Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Council of the City of Sydney v Hunter [2014] NSWCA 449 Hearing dates: 24/11/2014 Decision date: 19 December 2014 Before: Ward JA at [1]; Emmett JA at [2]; Simpson J at [62] Decision: (1) Leave be granted to the applicant to appeal from the orders of the District Court made on 10 March 2014. (2) No later than 7 days after the date of these orders, the applicant file and serve a notice of appeal in the form contained in the application book. (3) The appeal be allowed. (4) The orders of the District Court made on 10 March 2014 be set aside and, in lieu thereof, it be ordered that there be a verdict for the defendant, the proceedings be dismissed and the plaintiff pay the defendant's costs. (5) The respondent pay the applicant's costs of the application for leave and of the appeal. (6) The respondent, if otherwise qualified, be granted a certificate under the Suitors' Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - local council's duty of care to pedestrian using footpath - whether the council breached its duty of care by failing to repair tree root damage - whether the pedestrian was taking reasonable care for his safety - whether it was open to the pedestrian to pass by the footpath without treading on the tree roots TORTS - negligence - causation - whether the pedestrian suffered knee injury as a result of a fall from tripping on a tree root in the footpath - whether the pedestrian complained to his general practitioner about a knee injury shortly after the fall Legislation Cited: Civil Liability Act 2002 (NSW), s 16 District Court Act 1973 (NSW), s 127 Cases Cited: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 Category: Principal judgment Parties: Council of the City of Sydney (Appellant) Joseph Hunter (Respondent) Representation: Counsel: R Gambi (Appellant) M Thompson (Respondent) Solicitors: McCabes Lawyers (Appellant) Gerard Malouf & Partners (Respondent) File Number(s): 2014/92962 Publication restriction: Nil Decision under appeal Date of Decision: 2014-03-10 00:00:00 Before: Norton DCJ File Number(s): 2013/39869 Judgment 1WARD JA: I agree with Emmett JA, for the reasons that his Honour gives, that leave to appeal should be granted and the appeal allowed. I agree with the orders his Honour proposes. 2EMMETT JA: By summons filed on 10 June 2014, the Council of the City of Sydney (the Council) applied for leave to appeal from orders made by the District Court on 10 March 2014 in proceedings brought against the Council by the respondent, Mr Joseph Hunter (Mr Hunter). Mr Hunter claimed to have suffered an injury to his right knee and an aggravation of prior right hip and lower back injuries when, on 25 November 2011, he tripped on the roots of a Moreton Bay fig tree growing onto the footpath of Catherine Street, Glebe. 3At the relevant time, the Council had the care, control and management of the footpath of Catherine Street. Mr Hunter alleged that the Council owed him a duty of care as a pedestrian using the footpath and that the Council had breached that duty in: * failing to maintain the footpath properly; * failing to repair root damage to the footpath; * failing to remove tree roots from the footpath; * failing to remove and re-lay the bitumen surface of the footpath at the site of the root damage; and * failing to bar pedestrian access at the site of tree root damage to the footpath. The Council disputed that it had breached any duty owed to Mr Hunter and, in any event, disputed that Mr Hunter had suffered any injury in any fall that may have occurred on 25 November 2011. 4After a trial on 13 and 14 February 2014, a judge of the District Court concluded that Mr Hunter had suffered significant injury to his left knee when he fell on 25 November 2011 and that the injury was caused by the breach of a duty of care owed to him by the Council. The trial judge assessed Mr Hunter's damages at $122,250, but reduced that amount by 20% to reflect his contributory negligence, resulting in a verdict of $97,800. Her Honour entered judgment for that amount against the Council and ordered the Council to pay Mr Hunter's costs. 5Since the amount of the verdict is less than $100,000, leave to appeal is required by s 127(2)(c)(i) of the District Court Act 1973 (NSW). A direction was given for the Council's application for leave to be heard concurrently with the appeal, assuming that leave is granted. 