Supreme Court New South Wales Medium Neutral Citation: Holland v City of Botany Bay Council [2017] NSWSC 1120 Hearing dates: 20 March 2017, 21 March 2017, 23 March 2017, 25 March 2017, 6 April 2017, further written submissions on 24 April 2017, 27 April 2017, 28 April 2017, 1 May 2017 Date of orders: 24 August 2017 Decision date: 24 August 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Judgment for the Council. Accordingly, Mrs Holland's claim be dismissed. If the parties do not approach to be heard on costs within 14 days, the usual costs order will be made in favour of the Council. Catchwords: TORTS – negligence – pedestrian tripped and fell while crossing an intersection – proper construction of the Roads Act 1993 (NSW) – proper construction of s 45 of the Civil Liability Act 2002 (NSW) – nature of Council's duty of care – whether there was a trip hazard on the road which caused the plaintiff to fall – whether the Council had a defence under s 45 – whether the fall caused the plaintiff's back injury – whether there was any contributory negligence – no duty of care breached – damages – costs EVIDENCE – witnesses – credibility and reliability of witnesses – Jones v Dunkel inferences Legislation Cited: Civil Liability Act 2002 (NSW) Roads Act 1993 (NSW) Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) NSWLR 393; [2014] NSWCA at 139 Botany Bay City Council v Latham (2013) 197 LGERA 211; [2013] NSWCA 363 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Burwood Council v Byrnes [2002] NSWCA 343 Cavric v Willoughby City Council (2015) 89 NSWLR 461; [2015] NSWCA 182 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Glad Retail Cleaning v Alvarenga (2013) 86 NSWLR 482; [2013] NSWCA 482 Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Mason v Demasi [2009] NSWCA 227 Nightingale v Blacktown City Council [2015] NSWCA 423 North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Tran v Nominal Defendant [2011] NSWCA 220 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Wheat v E Lacon & Co Ltd [1966] AC 552 at 578-9; [1966] 1 All ER 582 Wyong Shire Council v Vairy (2004) Aust Torts Reports 81-754; [2004] NSWCA 247 Category: Principal judgment Parties: Christina Holland (Plaintiff) City of Botany Bay (Defendant) Representation: Counsel: Mr M Daley (Plaintiff) Mr D Kelly (Defendant) Solicitors: Brydens (Plaintiff) McCulloch and Buggy (Defendant) File Number(s): 2014/174757 Publication restriction: None Judgment 1. In June 2011 Mrs Holland tripped and fell while crossing at the intersection of Gordon Street and Gardeners Road in Rosebery on a bright and sunny day, injuring her left elbow and, she claims, her back. She seeks to recover damages from the City of Botany Bay Council, the fall and the injuries which she suffered being, on her case, the result of its negligence in failing to adequately maintain the road where she fell. 2. While there is no issue that Mrs Holland fell, or that she has suffered serious injury to her back, the Council denies that it was the fall which caused that injury. It also denies any negligence on its part. 3. Mrs Holland's case was finally advanced by a further amended statement of claim filed during the hearing in 2017. That development was followed by an agreement reached by the parties, following investigations pursued only after the hearing, that despite the street signage, which suggested that where Mrs Holland fell on the intersection was part of Gordon Street, it was in fact part of Gardeners Road. 4. That agreement gave rise to questions as to the proper construction of the Roads Act 1993 (NSW) and whether s 45 of the Civil Liability Act 2002 (NSW) applied to Mrs Holland's claim, it making special provision for civil liability on the part of a roads authorities, for harm arising from a failure to carry out road work. 5. In the result, what is in issue includes: 1. The proper construction of the Roads Act and s 45 of the Civil Liability Act; 2. The nature of the Council's duty of care to Mrs Holland; 3. Whether there was a trip hazard on the road, which caused Mrs Holland to fall as she did; 4. Whether the Council had a defence under s 45 of the Civil Liability Act; 5. Whether the fall caused injury to Mrs Holland's back for which she is entitled to recover damages; and 6. Whether there was any contributory negligence on Mrs Holland's part. 1. There were also questions about the credibility and reliability of Mrs Holland's evidence and that of certain other witnesses. The proper construction of the Roads Act 1. When the hearing commenced, Mrs Holland's pleaded case was that she fell on Gordon Street, for which the Council was the roads authority under the Roads Act. Whether the state of the road in 2011 was such that the Council had failed to keep it in a necessary state of repair, was in issue. For its part the Council relied on s 45 of the Civil Liability Act to defend Mrs Holland's claim. 2. It was only during final submissions that the question of where Gordon Street finished, with respect to Gardeners Road, was addressed. At that point, despite her pleaded case, Mrs Holland did not accept that the evidence had established that she had fallen on Gordon Street. She then sought, and was granted, leave to amend her statement of claim, the Council not opposing that application. 3. That amendment was made because whether it was the Council or the Roads and Maritime Services which was the "roads authority" under the Roads Act for the place where Mrs Holland fell, was relevant to Mrs Holland's case, that s 45 of the Civil Liability Act could not defeat her claim. 4. The claim which Mrs Holland had earlier been pursued at the hearing, under her April 2015 amended statement of claim, was that: "2 At all material times the Defendant was the occupier of and had the care and control and management of certain roadway comprising Gordon Street Rosebery in the State of New South Wales. 3 Prior to 27 June 2011 the Defendant by its servants and agents undertook various works on the said roadway and adjacent footpaths in the vicinity of the intersection of Gordon Street with Gardeners Road Rosebery. 4 At all material times the Defendant was aware or was ought to have been aware that the works undertaken created an irregular and dangerous walking surface for pedestrians using this area to pass from the footpath on the western side of Gordon Street to the eastern side and vice versa." 1. The interrogatories which Mrs Holland had earlier sought and the answers which the Council had provided in November 2015, included: "8 Interrogatory: In respect of your non admission of paragraph 2 of the Statement of Claim: a. Was the defendant the roads authority with care, control and responsibility for Gordon Street, Rosebery NSW at or near the intersection with Gardeners Road, Rosebery NSW? b. If not, who did? c. Was the defendant the roads authority with care, control and responsibility for Gardeners Road, Rosebery NSW, at or near the intersection with Gordon Street, Rosebery NSW? d. if not, who did. Answer: 8a. Yes. 8b. N/a. 8c. No. The Defendant was not the roads authority for Gardeners Road, Rosebery NSW at or near the intersection with Gordon Street, Rosebery, however the Defendant did have practical care, control and responsibility for Gardeners Road, Rosebery between Gordon Street and the kerb alignment in Gardeners Road. 8D. N/a." 1. In submissions it was explained for Mrs Holland that those interrogatories had been pursued, in order to exclude the necessity of joining any other party as a defendant to these proceedings. 