiff submitted the defendant was not a roads authority at least in respect of the car park. This was because the car park was not a public road. The plaintiff's argument went as follows: (a)A roads authority is defined in the dictionary of the Roads Act 1993 to mean "a person or body that is, by or under this Act, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road". (b)The dictionary defines a public road as: "(a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act." (c)Section 163 of the Roads Act requires a roads authority to keep "a record of the public roads for which it is the roads authority". (d)The car park was community land under the Local Government Act 1993 (the "LGA"). (e)Section 10 of the Roads Act allows for the dedication by a council of land held by it as a public road. (f)Under Section 47F of the LGA community land may not be dedicated as a public road under Section 10 of the Roads Act unless "... (c) there is a plan of management applying only to the land concerned and provision of the public road is expressly authorised in the plan of management". (g)There was no dispute that there was no plan of management in respect of the car park and that it had never been opened, dedicated or declared to be a public road. (h)Consequently, submitted the plaintiff, if the car park had never been dedicated as a public road then it was not a public road and the defendant could not be a roads authority in respect of it. 63The defendant's response to the plaintiff's argument was that the absence of a dedication as a public road did not necessarily mean that the car park was not a public road. The defendant's position arises from Section 249(1) of the Roads Act, which states: "(1) Evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of a public road." 64This section, which I think is consistent with Section 7(4) of the Roads Act, does not require any compliance with other sections of the Roads Act or the LGA in order for the conclusion to be reached that a place is a public road. 65Section 249(1) received detailed analysis in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364. 66I think the starting point, for present purposes, in the analysis of this case is paragraph 103 in the judgment of McColl JA. In this paragraph it is specifically stated, as is the case here, that the area in question had not "been opened, dedicated or declared to be a public road within the meaning of the Roads Act". Notwithstanding this, her Honour found that the place at issue in Stojan was a public road by reference to Section 249. 67In paragraph 105 her Honour set out the test arising from the section. She said: "[105] Section 249(1) requires three conditions to be satisfied. First that a place form "part of a thoroughfare", secondly that that thoroughfare be "in the nature of a road" and thirdly that the place "is so used by the public". The Roads Act does not provide express guidance on those terms save, that it should be observed that it is apparent from the generality of the first object (s 3(a)), that the rights of members of the public to pass along public roads means in whatever manner, whether by foot or in a vehicle. That should be borne in mind when considering the expression "in the nature of a road"." 68At paragraph 109, in relation to a thoroughfare her Honour said: "[109] The ordinary meaning of a "thoroughfare" has been held to be "a road which, either regularly or by license, passes from one place to another, not necessarily by a specifically defined way, but generally by getting from one place to another over an intervening space, by right or by permission of the owner": Sheahan v Jackman (1898) 4 Argus LR 47 (at 48) per Madden CJ, cited in Re appln for a Writ of Certiorari against the Shire of Gingin; Ex parte Machlin (1999) 103 LGERA 21 (at 30) per Murray J. The "primary meaning of a road or thoroughfare is that people usually pass along it": Sheahan v Jackman (at 48)." 69In paragraph 111 her Honour said that: "The car park is more problematic, at least insofar as vehicular traffic is concerned. Vehicles presumably used the car park for the purpose for which it was intended, to park their cars then go about their business. In other words, the car park was not used as a thoroughfare for vehicular purposes." 70Her Honour then went on to say that the "car park was clearly used as a thoroughfare by pedestrians and, accordingly the first and second conditions of Section 249(1) are satisfied in that respect too". 71The car park in the present case, while serving as a place in which shoppers at the Plaza would park their cars was also a thoroughfare used by pedestrians so that, as in Stojan, the car park must satisfy the first two conditions identified by McColl JA. In relation to the third condition, the car park was used by the public to make their way either from their motor vehicles to the shopping centre or perhaps even as a thoroughfare from Eastern Valley Way or Harden Avenue, as pedestrians, to the shopping centre. There are aerial photographs showing the surrounding streets in Exhibit P. It was common ground that there were two means of accessing the car park, one from Eastern Valley Way, the other from Harden Ave. 72It follows that the three conditions required by Section 249(1) are satisfied so that there is "evidence that the place is or forms part of a public road". 73Once the car park becomes a public road then, in relation to it, the defendant must be seen as a roads authority. In turn the application of Section 45 of the CLA is triggered. 74Foreshadowing this eventuality the plaintiff submitted that it was not fatal to her case. She said that the protection given by Section 45 would not apply because "...at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm" (Section 45(1)). 