6For the reasons that follow, I have concluded that the trial judge erred in finding that the Council breached its duty of care to Mr Hunter and in finding that Mr Hunter injured his knee in a fall on 25 November 2011. That is to say, I consider that there is an injustice that is reasonably clear, in the sense of going beyond what is merely arguable (see Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69). Moreover, the amount of the judgment in the District Court is only marginally below the amount of $100,000 and, in the circumstances, leave to appeal should be granted. Further, for the reasons that follow, the appeal should be allowed. The Reasons of the Trial Judge 7The trial judge found that, as a road authority having responsibility for the footpath, the Council had a duty to take reasonable care for persons taking reasonable care for their own safety in using the footpath. Her Honour found that the risk of a pedestrian, who was taking reasonable care for his own safety, tripping on the tree root in question, and thereby suffering injury, was foreseeable by the Council. Further, her Honour held, that risk was not insignificant and the chance of someone sustaining a serious injury by tripping and falling on a hard uneven surface was also not insignificant. 8The trial judge found that there was a strong possibility that harm would occur if care were not taken by the Council, since the relevant part of Glebe is a busy part of the Council's area and there could be expected to be a high volume of pedestrian traffic. Further, her Honour found that it could be expected that people of a variety of ages and physical abilities, and people unfamiliar with the area, would be using the footpath. Her Honour found that it was likely that serious harm could result from a fall. 9The trial judge accepted that, on the day in question, Mr Hunter was taking reasonable care for his own safety and that he fell when he tripped on a tree root that had "heaved" through the bitumen of the footpath. Her Honour held that the Council was in breach of the duty owed by it to Mr Hunter, in that it had not cut the roots of the tree and re-laid the footpath. Her Honour held that, on the balance of probabilities, the footpath would have been less dangerous if the Council had taken appropriate action in 2008 (when there had been an inspection of the area) and that it is unlikely that the tree roots would have been as dangerous in 2011 if they had been trimmed in 2008. Her Honour held that, if an inspection carried out by the Council in October 2011 had been carried out with due care, the defect in the footpath would have been noted and action would have been taken to make it "safe". 10On the issue of contributory negligence, the trial judge accepted that Mr Hunter was aware, soon after he turned into Catherine Street, that he was in an area of danger. Her Honour accepted that it was possible that, if Mr Hunter had inspected the area more carefully, he may have been able to avoid the danger. Her Honour thus concluded that it was reasonable to reduce Mr Hunter's damages by 20%. 11The trial judge accepted that Mr Hunter had significant disabilities prior to the alleged fall. Her Honour found, however, that he was able to lead a reasonably full life and enjoyed shopping and was able, with some restrictions, to do his own domestic tasks. Her Honour found that Mr Hunter now has difficulty showering, his knee is sore and affects his sleeping, he has difficulty driving his car, he avoids going to entertainment where he has to sit for long periods because of pain in his knee, he has difficulty climbing in and out of buses and he avoids crowds for fear of being jostled. Her Honour found that the fall on 25 November 2011 was a not insignificant cause of the pathology of his right knee found at surgery in September 2012. Her Honour appears to have found, although it is by no means entirely clear, that certain of Mr Hunter's disabilities were caused by the fall that occurred on 25 November 2011. Her Honour further found that his problems are permanent and that he is likely to continue to develop post-traumatic arthritis and may eventually require a knee replacement. 12The trial judge made the following awards of damages: * Non-economic loss: 26%, which equated to $44,000. * Past out-of-pocket expenses: $2,250. * Future out-of-pocket expenses: the trial judge accepted medical evidence that there was a possibility of the need for future surgery, the cost of which would be $28,400. Her Honour awarded a buffer of $22,000 to allow for that possibility. * Past domestic assistance: the trial judge found that there was a reasonable need for gratuitous attendant care services and that the need related to Mr Hunter's alleged fall. He had been able to care for himself, albeit with some difficulty, prior to the accident. Her Honour accepted that, for at least six consecutive months, the need for care exceeded six hours per week. Her Honour therefore awarded $24,000. * Future domestic assistance: the trial judge found that the level of assistance required by Mr Hunter had currently reduced below the statutory threshold of six hours per week, and allowed $30,000 as a buffer for future paid care. The total amount of damages assessed by the trial judge was $122,250. Her Honour then reduced that amount by 20% to reflect Mr Hunter's contributory negligence, resulting in the verdict of $97,800. The Appeal 13There are three bases of complaint by the Council. First, the Council contends that the trial judge erred in concluding that the Council breached a duty owed to Mr Hunter. The Council accepts that Mr Hunter may have fallen as a result of tripping on a tree root