2. The claim finally pressed by Mrs Holland's further amended statement of claim was that: "2 At all material times the Defendant was the occupier of and had the care and control and management of that section of roadway and adjacent footpaths in the vicinity of the intersection of Gordon Street and Gardeners Road Rosebery in the State of NSW north of the building alignment and south of the kerb and guttering on Gardeners Road ('the roadway") 3 Prior to 27 June 2011 the Defendant by its servants and agents undertook various works on the said roadway and adjacent footpaths, in the vicinity of the intersection-of Gordon Street with Gardeners Road Roseberry 4 At all material times the Defendant was aware or was ought to have been aware that the works undertaken created an irregular and dangerous walking surface for pedestrians using this area to pass from the footpath on the western side of Gordon Street to the eastern side and vice versa." 1. Whether the Council was the "roads authority" for the part of the intersection where Mrs Holland fell, depended on whether Mrs Holland fell on Gordon St, or on Gardeners Road. The parties' further investigations resulted in an agreement that Mrs Holland had fallen on Gardeners Road. The parties reached no common ground, however, as to whether the defence provided by s 45 of the Civil Liability Act was, in those circumstances, available to the Council. 2. Further written submissions were thus advanced as to the operation of the Roads Act and s 45 of the Civil Liability Act. 3. There was no issue between the parties that the Council was bound by the answer it had given to Mrs Holland's interrogatories, that it had control of the part of Gardeners Road where Mrs Holland fell. Photographs in evidence established that it had been repaired before the fall. There was no evidence as to when those repairs were undertaken, or by whom. The proper inference on the evidence which I will discuss, however, is that they were undertaken by the Council. 4. The parties also agreed that Gardeners Road is both a "main road" and a "classified road" under the Roads Act; that the Council is a "roads authority" under that Act; that it was not the roads authority for Gardeners Road; and that the roads authority for that road was the RMS. 5. In final written submissions it was contended for Mrs Holland that despite the concession that the Council had the practical care, control and responsibility for the place where Mrs Holland fell, because it was not the roads authority for Gardeners Road under the Roads Act, it could not rely on s 45 of the Civil Liability Act. 6. The obvious corollary of that submission, the Council contended in its written submissions, was that it not being the roads authority for Gardeners Road, whatever might have been the "practical position" described in the answer it had given to the interrogatories, it had no function in relation to decisions about "what road work is to be carried out" on Gardeners Road. Under s 71 of the Roads Act, that being the exclusive function of the RMS. 7. To meet that difficulty, two alternative submissions were advanced for Mrs Holland. First, that as a matter of statutory construction, s 71 of the Roads Act, being a general provision, had to be read subject to s 61, that being the specific provision, dealing with road works. Secondly, the Council not having pleaded the absence of a duty to Mrs Holland, ought not now to be permitted to advance such a case: Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358. 8. Further, it was submitted, the pleaded issue of the occupation of Gardeners Road was one of fact, as was the question of whether the Council had actual control over the road where Mrs Holland fell. All that was required to be established was that it had some degree of control: Wheat v E Lacon & Co Ltd [1966] AC 552 at 578-9; [1966] 1 All ER 582. 9. On the Council's case, these issues had arisen only because of the case Mrs Holland had finally advanced in relation to the availability of the s 45 defence. Further, that if the construction of the Roads Act for which Mrs Holland contended was correct, the Council could have had no right, let alone any duty to Mrs Holland, to perform repair work on Gardeners Road in the area where she fell. 10. The questions of statutory construction lying between the parties must be must be resolved in the way discussed in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] - [71]. That is, consistently with the language and purpose of all of the provisions of the Roads Act, with its meaning being determined by reference to its language, viewed as a whole. That process must begin with an examination of the context of the provisions in question and sense must be made of the whole of those provisions, so that "no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent": Project Blue Sky at [71]. 11. The objects of the Roads Act are specified in s 3 to be: "(a) to set out the rights of members of the public to pass along public roads, and (b) to set out the rights of persons who own land adjoining a public road to have access to the public road, and (c) to establish the procedures for the opening and closing of a public road, and (d) to provide for the classification of roads, and (e) to provide for the declaration of RMS and other public authorities as roads authorities for both classified and unclassified roads, and (f) to confer certain functions (in particular, the function of carrying out road work) on RMS and on other roads authorities, and (g) to provide for the distribution of the functions conferred by this Act between RMS and other roads authorities, and (h) to regulate the carrying out of various activities on public roads." 1. The parties' agreements about Gardeners Road reflect that a "classified road" is defined in the Dictionary to the Roads Act to include a "main road". A "main road" is there defined to mean "a road that is declared to be a main road by an order in force under section 46". Section 46 empowers the Minister to declare any "public road" to be a main road. "Public Road" is defined in the Dictionary to mean: "(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." 1. Section 145(3) provides that "[a]ll public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority". In the case of Gardeners Road, that authority is the RMS. 2. While the Council is also a roads authority, for Gordon Street for example, it is common ground that it is not the roads authority for Gardeners Road. "Roads authority" is defined in the Dictionary to the Act 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." 