75The plaintiff submitted that the various visits by Council employees to the area, the complaints from the public and the previous work done in the car park provided sufficient evidence from which it could be inferred that the defendant had actual knowledge of the particular risk. 76In this regard the plaintiff took me to a number of documents, mostly in Exhibit B, to establish the point. Without listing all of them, they included: (a)The Safety Assessment conducted in 2005 (Exhibit B, page 328). (b)The letter to V & J Wellington, especially on the second page (Exhibit B, page 348). (c)The media release in 2009 (Exhibit B, page 410). (d)The letter from Northbridge Progress Association dated 16 March 2011 (Exhibit B, page 493). (e)The 2011 email detailing previous incidents (Exhibit B, page 523). (f)The letter from Council's General Manager dated 12 August 2009 (Exhibit B, page 526). (g)The 202 article in April 2011 (Exhibit B, page 528). (h)The inferred presence of Council employees on 7 May 2011 (Exhibit B, page 545). 77The defendant's response was twofold: (a)Firstly there needed to be evidence of knowledge by a person at the Council who could, in effect, have done something about the problem, and (b)The knowledge had to have been of the actual pothole that caused the plaintiff's accident. 78In respect of the first of the above two points the defendant primarily relied on North Sydney Council v Roman [2007] NSWCA 27. This was a majority decision of the Court of Appeal. The majority was constituted by Bryson JA and Basten JA. McColl JA was in the minority. The plaintiff submitted that in a later decision, Blacktown City Council v Hocking [2008] NSWCA 144, the decision of McColl JA was stated to be correct, thus overturning the majority in Roman. The defendant disputed this assertion stating that while Tobias JA in Hocking said that McColl JA, in Roman, had been correct, that endorsement was not common to the whole court, or even a majority, thus leaving the majority decision in Roman as the correct statement of the law that I should apply. 79There is no doubt that Tobias JA prefers the reasoning of McColl JA (paragraph 223 of his judgment); however, as I read the judgments of the remaining members of the court in Hocking they do not express agreement with Tobias JA in respect of this point. There is however a greater problem for the plaintiff. Even on the views of Tobias JA the plaintiff faces significant obstacles. Tobias JA still agrees with Basten JA (in Roman) that relief from Section 45(1) "only arises where at the time of the alleged failure of the authority to carry out roadwork it had actual knowledge of the particular risk ..." (paragraph 223(g)). A little later he says the following: "(h) The critical consideration is the requirement in s 45(1) that knowledge of the relevant risk must be "actual" as distinct from "constructive". The fact that an officer of an authority whose responsibility it is to inspect roads for the purpose of ascertaining the existence of hazards would, had such an inspection been carried out carefully, have discovered the existence of a hazard is insufficient in the absence of actual knowledge on the part of that officer of its existence. The fact that such an officer should or ought to have had knowledge of such a hazard is insufficient: actual knowledge must be established, either directly or by inference from proven facts." (emphasis added) 80The difficulty facing the plaintiff is to establish that whether directly or by inference any Council employee had actual knowledge of the pothole. 81The plaintiff's submission was that because the records indicate visits and work by Council employees to the site it could be inferred that those persons would have seen the pothole. 82Unlike Hocking there is no evidence in this case that would allow me to reach any conclusion about the age of the pothole. Further, it was common ground that the pothole had been previously repaired and that the repair must have broken down. There is, however, no basis upon which I could reach a conclusion about how long the pothole had been in the state it existed on the day of the accident. Mr Adams (Exhibit B, page 144) does not assist and I can draw no findings from the photographs. In other words there is no evidence that would assist me to say that a Council employee on any particular day would have seen the pothole in the state it was on the day of the accident. 83In order to draw an inference that a council employee had seen the pothole in its dangerous state there would need to be evidence, even if by inference, that the pothole had been dangerous for a period of time. At this stage of the inquiry I am not concerned with whether or not there was a proper system of inspection. That question might be relevant to a finding of negligence. At this stage the plaintiff must show there was actual knowledge of the risk. It is not enough that there should have been actual knowledge. 84It follows that I could not conclude that the defendant had actual knowledge of the risk. 85The second issue that I outlined above concerned whether or not the knowledge of the defendant must have been of the actual pothole as opposed to the general state of the car park. The defendant relied upon the decision of Adamson J, sitting in the Court of Appeal in Botany Bay City Council v Latham [2013] NSWCA 363. Her Honour said the following, commencing at paragraph 45: "[45] Ground 3 raises the application of s 45 of the Act. The "harm" referred to in the last words of s 45(1) is a reference to the "particular harm" which has resulted from the materialisation of the "particular risk", being the "particular harm" to which the determination of causation in s 5D is addressed. [46] It follows that "the particular risk" is s 45(1) is at the same level of generality. In this case, given the way Ms Latham put her case that a particular paver that was uneven or irregular caused her to trip, the actual knowledge required is actual knowledge of the particular risk posed by the unevenness or irregularity of the very paver that caused her to trip and fall. It would not be sufficient for the Council to know of the more general risk that she might trip and fall on an area of irregular pavers between the tree and the adjacent building, as was contended on her behalf on the appeal." 