in the footpath. However, the Council denies that it was in breach of any duty that it owed to Mr Hunter. Second, the Council contends that her Honour erred in finding that Mr Hunter suffered any injury to his right knee on 25 November 2011, assuming that he tripped on a tree root on that day, or, if he did suffer an injury, her Honour erred in not finding that it was temporary. Third, the Council contends that, even if Mr Hunter suffered injury to his knee as a consequence of breach of duty by the Council, her Honour erred in the assessment of damages. I shall deal with those matters separately. Breach of duty 14Mr Hunter lives in Mount Vernon Street, Glebe, which intersects with Catherine Street at an angle of approximately 45 degrees. Part of the area between the two streets is open space, which is grassed and planted with trees to constitute a small park. The open space forms an approximate isosceles triangle. The photographs and plans in evidence suggest that the sides of the triangle are around 50 metres, although the apex is rounded and the base of the triangle is not quite straight, but has a slight bend in the middle. A bitumen path crosses the open space from Mount Vernon Street to Catherine Street. The photographs and plans in evidence suggest that the path is approximately ten metres from the base of the triangle. 15At the point where the Catherine Street side of the triangle meets the base of the triangle, there is a substantial Moreton Bay fig tree that was planted probably more than 100 years ago. As at 25 November 2011, the roots of the fig tree had caused disruption of the bitumen surface of the footpath of Catherine Street. The extent of the disruption is not entirely clear from the evidence. Photographic evidence indicates that an area close to the kerb was relatively free from disruption, although the extent of that area is also unclear. 16On the day in question, Mr Hunter was intending to visit the premises of Officeworks located on the corner of Ross Street and Parramatta Road, a short distance from the footpath in question. Mr Hunter had visited those premises previously. He said that his usual route to the Officeworks premises was to walk through the small park, cross Catherine Street to Seamer Street, which joins Catherine Street approximately halfway along the Catherine Street side of the triangle, and then walk along Seamer Street towards Parramatta Road. Mr Hunter said that, on the day in question, he walked along the bitumen path that crosses the small park but, because there were cars parked close together in Catherine Street, he decided not to cross Catherine Street to Seamer Street, but to turn right into Catherine Street from the bitumen path. 17Mr Hunter said that, as he turned right from the path into Catherine Street, towards the tree roots, he could see them ahead of him. He said it was "really rough, the roots were all up and down and there was quite a few of them". He said that, at the time, it was overcast. He said that he could see the tree roots ahead of him but did not take steps to avoid the roots because "there was just a whole lot, there was [sic] lots of them that ... had ripped up the footpath". He said that he had to manoeuvre over the top of them and he "just hit one of them and went over". 18In the course of his evidence in chief in the witness box, Mr Hunter indicated with his hands the height of the root on which he had tripped. It was common ground that the height he indicated was roughly ten centimetres. A photograph taken by Mr Hunter of the root on which he said he had tripped is not conclusive as to its height. Further, a photograph taken by an officer of the Council some months after the alleged fall, before any repairs were done to the footpath, suggests that the height of the root may have been no more than approximately 30 millimetres. 19Mr Hunter said that, after he fell, he got up, turned around and went back home. He said that he was limping and that he was experiencing pain in his right knee, his lower back and his hip. He took a pain-killing tablet when he reached home and lay on the couch and rested that afternoon. He said that, over the next few days, there was no improvement in the way he was feeling and swelling started to develop on his knee. 20In his evidence in chief, Mr Hunter said that, at that time he had a local doctor, Dr Helena Berenson, and that he went to see Dr Berenson a few days after his fall. He said that he reported the way he was feeling in relation to his right knee and that the doctor gave him medication and arranged for him to have an X-ray. Mr Hunter said that he was very sore and in pain with his knee over that Christmas period. He said in his evidence in chief that he also saw Dr Berenson in January 2012. At that point, he said that he had been under the care of another doctor, Dr Lesley Peter, before he saw Dr Berenson, but that he saw Dr Berenson in mid-January or February: "somewhere around there". He again said that Dr Berenson gave him medication and wrote a request for an X-ray on his right knee. 21As will become apparent, it is clear that Mr Hunter's evidence, about when he saw Dr Berenson about his knee and was sent for an X-ray, was entirely wrong. He did not in fact see Dr Berenson about his knee until 2 February 2012. Dr Berenson then referred him to Dr Mark Horsley, a knee surgeon. He was also referred to the rheumatology clinic at Royal Prince Alfred Hospital where he came under the care of Professor Jane Bleasel. In September 2012, Dr Horsley operated on Mr Hunter's right knee. Mr Hunter said that there had not been any improvement in his right knee since the operation. He said that his right knee gives way and that he is constantly falling over. He said that that had not been the case before the operation. 