3. Section 7(4) of the Roads Act provides that the council of a local government area is the "roads authority" for all "public roads" within the area, other than: "(a) any freeway or Crown road, and (b) any public road for which some other public authority is declared by the regulations to be the roads authority." 1. It follows that under s 7(4), but for the relevant declaration, the Council would also have been the roads authority for Gardeners Road, rather than the RMS. 2. Section 61 of the Roads Act provides: "61 Road works on certain classified roads (1) It is exclusively the function of RMS to make decisions as to what road work is to be carried out: (a) on any freeway, highway or metropolitan main road, or (b) on any other classified road in respect of which the carrying out of that kind of road work is, by virtue of an agreement or direction under this Division, the responsibility of RMS. (2) It is exclusively the function of RMS to construct and maintain State works." 1. "Road work" is defined in the Dictionary to include: "any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transit way station or service centre or rail infrastructure) that is constructed, installed or relocated on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility" and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work". 1. Accordingly, under s 61 decisions as to what road works are to be carried out on Gardeners Road, including at the intersection where Mrs Holland fell, are exclusively the function of the RMS, it being a metropolitan main road, defined in the Dictionary to mean "a main road within the Sydney metropolitan area". 2. "State works", referred to in s 61, is defined in the Dictionary to mean "a road or work that is declared to be a State work by an order in force under section 53". That section provides: "53 State works The Minister may, by order published in the Gazette, declare to be a State work any public road or any other public work (including a bridge, tunnel and road-ferry) which, because of its nature, size, location or importance, the Minister considers should be a responsibility of the State." 1. There is no evidence of any such order having been made in respect of Gardeners Road. 2. Section 62 must also be considered. It provides that: "62 Roads agreements between RMS and roads authorities (1) RMS and a roads authority may enter into an agreement under which some or all of the functions of the roads authority with respect to a classified road become, to the extent provided by the agreement, the responsibility of RMS. (2) While an agreement under this section has effect, the functions of the roads authority with respect to the road are, to the extent provided by the agreement, to be exercised by RMS. (3) This section does not limit the power of RMS to exercise any function conferred on it by or under any other provision of this Act with respect to a classified road." 1. There is no counterpart provision in the Roads Act providing for agreements between the RMS and other roads authorities such as the Council, by which the exclusive function vested in the RMS, to make decisions as to "what road work is to be carried out on metropolitan main roads", can become the other roads authority's responsibility. Nor is there express provision made for the RMS to engage another roads authority such as the Council, to undertake road works on main roads such as Gardeners Road, for which it is the roads authority. 2. Further, s 220 permits the RMS to require the appropriate roads authority to pay to it the whole or part of the costs it incurs in constructing drainage, kerbs and gutters, or constructing, widening and paving footways, in connection with a classified road in the Sydney metropolitan area. There is also no counterpart provision for other roads authorities to require the RMS to make payments to them, for costs which they have incurred in relation to any constructions on roads for which the RMS is the roads authority. 3. Nevertheless, the Act does contemplate that the RMS may enter into such arrangements, as the Council accepted in the answer it provided to Mrs Holland's interrogatories. 4. Section 253 provides, for example, that: "253 Roads authority may act through employees, agents and contractors A roads authority may exercise a function under this Act by its employees (including Crown employees), by its agents or by independent contractors." 1. That provision permits the RMS to engage the Council to provide road repairs on Gardeners Road as its agent. 2. Section 223(1) also permits a roads authority to charge and recover fees for any service it provides and s 71 provides that: "71 Powers of roads authority with respect to road work A roads authority may carry out road work on any public road for which it is the roads authority and on any other land under its control." 1. It follows that the Roads Act expressly contemplates that a roads authority such as the Council, may carry out road work on land other than the public roads for which it is the roads authority, which comes under its control. Such control can be obtained by arrangement with the RMS, which is not only the roads authority in respect of Gardeners Road, but also the entity in which the fee simple in that land is vested. 2. Such ownership itself permits the RMS to enter into an arrangement of the kind which, it must be inferred, exists between it and the Council, in relation to the maintenance and repair of Gardeners Road. 3. There is no logical reason for construing either s61 or s 71 as precluding the Council and the RMS from entering into an arrangement of the kind which would give the Council the control it accepted it had, in the answer provided to Mrs Holland's interrogatories. 4. To the contrary, there is good reason for construing those and the other provisions I have referred to, as permitting the entry of such arrangements. There are obvious resourcing and safety considerations which would make such arrangements desirable, consistently with the statutory objects: Roads Act, s 3. 5. As what transpired during this hearing demonstrated, as a practical matter it is difficult to determine where at this intersection Gardeners Road ends and Gordon Street begins. Empowering the Council to control the entire intersection, thus makes obvious practical sense for both the Council and the RMS. This is a relevant consideration, because where there are two competing constructions available, consideration may be given to that which produces the fairer and more convenient operation, in conformity with the legislative intention: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 320-1. 