86The plaintiff submitted that the present case could be distinguished from Latham because in the latter case the pleadings directed the negligence at the particular paver that caused the plaintiff's fall. In the present case the pleadings attacked the state of the car park more generally. 87The difficulty with the plaintiff's argument is that the particular risk is the pothole into which the trolley descended. This is the risk of which the Council was required to have actual knowledge. Accordingly I do not think any distinctions in the breadth of the pleadings between the present case and Latham are of any assistance to the plaintiff. 88The plaintiff did not suggest that any necessary action to repair or maintain the car park would not have been "road work" within Section 45. 89The result of the above is that I have found that the car park is a public road, the Council is a road authority entitled to the protection of Section 45 and the plaintiff has failed to establish the exception provided by Section 45(1). The plaintiff's case must therefore fail. Accordingly I will enter a judgment for the defendant. 90Notwithstanding the conclusion I have reached I think it important for me to express my views on the assumption that this conclusion is wrong. I will do so as briefly as possible but hopefully giving sufficient reasons for my findings. 91Had I found that the exception in Section 45 applied it would first of all have been necessary for me to approach the matter on the basis of the duty of care owed by a roads authority. This was stated in the following manner by McColl JA in Stojan. "[118] As a roads authority, the Council was obliged, if the state of the stairs, whether from design, construction, works or non-repair, posed a risk to road users, to take reasonable steps by the exercise of its powers within a reasonable time to address the risk." 92My next task would have been to approach the facts having regard to Section 5B of the CLA. The defendant conceded that Section 5B(1)(a) and (b) were not in issue. It did, however, contest Section 5B(1)(c), submitting that a reasonable person in the Council's position would not have taken precautions to deal with the risk. I would have been against the defendant on this point. The only subsection of Section 5B(2) that the defendant relied upon was (a). In my view the failure to take precautions would have raised a significant probability that harm would occur. The pothole was in an area often and well traversed by shoppers with trolleys that might be heavily laden, including with children. A trolley going into a pothole in the circumstances, and falling over, would be likely to cause harm not only to the pusher of the trolley but also to any child seated within it. 93No submissions were put to me in relation to Section 5D. I would have found that but for the negligence of the Council (arising under Section 5B) that the injury to the plaintiff would not have occurred. I do not think this was seriously disputed if I found the plaintiff's injuries were a product of the fall. 94It follows that I would have found in favour of the plaintiff if she had passed through the Section 45 gateway. 95My next task would have been to address contributory negligence under Section 5R. The plaintiff submitted that there was no contributory negligence because she was, as many people do, simply pushing a trolley through the car park with no reasonable expectation that there were any hazards ahead of her. The defendant submitted that the plaintiff was aware of hazards, as disclosed in her letter to 202 (Exhibit B, page 535) and she could, for example, have taken smaller loads of shopping to and from her vehicle. Alternatively she did not need to do the entire shopping list on the one day but, bearing in mind she was working part-time, she could have spread her shopping requirements over more than one day. 96My initial reaction was that there should not be any contributory negligence because of the impracticalities facing a mother with three young children in having to spread her shopping through the week as opposed to achieving it on the one occasion. On further consideration however, having regard to the plaintiff's apparent knowledge of hazards in the car park, I am of the view that she should have exercised more care in proceeding towards her car with both a child and a heavily laden trolley. The plaintiff made the decision to do the shopping "in one go" when there were alternatives available to her. She lived very close to the Centre and presumably could have visited on other occasions during the week. Although not raised in evidence one must also consider the possibility of having supermarket items delivered. I would have assessed contributory negligence at 15%. Damages 97The plaintiff submitted that non-economic loss should be assessed at 30% of a most extreme case under Section 16 of the CLA. The defendant said 20%. On my findings that the plaintiff suffered soft tissue strains together with a psychological injury I think the appropriate finding is 25%. This is based on the plaintiff having suffered a good deal of pain for an initial period but gradually improving in particular following the instigation of Dr Mock's treatment. In addition my assessment takes into account the plaintiff being depressed, requiring antidepressant medication and having to deal with the interruption to her employment as well as to her physical and mental capacity to interact with her children. 25% of a most extreme case produces a figure of $36,000 under Section 16. 98Out of pocket expenses were agreed at $11,110. 