22In cross-examination, Mr Hunter said that the place where he tripped was "all up and down and broken ... all uneven". He said that, as he was walking, he tripped and "went straight over". He said that when he fell, he tried to save himself and he saw a big root and thought he was going to hit it and then he did hit it. Mr Hunter said that, when he was walking, the footpath was "all uneven ... it was like a maze" and that he was actually trying to go through without hurting himself. He said that he had "never seen that big root" and that when he did, it was too late: by that stage, he was already on the ground and his knee had hit the top of the root. 23When asked whether he had walked past the area on a number of occasions before the day in question, he said that he had always walked to Officeworks by crossing the road. He said that one can go either to the back or to the front of Officeworks. On the day in question, he did not cross Catherine Street and go down "the other street" (presumably a reference to Seamer Street) towards Parramatta Road. He asserted that, despite having lived in Glebe for eight years, 25 November 2011 was the first time that he had walked along the particular section of the footpath on Catherine Street in question. 24Mr Hunter agreed that, on a number of occasions before 25 November 2011, he had walked through the open space with the fig tree on his immediate right. He agreed that the unevenness and breaking of the bitumen that he described covers some distance immediately to his right as he came past the end of the bitumen footpath through the open space. Mr Hunter agreed that, when he had walked on the path through the open space on previous occasions, the problems that he described with the bitumen and the tree roots and the tree itself were to his immediate right. 25Mr Hunter was shown a photograph of the footpath of Catherine Street taken after part of the disrupted bitumen had been repaired. He agreed that the photograph showed a section of the bitumen path as it was on the day in question and agreed that there was nothing wrong with that section of the bitumen. He agreed that he could walk over that section as he went past the fig tree. However, he would not agree that there was plenty of room to do so. He said that where the roots were, the footpath was "all broken up". 26Mr Hunter was then shown another photograph taken before any repairs were made to the footpath. He agreed that that photograph was a fair representation of what the footpath looked like on the day of his alleged accident. He asserted that the footpath was "rougher" on the day, but agreed that the photograph "looks about right". The photograph showed that there was a section of footpath close to the kerb, and to the left of the undulating cracked part of the footpath, that did not appear to have any cracking or other tree root damage. When asked whether he could have walked through that section of the footpath on the day, his response was "it was very narrow". He said that there were vehicles parked close to the kerb and that he had no choice but to walk over the rough part of the footpath. 27In re-examination, Mr Hunter said that the footpath where the roots were located was "quite a big area" and that it was "all unstable". He said that the footpath was all cracked and that small and big roots were protruding where he was going to walk. He said that he had to be very careful because it was "just all ripped up". He said that there was "just nowhere I could go". 28Apart from his own evidence concerning his injury, Mr Hunter also relied on the evidence of Mr Tyrone Smith, a friend of his. Mr Smith gave evidence that he received a telephone call from Mr Hunter some time before Christmas 2011. He said that they had previously made arrangements to go Christmas shopping and he was surprised to receive the telephone call a few days before the pre-arranged date. He said that Mr Hunter had told him that he was in pain because he had fallen over some roots. Mr Smith said that he advised Mr Hunter to consult a doctor. He agreed in cross-examination that Mr Hunter had had problems with his back but said that he was unaware of problems in his right hip or his shoulder. Mr Smith gave evidence that Mr Hunter's knee was swollen when he accompanied him to see the doctor. He would not agree that Mr Hunter had not complained about knee problems before the end of January 2012. 