6. That the statutory scheme contemplates arrangements of the kind which the RMS and the Council have made, is also supported by the provision made in s 223. Thereby, in the event that any part of a main road comes within the control of a Local Council under an arrangement with the RMS, the Council is empowered to charge the RMS for the provision of the services involved in the repair and maintenance of the main road. 7. As was submitted for Mrs Holland, no evidence has been adduced as to the terms of any arrangement made between the RMS and the Council, in relation to the maintenance of Gardeners Road. They were not sought in the interrogatories she administered. That some arrangement does exist must, however, be inferred from the answers which the Council provided to what Mrs Holland did ask in her interrogatories, namely, that it had the "practical care, control and responsibility" for the part of Gardeners Road where Mrs Holland fell. Mrs Holland did not challenge what the Council there answered. To the contrary, she tendered those answers in her case and did not seek to challenge them by any evidence, including by way of cross-examination of Council officers. 8. That the Council has accepted that it is the proper defendant and has not sought to join the RMS, also supports the inference that an arrangement exists under which that part of Gardeners Road on which Mrs Holland fell, came under its control. Without that admission, the Council could not be the proper defendant in these proceedings, it not being the roads authority for Gardeners Road. The Council is entitled to rely on s 45 of the Civil Liability Act 1. I am also satisfied that because the Council had control of Gardeners Road where Mrs Holland fell, it is entitled to rely on s 45 of the Civil Liability Act. That section provides: "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." 1. "Road work" is defined in the Dictionary to the Roads Act, in terms quoted at [31] above. The negligence with which Mrs Holland's claim is concerned is the Council's failure to repair Gardeners Road where she fell, it having control of that part of the road and, as a result, owing her a duty of care. That is a claim in respect of a failure to undertake "road work", as defined in the Roads Act. 2. Section 45 of the Civil Liability Act is concerned with the civil liability of road authorities for harm which it is claimed resulted from their alleged failures to carry out or consider carrying out such road work. The section is not concerned with where it is claimed that the roads authority ought to have undertaken such road work. That reflects that s 71 of the Roads Act empowers a roads authority to carry out road work not only on public roads for which it is the relevant roads authority, but also on any other land which comes under its control. 3. Under the Roads Act, it is the RMS which is the relevant roads authority in respect of Gardeners Road, in whom the fee simple in the land is vested. Mrs Holland's claims against the Council thus depend on that part of Gardeners Road where she fell, having come under its control. If the Council did not have such control, Mrs Holland could have no claim against it in respect of her fall, because it would owe her no duty of care as to the maintenance and repair of that road. 4. It is the Council having such control which gives rise to the duty of care on which Mrs Holland's case depends. It being a roads authority under the Roads Act against whom Mrs Holland pursues her claim in negligence in respect of its alleged failure to undertake road repair, is what entitles the Council to rely on s 45 of the Civil Liability Act. 5. In the result, it cannot be accepted that s 45 of the Civil Liability Act does not arise to be considered on Mrs Holland's application, because under the Roads Act, the Council is not the roads authority for Gardeners Road. Her claim that the harm she suffered when she fell, was the result of the Council's failure to undertake road work on a part of Gardeners Road which was under its control, is a claim to which s 45 is directed. 6. That conclusion, it must be noted, does appear to sit uncomfortably with Basten JA's observation in Cavric v Willoughby City Council (2015) 89 NSWLR 461; [2015] NSWCA 182 at [6] that "for the Council to obtain the benefit of the protective provision in s 45 of the Civil Liability Act, it had to be a roads authority with respect to the area in question and it enjoyed that status only if the place of the accident was part of a public road as defined in the Roads Act". 7. In that case, however, what arose for determination was whether a car park constituted a public road. That is quite a different question to that which arose for consideration in this case. The provisions of the Roads Act which have here arisen for construction, to which no reference was made in Cavric, thus did not there have to be considered, nor did their interaction with s 45 of the Civil Liability Act. In the result, the conclusions reached in Cavric are not on point and do not preclude the conclusions which I have reached, in respect of what lay in issue between the parties in this case, in relation to the operation of s 45. 8. That being so, it follows that Mrs Holland's case must fail, unless the evidence establishes that the Council "had actual knowledge of the particular risk the materialisation of which resulted in the harm", at the time that Mrs Holland fell. As I will explain below, this was not established. Did the Council owe Mrs Holland a duty of care? 1. Sections 5B and 5C of the Civil Liability Act are relevant to the question of the Council's duty of care and its breach: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [13]. They provide: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 1. The risk of harm in question is the risk of a pedestrian tripping and falling on the uneven surface of Gardeners Road and thereby suffering injury, as discussed in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [24] and [123]. 2. It was not Mrs Holland's case that there was any statutory duty imposed on the Council to implement a particular system of repair of the roads for which it had statutory responsibility, or which came under its control. Nor was it submitted that it had a statutory duty to take particular steps to maintain those roads, in a particular state of repair. Rather, Mrs Holland's case was that the Council not being the relevant roads authority for Gardeners Road, its duty to pedestrians was akin to that of an occupier, as discussed in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7. 3. For its part the Council accepted that the result of its control of Gardeners Road at the intersection where Mrs Holland fell, was that it had a duty of care to her and other pedestrians who crossed that road at the intersection, in the actual exercise of its power to maintain the road: Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [150] and [284]. 4. That must be accepted. There is no distinction between the nature of the duty which the Council owes pedestrians who cross the intersection between Gordon Street and Gardeners Road, arising from whether the part of the intersection being crossed is physically Gordon Street, for which the Council is the roads authority under the Roads Act, rather than Gardeners Road, of which the Council has come to have control and responsibility, even though it is not the relevant roads authority under that statutory scheme. 