99Future out of pocket expenses were claimed in the sum of $33,502.52. This was based on medication for five years, seeing a pain specialist every two weeks for two years and a psychiatrist also for two years. There was a claim for surgery to the knee and for some aids for the plaintiff's back. The matters disputed by the defendant were the psychiatrist ($6,690.61) and the knee repair ($7,100). 100In respect of the psychiatrist the plaintiff said she had stopped seeing Dr Norrie because she did not want to talk about her problems. She did not say that she would be prepared to return to the same or a different psychiatrist. There was nothing in her evidence to suggest she would seek further psychological treatment. I do not think that amount should be allowed. In respect of the knee there is clearly an objective problem but it does not seem to be causing the difficulties that she asserts. I think the knee should be treated as a matter that might some time in the future become more severe so that the cost should be discounted. I will allow $3,550. The total for future medical expenses is therefore $23,261.91. 101The plaintiff's claim for past economic loss is $72,094. This is based on an agreed net weekly wage of $1,276 commencing in February 2013. The only argument put by the defendant was that the plaintiff would have recovered before 2013. I disagree. Although my assessment does include a continuing recovery the problems with the plaintiff's back would in my view have caused her significant difficulty in continuing to work as a teacher. It is well known that the work of a teacher includes a good deal of standing and moving about a classroom. I think the plaintiff's claim should be allowed in full. Superannuation at 11% on past economic loss is $7,930.34. 102The plaintiff claimed $327,326.16 for future economic loss. This was calculated on the basis of $511 per week, representing two days of salary, until the plaintiff reaches the age of 65 and discounted by 15%. 103The defendant submitted that the plaintiff was capable of returning to fulltime work and that she had not done so as a lifestyle choice. The rate of $511 was agreed. 104In my view the plaintiff enjoyed her work and looked forward to returning to work and continuing her career. For purposes of Section 13 of the CLA I would have found that but for the accident the plaintiff would have returned to work at the beginning of 2013 and continued in employment until at least age 60. I would not have found that there would have been any vicissitudes in excess of the normal 15%. 105I agree with the plaintiff's submission that her current lack of capacity should be restricted to two days a week; however, I do not think the loss should be extended beyond five years. I think that this period allows for her continued improvement to a state in which she could return to fulltime work. 106On the 5% tables $511 per week for five years, less 5%, is $100,552.03. Lost superannuation benefits at 12% is $12,066.24. 107Past domestic assistance was claimed at seven hours per week on a gratuitous basis from the date of the accident to 1 December 2012. The claim was for seven hours per week at $25.41 per hour. Paid care was then claimed in accordance with the evidence, namely 62 weeks at $160 per week followed by 55 weeks at $200 per week. 108There was no evidence from the plaintiff about the number of hours that were spent by persons providing assistance to her on a gratuitous basis prior to the engagement of the cleaner. She did give estimates of hours being spent since the cleaners started. These hours are not, however, included in the plaintiff's final submission on damages. 109The plaintiff said the cleaner "did everything". The cleaner (or cleaners) spend eight hours per week cleaning the plaintiff's home. I think it can be inferred that if their services were provided gratuitously they would have not taken any lesser time than the professional cleaners. The plaintiff's claim is however for seven hours per week of gratuitous assistance. In my view this claim is both reasonable and justified. 110I am also satisfied that the plaintiff has continued to need the services of a cleaner because of her low back injury which would prevent the heavy work involved. On the assumption that the plaintiff's husband would have been of little assistance so that the plaintiff would have had to do all of the cleaning work I am satisfied that her injuries would have prevented her from doing so to the present time. Accordingly I allow the whole of the plaintiff's claim for past domestic assistance in the sum of $27,056.52. 111The plaintiff's claim for future domestic assistance is $200 per week for the rest of her life. This produces a figure of $193,320. The defendant submitted there should be no allowance. 112I think I should take the same approach as I took in respect of future economic loss, namely to allow a further five years to permit the plaintiff to return to a state of health in which she would be able to carry out her domestic activities. $200 for five years on the 5% tables is $46,300. 113A summary of the damages I would have allowed is as follows: Non economic loss $36,000.00 Out of pocket expenses $11,110.00 Future medical expenses $23,261.91 Past economic loss $72,094.00 Past lost superannuation benefits $7,930.34 Future economic loss $100,552.03 Lost future superannuation benefits $12,066.24 Past domestic assistance $27,056.52 Future domestic assistance $46,300.00 Total $336,371.04 114The above total would have been reduced by 15% in line with my finding of contributory negligence. The result would have been a verdict for $285,915.39. 115I make the following orders: (1)Judgment for the defendant. (2)The plaintiff is to pay the defendant's costs. 116I will hear the parties on any special costs orders that are sought. ********** 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: 07 May 2014