29The trial judge accepted that Mr Hunter was, in general terms, aware that the footpath where he was walking was disturbed by tree roots. Her Honour accepted that he did not see the actual root on which he tripped "until the trip had commenced". Her Honour found that, as Mr Hunter turned right into the area, the lighting "was not good" and that Mr Hunter did not realise the extent of the danger until he was in the middle of it. 30The only evidence as to the lighting was that it was overcast. It was not suggested by Mr Hunter that he had difficulty in seeing the roots. His evidence was that he saw the roots but had to find his way through them. Indeed, the fact that the conditions were overcast may well have improved visibility. The photographs in evidence suggested that, when the sun was shining, a significant dappling effect was created over the area under the fig tree, which may well have made it more difficult to see tree roots. However, when the sky is overcast, that problem does not arise. 31The trial judge accepted that Mr Hunter was aware, soon after he turned right into Catherine Street from the path leading out of the small park, that he was in an area of danger. Her Honour found that Mr Hunter took that route because it was difficult for him to get through parked cars and cross Catherine Street. Her Honour accepted that it was possible that, if Mr Hunter had inspected the area more carefully, prior to turning right, he may have been able to avoid the danger. While her Honour did not find that the Council was relieved from its breach of duty of care, her Honour concluded that, in the circumstances, it was reasonable to reduce Mr Hunter's damages by 20%, for his contributory negligence. 32It is not easy to follow the reasoning of the trial judge in concluding that the Council was in breach of a duty of care. Her Honour appears to have found that the Council owed to Mr Hunter a duty to repair the bitumen of the Catherine Street footpath damaged by tree roots. Indeed, the Council did carry out such repairs at some time after May 2012. However, the photographic evidence indicates that, even prior to the repairs, there were substantial parts of the footpath that were easily passable by a pedestrian without stepping on the part of the bitumen damaged by tree roots. 33The evidence indicates that a pedestrian taking reasonable care for himself or herself would have no difficulty at all in walking along the bitumen path that passes through the small park and then turning right onto the bitumen of the Catherine Street footpath. If Mr Hunter tripped and fell on tree roots on 25 November 2011, it can only be because he was failing to take reasonable care for his own safety. There was no breach of duty on the part of the Council in failing to repair the bitumen path damaged by the tree roots in circumstances where it was clearly open for a pedestrian to pass by without treading on the roots and disrupted bitumen. The trial judge erred in concluding that the Council was in breach of any duty owed to Mr Hunter as pleaded by him. The cause of the knee injury 34Reference has already been made to Mr Hunter's evidence concerning his consultation of Dr Berenson several days after his alleged fall. The contemporaneous medical notes indicate that, in fact, Mr Hunter did consult Dr Berenson several days after a fall. However, the fall was not in Catherine Street, Glebe, and it occurred at the end of January 2012. In order to explain the evidence, it is necessary to say something about Mr Hunter's health as at 25 November 2011. 35Mr Hunter was born in 1961 in New Zealand, where he trained as a nurse. He migrated to Australia in 1989 and settled in Adelaide, where he worked as a nurse. In 1994, he suffered an injury at work, which ultimately caused him to stop working. He was treated by a spinal surgeon who performed operations in 1995, 1996, 1997 and 1998. 36In 1995, Mr Hunter was injured in a motor vehicle accident, which aggravated his lower back. In 2001, he was again involved in a motor vehicle accident, when his lower back and shoulder were injured. In 2002, he underwent surgery on his right shoulder. In 2005, he was involved in a further motor vehicle accident, as a result of which he developed a whiplash injury. 