5. In Brodie the nature of the duty was explained at [163]: "[163] The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence." 1. As further explained in Burwood Council v Byrnes [2002] NSWCA 343 at [33]: "[33] A Council's duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate "obvious hazards" which "could possibly be an occasion of harm" [para 29 above]. The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence." 1. Also to be considered is what was discussed in Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 at [37]: "[37] The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration." Credibility 1. It is convenient at this stage to deal with the credibility and reliability of witnesses, particularly Mrs Holland. 2. In cross-examination Mrs Holland denied that she was exaggerating the extent of her problems, for the purpose of her case, even though evidence which she gave clearly departed in various ways from the objective evidence. 3. It was finally submitted for Mrs Holland that she should be accepted as a witness of truth, even though at times she was confused and gave answers which did not reflect what she was being asked. Further, that in reaching a conclusion about this issue, account had to be taken of the evidence concerning her very difficult childhood, a forced abusive marriage and her extensive health problems. 4. There is no issue that Mrs Holland had suffered serious back pain in 2009 which resulted in surgery in 2010, but on her case she was well recovered, when her fall in 2011 led to a recurrence of her problems, as well as further surgery, chronic pain and the need for constant medication, including with opioids, for extended periods. She now also faces the prospect of further surgery to her back, following another exacerbation to her back condition in 2014. 5. Despite taking these matters into account, I do have considerable reservations as to the reliability of Mrs Holland's evidence, albeit I am not satisfied that she deliberately sought to give false evidence, contrary to her oath. The reasons for these reservations will become apparent. 6. I do also have some reservations about the reliability of the evidence of Mrs Holland's sister, Ms Diamandis, who was with her when she fell. I do not have such reservations about the evidence of her husband, Mr Holland, or that of Mr Dutton, who was formerly the Council's director of city infrastructure, with responsibility for road repair, prior to the Council's amalgamation with another council. 7. Mr Dutton was not employed by Council until 2014 and then only for some years prior to the amalgamation, and so his evidence fell within a limited compass. He was no longer a Council employee when he gave his evidence. I do not accept the submission advanced for Mrs Holland that his evidence was partisan, or that he attempted to support the Council's case, when cross-examined, rather than adhering to his oath. 8. There were also submissions advanced for Mrs Holland in relation to the claimed inconsistency of evidence given by Dr Giblin and Dr Bentivoglio with answers they had earlier provided, with the result, it was submitted, that in a number of important respects it was difficult to ascertain what their actual opinions were. I also do not accept those submissions. The state of the road where Mrs Holland fell 1. What Mrs Holland had to establish was not only that in 2011 the Council had control of that part of the intersection where she fell, but also that it had breached its duty to take reasonable care to prevent or eliminate the dangers which then existed there and further, that when she fell, Mrs Holland had not taken reasonable care for her own safety. Conclusions about those matters depended on the state of the road in 2011, her case being that it was then in a dangerous state of disrepair. 2. Sections 5D and 5E of the Civil Liability Act are relevant to the question of the Council's claimed breach of duty. They provide: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 1. In Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [14] and [16] it was observed that: "[14] The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. … [16] The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a "but for" test of causation[12]. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence." 1. For reasons which I will explain, I am satisfied that Mrs Holland did not meet the onus which was so imposed upon her, the evidence not establishing that in 2011 the road was in a dangerous state of disrepair. 2. Mrs Holland's fall, alone, could not establish either that where she fell was dangerous, or that the Council had breached its duty to her. Not every trip and fall is the result of someone else's negligence, let alone the result of a danger in the surface on which the fall occurred. As Gleeson CJ discussed in Brodie at [6], Mrs Holland had to establish that: "... the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land." 1. Mrs Holland's case relied on the report of Mr Adams, an expert in ergonomics and safety management, evaluation of workplaces, workstations and other environments, in order to identify potential hazards and assess associated risks of injury. He was not required for cross-examination. She argued that his opinions established that it was a dangerous trip hazard in the road which caused her to fall as she did, the place where she fell being a particularly dangerous area for such hazards. That was said to be due to the need for pedestrians to remove their eyes from the roadway to watch for traffic, as they crossed the intersection. 2. Reliance was also placed on the November 2015 report of Mr Grieve, a building consultant, civil engineer and lawyer, who unlike Mr Adams, was instructed with the photographs of the intersection Mrs Holland and her husband took in 2011. He does not appear to have inspected the intersection and assumed that the place where Mrs Holland fell, was the place identified in the photographs in Mr Adams' report, which he had taken in 2014. 3. In Mr Grieve's opinion the methodology of the repair to what he considered to have been a brick paved intersection which had been repaired on a number of occasions with bituminous asphalt, had resulted in some areas which remained uncracked and others significantly cracked. That was because of failure of the base course, which was incapable of supporting the traffic loads. 4. Mr Grieve considered that the cracked area of bitumen adjacent to the accident site had settled due to failure of the supporting pavement layers, which had resulted in a depression. He also described the methodology of repair and expressed the opinion that the cracking would have been visible to Council employees for a considerable time before the accident; that the failed areas made it foreseeable that the surface contained depressions; and that it would have been prudent to repair the cracked areas as soon as possible after they first appeared. 5. There are a number of reasons why the case, so advanced, cannot succeed, even though Mr Adams and Mr Grieve were not required for cross-examination. 6. There are well known difficulties in the use of photographs to determine issues such as those which arose in this case: Tran v Nominal Defendant [2011] NSWCA 220 at [172]. 7. While it may be accepted, nevertheless, that the state of the intersection depicted in the 2011 photographs was such that it could possibly have caused Mrs Holland to fall, given its state of repair, rather than her fall simply being the result of a misstep, I am not satisfied that the evidence establishes that the road was dangerous. Nor am I satisfied that it was the state of the road, rather than a misstep, which was what caused Mrs Holland to fall as she did, notwithstanding that Mr Dutton agreed that lips of 1cm on the surface of the road, of the kind Mr Adams identified in 2014, were trip hazards. That alone could not establish Mrs Holland's case, that she fell because the surface of the road was dangerous. 8. Neither Mr Adams nor Mr Grieve considered the similarities or differences in the surface of the road between 2011 and 2014, which a comparison of the photographs and in Mr Adams' case, his inspection in 2014, might have shed some light on. Logically, the road having already been cracked in the way which can be seen in the 2011 photographs and the intersection not having been repaired in the intervening period, its state can only have deteriorated, given the nature of the traffic which travelled across that intersection. 9. The photographs which Mrs Holland and her husband took of the intersection in 2011 were not dealt with in Mr Adams' report. There appear copies of photographs which he took in 2014, on which it is identified where Mrs Holland, who was with Mr Adams when he inspected the intersection, instructed him that she fell. That this was the place of the fall, was not, however, established on the evidence. 10. In their evidence both Mrs Holland and Ms Diamandis described Mrs Holland's fall. Their accounts differed as to the place of the fall, what it was caused by, its nature and direction. These were not matters Mr Adams had considered. 11. That made it difficult to accept the opinions which Mr Adams expressed, as relevant to the state of the road in 2011 where Mrs Holland actually fell. His opinions rested on the place that Mrs Holland finally identified only in 2014, as the place where she fell. 12. In her cross-examination Mrs Holland agreed that the photographs which Mr Adams then took were not taken from the part of the footpath, from which she had stepped onto the road. Nor, it would seem, were the 2011 photos. This explains part of the difficulty which Mrs Holland no doubt confronted, when her solicitor first asked her in 2014, to identify on the 2011 photographs, the place where she fell. 13. Mr Adams' opinion of what he observed in 2014 was that there were dangerous trip hazards where Mrs Holland told him that she had fallen, which the Council should have repaired. Amongst other things, Mr Adams found a trip point measuring 12mm in the road, which he considered to have presented a danger, which should have been repaired. That was not a conclusion which Mr Dutton came to, however, when he inspected the road in 2014, even though he agreed that a lip of around that measurement, was a trip point. 14. It is not necessary to deal with Mr Adams' opinions as to steps which could have been taken to highlight the risks which the intersection posed, about which there were issues as to practicality and safety. Mrs Holland's evidence was that the fall occurred at about 2pm, in bright sunny conditions, as Mr Adams also noted in his report: at 2.2.5. He also noted at 2.1.3 that Mrs Holland had taken only a few steps onto the roadway and was approaching the "pedestrian only" area, where she suddenly felt the front of her left foot catch on an unseen obstruction, resulting in a trip, loss of balance and forwards fall, she landing on the roadway, with her left arm thrust forward. Mr Adams noted, however, that Mrs Holland was unable to identify the specific obstruction that caused her to trip and fall: at 2.2.4. 15. It emerged from Mrs Holland's cross-examination, however, that the place of the fall identified in the photographs in Mr Adams' report, was the third location which she had identified as the place that she fell. That has to be considered together with the evidence which Ms Diamandis gave at the hearing, by which a fourth location was identified to be the place of the fall. 16. In her evidentiary statement filed on 20 March 2017, Mrs Holland described the fall having occurred after she took "a couple of steps", her left foot having "seemed to go down a little and got caught on some form of ridge or something that stop my foot from progressing forward as I tried to take the next step", with the result that she lost her balance and fell forward, mainly onto her left side, throwing out her arm to try and break her fall. 17. In her oral evidence Mrs Holland said that she took two steps, went off the footpath onto the road and her foot got caught and she fell forward. When she was still on the road, she saw that it was raised, maybe by 1cm, it was cracked where her foot got caught and it was just raised there, "like, it was a hole". 18. In cross-examination Mrs Holland was shown the photograph on which she had drawn a circle in August or September 2014, to indicate to her solicitors, where she had fallen. She said that, however, was a different part of the intersection, to that identified in Mr Adams' report as the place of the fall, because where she had first identified, was not where she had fallen. 19. Mrs Holland agreed that it was after she had provided those instructions as to the location of her fall to her solicitors, that she had gone to the site with Mr Adams and had instructed him that she had fallen in an entirely different location. She explained this was "because we looked at the road together properly". 20. Mrs Holland denied, however, having changed her account of where she had fallen, in order to assist her case, explaining that her earlier instructions were honestly mistaken. When asked why she had not given her solicitors further instructions, she claimed that she had been given another copy of the photograph, to draw another circle. That photograph was then called for. 21. It then emerged in further cross-examination that Mrs Holland had initially told Mr Adams that she had fallen elsewhere. Later she had identified a third part of the road as the place where she thought she had fallen. It was that location which was depicted in the photographs in Mr Adams' report. 22. One of the difficulties with this evidence was that the area identified in Mr Adams' report as the place of the fall, appeared to be more than two steps from the pedestrian ramp to the road, which Mrs Holland said she had taken, when she fell. Mrs Holland did not agree that the distance there depicted was about six or seven metres, but it is clearly more than two steps. 