37In 2006, Mr Hunter fell down stairs and injured his left knee, requiring surgery. In September 2009, Mr Hunter fell into a brick wall but suffered no precise injuries. In March 2011, he walked into a tree and suffered minor injuries. In April 2011, Mr Hunter aggravated his lower back. 38As at November 2011, Mr Hunter's general practitioner was Dr Lesley Peter of the Broadway General Practice. The medical notes from the Broadway General Practice show that Mr Hunter regularly consulted the practice. On 1 February 2011, he consulted the practice in relation to an "itchy mole", which was diagnosed as an inflammation in the base of a hair follicle. On 18 March 2011, he consulted the practice in relation to an injury suffered when he walked into a tree. The notes also record a small inflamed area of the upper back. Antibiotics were prescribed. On 6 April 2011, Mr Hunter consulted Dr Peter in relation to an exacerbation of his back pain. The notes record that he said that his leg gave way on steps and he fell onto his back. They record severe lower back pain and that medication was prescribed. On 25 May 2011, Mr Hunter again consulted Dr Peter for pain management. The notes record that he was still taking medication since slipping on stairs and stirring up his back. 39On 14 October 2011, Mr Hunter saw Dr Peter again, this time for pain in his right hip. He complained of increasing pain in his right hip and groin since visiting his parents in New Zealand. He was sent for an X-ray of his hip. He saw Dr Peter again on 21 October 2011. The notes record that the X-ray was "basically okay" and indicate that Mr Hunter thought that the right hip was settling. Mr Hunter's medication was varied. He saw Dr Peter again on 4 November 2011 for pain in his right hip, when he said that the pain had settled a bit but was still painful at night. He was given a referral to the rheumatology clinic at Royal Prince Alfred Hospital. 40Significantly, Mr Hunter consulted Dr Peter again on 30 November 2011. On that occasion, he again complained about hip pain, which he said was flaring again. At that stage, he had an appointment with Royal Prince Alfred Hospital scheduled for mid-January 2012. An anti-inflammatory was prescribed. Mr Hunter saw Dr Peter again on 13 December 2011 to obtain a prescription for further medication. The notes record that he was "well" and that there were "no problems". On 13 January 2012, Mr Hunter saw Dr Graham Chin, another doctor at the Broadway General Practice, and said that he was proposing to travel to Africa for five weeks later that year. He was given advice concerning malaria prophylaxis and given an alternative medication. 41There is no record in the notes of the Broadway General Practice of Mr Hunter's ever having complained about pain in his right knee. Having regard to the number of occasions on which he had consulted the Broadway General Practice during 2011, it is inconceivable that, if Mr Hunter had suffered the injury to his knee on 25 November 2011 about which he now complains, he would not have mentioned that to Dr Peter when he saw her on 30 November 2011 or 13 December 2011, or to Dr Chin when he saw him on 13 January 2012, particularly when he claimed in these proceedings that he was very sore and in pain over that Christmas period. Mr Hunter was not averse to consulting the practice about an itchy mole and made regular visits to the practice when he was suffering pain in his hip and back. 42Indeed, Mr Hunter did not suggest that he consulted anyone at the Broadway General Practice about his right knee. Rather, as indicated above, he said that, several days after he fell, he consulted Dr Berenson, who practises at the Glebe Medical Centre. 43It appears that Mr Hunter decided to change general practitioners during January 2012. The patient health summary from the Glebe Medical Centre records a consultation with Dr Berenson on 27 January 2012. The notes record that Mr Hunter wanted to change his practice from the Broadway Medical Centre. The notes then record that he had an appointment with the rheumatology OPD for 16 February 2012 and that he was going to Africa in July and would require medications to take with him. The reason for the consultation was insomnia and the notes record that that may be the result of adverse drug reactions. There is no mention of any complaint about a sore knee. 44The next entry in the patient health summary of the Glebe Medical Centre is a further consultation with Dr Berenson on 2 February 2012. The entry is highly significant. The reason for the visit was stated to be "knee injury". The entry is as follows: Injury occurred 5 days ago when climbing over back fence and landed heavily Could have possible hairline fracture on medical aspect of tibia Pain on walking, very tender over one particular area Plan strapping of knee The entry recorded that an X-ray of the right knee and an ultrasound of the medial aspect of the right knee were proposed. Finally, the entry recorded that a "Tubigrip" was applied to Mr Hunter's right knee. 45The patient health summary of the Glebe Medical Centre records that Dr Berenson referred Mr Hunter to Alfred Medical Imaging for an X-ray and an ultrasound of his right knee. Dr Berenson subsequently received reports from Alfred Medical Imaging dated 2 February 2012 and 9 February 2012 of the X-ray and ultrasound examinations respectively. 