23. Mrs Holland did not accept that she no longer had a real recollection of where she fell, but she agreed that in September 2014 she had told Mr Adams that she could not identify the particular lip on the road on which she had tripped. Still she denied that her fall could have been caused by her rolling her ankle, insisting that her foot had caught on a high edge. 24. Mrs Holland also said in cross-examination that she had been talking to her sister, as they crossed the road. She agreed that she could then clearly see the cracked surface of the road, but denied that when walking on footpaths before her fall, she had known that there was always a possibility that there would be a hole or something that she could trip on, which she had to keep an eye on. She also denied that she did not need a warning sign, when crossing that intersection, because she could see the state of the road. Her view was that there was a problem and that there should have been a sign warning her and other pedestrians, that the road was not straight, but cracked. She agreed that she could see that the surface was patched and uneven, but she said, not that she was going to fall. 25. Mrs Holland also agreed that she had a responsibility to keep a lookout as she was crossing the road, to avoid potential dangers and that she could clearly see the state of the road, as she crossed it. But, she denied that if she had paid attention to where she was putting her feet, she would not have fallen. 26. Ms Diamandis' evidence was that she was beside Mrs Holland on her right hand side as they crossed the road. Mrs Holland fell down, when they had taken only two or three steps. Ms Diamandis looked to the right and then heard her sister fall and then turned and saw her fall. She also saw a little hole and that it was lifted up. They had not been walking fast, because they then both had large builds. Ms Diamandis also said that Mrs Holland fell onto her left hand side, onto her arm and then she went backwards. The result was that she was left on the ground, complaining about her arm and back. 27. While this corroborated that a fall had occurred, Ms Diamandis' evidence did not corroborate Mrs Holland's account of where the fall had occurred, or how she fell. 28. Ms Diamandis marked a photograph identifying the place where Mrs Holland fell, which appears to be closer to the distance which would have been travelled, if Mrs Holland and her sister had taken the two to three slow steps Ms Diamandis described. That was not the place identified in Mr Adams' report. 29. In cross-examination Ms Diamandis said that they had just taken off from the gutter, she had looked right for traffic and then looked to the left, when she heard Mrs Holland fall and then she looked and saw her falling. She also looked down and said that not only did she see a hole, but that she saw her sister's left sneaker stuck in it, as she hit the ground. Ms Diamandis also described seeing a ridge of about a centimetre, perhaps a bit over. She also said that Mrs Holland had to pull her sneaker out of the hole. 30. The difficulty with this evidence was that Mrs Holland gave no account of her foot being stuck in a hole, or of having to pull her sneaker out of a hole, while she was on the ground. Nor was Mr Adams instructed about such events, but they support the conclusion that Mrs Holland did not fall at the place identified in Mr Adams' report. 31. In the result, I am not satisfied that the evidence has established that Mrs Holland fell at the place identified in Mr Adams' report, as Mr Grieve understood; or that the road where Mrs Holland fell was unsafe, because there was an unsafe trip point there, which could not be seen when Mrs Holland fell, despite the sunny conditions she described. Notwithstanding the views which Mr Adams and Mr Grieve came to, or that in 2014 there were on the road the trip points which Mr Adams identified, his evidence was incapable of establishing that the road was in a dangerous state in 2011. 32. Those conclusions must also be considered in light of what arose to be determined in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, also a slipping case. There the evidence of the expert was that the stairs where the fall occurred were slippery. Other evidence established, however, that there had only been one other occasion when there had been a slip on those stairs, quite a number of years beforehand. This was considered by Powell J to "cast more than a shadow of doubt over any assertion that the stairs were slippery and that the Respondent ought to have taken steps to obviate that risk of injury to its employees arising from that fact": Makita at [10]. 33. Heydon JA (as his Honour then was) noted the collision between the expert's evidence that the stairs were slippery and the body of evidence that there had otherwise been no problems experienced with the stairs being slippery. At [99], Heydon JA observed that the resolution of that collision depended on satisfaction as to the validity of the expert's approach. His Honour concluded at [102] that the expert's conclusions ought not to be accepted uncritically and that it was difficult to be convinced by them, given the lay history of incident-free use of the stairs, which suggested that they were not slippery. In the result, the inference drawn from the history was accepted as preferable to the expert's conclusions. 34. This was a similar case, given that there is no evidence of other falls at this intersection. In this case there is the further difficulty that the evidence did not establish that the part of the intersection to which Mr Adams' opinions related, was where Mrs Holland actually fell on the intersection. 35. The only evidence of complaints in the vicinity are complaints made in March 2003 and February 2011 in relation to the footpath near the post office in Gordon St, near where Mrs Holland fell. There was another complaint in August 2007 in relation to a Telstra pit in the footpath near the Commonwealth Bank, next to the Post Office. Unlike Mrs Holland's complaint, these appear to have been timely ones, but not in respect of the intersection, about which there seems to be no record of complaint, other than Mrs Holland's belated complaint in 2014. 36. It follows that in this case, too, it must be concluded that despite the opinions of Mr Adams and Mr Grieve, the evidence does not establish that in 2011 the intersection was dangerous. Did the Council breach the duty it owed Mrs Holland? 1. The evidence also does not establish that the Council breached the duty which it owed Mrs Holland. The risk was obvious 1. In her evidence Mrs Holland contended that the Council ought to have warned pedestrians such as her, of the risk of falling on the uneven surface of the intersection. Section 5H of the Civil Liability Act provides, however, that a defendant does not owe a duty of care to another person, to warn of an obvious risk to that person. "Obvious risk" is defined in s 5F to be "a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person." As observed in Wyong Shire Council v Vairy (2004) Aust Torts Reports 81-754; [2004] NSWCA 247 at [161], discussed in Glad Retail Cleaning v Alvarenga (2013) 86 NSWLR 482; [2013] NSWCA 482 at [59]: "'Obvious' means that both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence and judgment." 