46On 26 July 2013, Mr Hunter's solicitors wrote to Dr Berenson saying that they were acting on his behalf in a claim for personal injuries arising from "a Public Liability claim, which occurred on 25/11/11". The letter, somewhat incomprehensibly, then said: We advise we have been instructed by our client that they have been receiving treatment from you in relation to their injuries and disabilities suffered as a result of the aforementioned motor vehicle accident. [Emphasis added] The letter then requested Dr Berenson to prepare a report responding to some 21 questions. The letter then said: As you would be aware under the current requirements it is necessary to comment as to whether the Claimant's injuries have stabilised and whether they would exceed the 10% whole body impairment threshold which is required based upon the AMA Fourth Edition Guidelines or in workers compensation matters whether they would exceed the 15% whole body impairment threshold which is required based upon the AMA Fifth Edition Guidelines. 47In her report of 16 August 2013, in response to the letter from Mr Hunter's solicitors of 26 July 2013, Dr Berenson said that Mr Hunter first consulted her on 2 February 2012 about the injury "on his right knee about five weeks after it occurred on 25/11/11". She recorded that Mr Hunter related that the knee injury occurred in a park near his home when he tripped over some exposed tree trunk roots and landed heavily on his right knee, jarring his back as well. 48Clearly, those references in the report were not based on the history related by Mr Hunter to Dr Berenson on 2 February 2012 but on the history given by Mr Hunter's solicitors in their letter and the history taken by Dr Berenson in July or August 2013 for the purpose of responding to the letter from the solicitors. That is apparent from the evidence given before the trial judge. 49The Council called Dr Berenson to give evidence when Mr Hunter declined to do so. It appears that both counsel were permitted to ask leading questions of Dr Berenson. Dr Berenson said that it was her usual practice to record consultations on the computer and to make an entry in respect of any relevant information provided by a patient during a consultation. Such a record is made either during the consultation or straight after the patient leaves. Dr Berenson confirmed that she had been provided with the notes from the Broadway Medical Centre and had found nothing there referring to an injury to the right knee in or about November 2011. As at 27 January 2012, however, those notes had not yet been transferred to the Glebe Medical Centre. 50Dr Berenson was taken to her notes of the consultation of 27 January 2012. She said that, if Mr Hunter had mentioned to her that he had injured his right knee falling down on the footpath and was having some pain and swelling, that is something that she would have recorded. However, she did not. Thus, the inevitable inference is that Mr Hunter made no mention of a sore knee on that occasion. 51Dr Berenson was then taken to her record of the consultation of 2 February 2012 and the history recorded of an injury having occurred five days previously. She said, "Well I would have been quoting like I heard it" and that she would have got that history from Mr Hunter. Dr Berenson agreed that, when she saw Mr Hunter on 2 February 2012, there was swelling of his right knee and that she arranged for it to be strapped. She said that she organised for the nurse to put on strapping in order to support the knee because it was too painful to walk. 52In examination by counsel for Mr Hunter, it was suggested to Dr Berenson that Mr Hunter told her that he had fallen at the fence. Dr Berenson agreed that that was possible. Dr Berenson agreed that falling at the back fence would be consistent with later histories taken from Mr Hunter of repeated falling. 53When asked about her report of 16 August 2013, Dr Berenson confirmed that she had not been able to find any information in the notes from the Broadway Medical Centre or from her own notes to help her answer the questions that Mr Hunter's solicitors had asked her. She said that she needed to speak with Mr Hunter because she did not know where to begin to answer the questions. She was surprised that she could not find any information in the records about an injury on 25 November 2011. She said that the first time that Mr Hunter mentioned an injury on 25 November 2011 was when he came in to assist her to respond to the letter from his solicitors. 54Mr Smith, on the other hand, gave evidence that was consistent with the allegations of Mr Hunter. Mr Smith said in evidence that, since the alleged fall, he had provided assistance to Mr Hunter and around the time of his surgery had helped him with personal care. As I have said, Mr Smith agreed in cross-examination that Mr Hunter had problems with his back but said that he was unaware of problems in his right hip or his shoulder. Mr Smith would not agree that Mr Hunter had not complained about knee problems before the end of January 2012. The trial judge recorded that Mr Smith proved to be "a poor historian when it came to times and dates". 55The trial judge observed that the Council had attacked the credit of both Mr Hunter and Mr Smith. Her Honour accepted that both of them had difficulty with accurately judging the amount of time that passed between the accident and the various attendances at doctors and the taking of photographs. However, her Honour did not consider that that "reflects adversely on their credit". Her Honour placed considerable significance on the fact that Mr Smith was able to place the telephone call that he asserted that Mr Hunter made to him informing him of the accident because it occurred a few days before a planned Christmas shopping trip. 56The trial judge did not consider that the failure of any doctor to record, prior to February 2012, that Mr Hunter was having problems with his knee significantly impinged upon his credit. Her Honour had regard to the fact that Mr Hunter had a list of disabilities and was taking medication for them at the time of his alleged fall. She accepted that his initial concern was that the fall had aggravated his back complaint and that he believed that the injury to his knee was likely to be transient. Her Honour then observed that treating doctors are understandably more concerned with treating patients than with taking histories of how accidents occurred. That, however, is quite inconsistent with the evidence of Dr Berenson, and that proposition was not put to her before the trial judge. 57It is quite clear that Mr Smith's evidence about Mr Hunter's knee being swollen must relate to the condition of Mr Hunter's knee after the incident that occurred in late January 2012. The whole of the objective contemporaneous evidence is entirely inconsistent with Mr Hunter having suffered trauma to his knee that gave rise to the condition observed by Dr Berenson on 2 February 2012. There is no hint of a complaint to Dr Berenson at the consultation in January 2012. There had been no hint of a complaint to Dr Peter at the consultations in November and December 2011 and January 2012, after the alleged fall on 25 November 2011. 58It is clear that any significant injury that Mr Hunter suffered to his right knee must have occurred in late January 2012. As indicated above, Mr Hunter said in his evidence in chief that he consulted Dr Berenson a few days after he injured his knee. Clearly, that evidence must have related to an incident in late January 2012, whatever the incident may have been. It is clear beyond any real doubt that Mr Hunter made no attempt to seek medical assistance in relation to what must have been a minor fall on 25 November 2011. 59In all of the circumstances, the trial judge clearly erred in concluding that, assuming he fell on 25 November 2011, Mr Hunter suffered any injury on that occasion. Whether or not the injury to his knee, in January 2012, was suffered when he jumped a fence or gate or whether he simply fell heavily at a fence or gate is not of any great moment. It is clear that the injury for which Mr Hunter was treated from February 2012 onwards did not occur until late January 2012. There was no causal connection whatsoever between any fall that Mr Hunter may have suffered on 25 November 2011 and the condition of his right knee after January 2012. It follows that the trial judge erred in concluding that there was. Damages 60The Council's notice of appeal asserts error on the part of the trial judge in the assessment of damages. The grounds of appeal include that her Honour erred in finding that Mr Hunter satisfied the 15% minimum threshold for non-economic loss, in finding that his loss was 26% of a most extreme case pursuant to s 16 of the Civil Liability Act 2002 (NSW), in finding that there was any need for past domestic assistance and in finding that he had a need for domestic assistance on a paid commercial basis in the future. It follows from the minor nature of any fall in November 2011 that her Honour erred in the findings made that Mr Hunter satisfied the 15% minimum threshold for economic loss and that his loss was 26% of a most extreme case. Having regard to the conclusion reached concerning liability, it is unnecessary to deal with those grounds in detail or to deal with the remaining grounds as to the need for domestic assistance. However, the failure to do so should not be understood as an endorsement of the conclusions of the trial judge in relation to those issues. Conclusion 61It follows that the orders of the Court should be as follows: 1.Leave be granted to applicant to appeal from the orders of the District Court made on 10 March 2014. 2.No later than 7 days after the date of these orders, the applicant file and serve a notice of appeal in the form contained in the application book. 3.The appeal be allowed. 4.The orders of the District Court made on 10 March 2014 be set aside and, in lieu thereof, it be ordered that there be a verdict for the defendant, the proceedings be dismissed and the plaintiff pay the defendant's costs. 5.The respondent pay the applicant's costs of the application for leave and of the appeal. 6.The respondent, if otherwise qualified, be granted a certificate under the Suitors' Fund Act 1951 (NSW). 62SIMPSON J: I agree with Emmett JA. ********** 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: 19 December 2014