1. Section 5F(4) provides that a risk can be an obvious risk even if it "is not prominent, conspicuous or physically observable". It follows that the submission advanced for Mrs Holland, that the only thing that a reasonable person in the position of Mrs Holland could have done at this intersection was to walk with their head down, watching precisely every step and walking slowly, which would have exposed them to risk of harm from passing traffic. Given the evidence of Ms Diamandis, who plainly did not walk in that fashion across this intersection and the absence of any evidence of other slips or falls at the intersection, these submissions cannot sensibly be accepted. 2. As I have explained, the risks posed by the uneven surface of this intersection were physically obvious to pedestrians such as Mrs Holland. That pedestrians had to keep an eye out for cars crossing the intersection, did not alter that fact. Section 5G of the Civil Liability Act applies. It provides: "5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk." 1. In the result, contrary to Mrs Holland's opinion, the Council had no duty to warn pedestrians who crossed the intersection of its obvious state: Glad Retail Cleaning Pty Ltd at [56]. The Council did not breach its duty 1. There is no suggestion that the surface of the intersection was repaired between 2011 and 2014, when Mrs Holland first made complaint. It is relevant that while its condition can only have worsened over that time with wear and tear, there is no evidence of the Council having received any other complaints about its state. 2. Mr Dutton described the Council's reactive system of road maintenance during his employment, which began in 2014. He explained how the Council responded to information it received about a fault, or hazard, including from elected representatives, telephone advice, or employees such as asset engineers who identify problems, when sent out on other jobs, or other authorities which have the right to perform work on the road. The Council did not give any of its employees the particular responsibility of keeping the state of the road under review, in order to identify when repairs were required at particular locations. On Mr Dutton's evidence the Council's system required repairs to be dealt with according to an assigned an order of priority, depending on the nature of the problem identified. 3. Mr Dutton agreed that a trip hazard of something in the order of a centimetre, which Mr Adams had identified in 2014, should take an employee's eye, because that level of unevenness could constitute a trip hazard and they knew to look for such hazards. However, that evidence is not a sufficient basis on which it can be concluded that the Council breached the duty it owed Mrs Holland. 4. The Council led no evidence about what the system was, before Mr Dutton was employed. There was also no evidence, however, that it ever had a system which involved regular inspection and repair of roads. The photographs in evidence are consistent with there being no such system in operation in 2011, when Mrs Holland fell. The proper inference is that the system Mr Dutton described was in place before his employment began. 5. Mr Dutton also explained how the Council came to answer the interrogatories as it did. Mr Dutton also said that he had gone to look at the site himself "some time ago". He was not asked when, but it may be inferred that it was after his employment commenced in September 2014. He was not aware of other Council employees having inspected the site. His inspection did not result in any repair work at the intersection being undertaken. 6. Mr Dutton was also taken to the 2011 photographs. His opinion was that what was depicted there, despite the obvious level changes in the surface of the repaired road, did not require further repair and would not have led him to prioritise the repair of that road, if he had then seen it. Even after he saw the intersection in 2014, he did not require repairs to be undertaken there. 7. Mr Dutton was also cross-examined as to various methods of road repairs, their advantages and disadvantages and their potential costs, which it is unnecessary to discuss. In re-examination Mr Dutton explained that there were thousands of trip hazards of the type depicted in the photographs in Mr Adams' report, located in the Council's roads and footpaths. 8. As I earlier explained, I am satisfied that there is no proper basis on which Mr Dutton's evidence about these matters could be rejected. On his evidence he did not require the intersection to be repaired in 2014, because he did not consider the intersection to be dangerous and because there were other repairs which Council had to undertake, which had higher priority. 9. The photographs all show the surface of the intersection after Mrs Holland's fall. While there were complaints about the Council's record keeping and the adequacy of its response to a subpoena, there are in evidence Council documents which record that other complaints were received and how they were dealt with. They include a complaint about the footpath near where Mrs Holland fell and which was repaired, in accordance with the reactionary system Mr Dutton described. 10. In Botany Bay City Council v Latham (2013) 197 LGERA 211; [2013] NSWCA 363, another fall which occurred in 2011 on the paved footpath of another street in the Council's locality, arose for consideration. In that case the Council's attention had been drawn to the area of the fall on the following day and the Council had replaced pavers in that area, including the one which caused the fall. 11. In this case, the Council learned of Mrs Holland's fall only after the proceedings were commenced in 2014, even though Mr and Mrs Holland returned and took photographs of the intersection, about a month after the fall in 2011. There was no evidence of the Council having received any other complaints about this intersection, before or after her fall, other than in relation to a complaint in the nearby footpath, which was repaired. 12. Unlike this case, in evidence in Latham were letters and emails of complaints about the footpath, which did nominate the precise area where the plaintiff fell. They were found to have a common theme that the footpath in "numerous places" was "uneven and potentially dangerous to walk on". 13. In upholding the appeal against the finding of negligence made against the Council in Latham, reference was made to the requirements of the Civil Liability Act, in the context of the observations in Brodie. There it was observed: "[355] There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level." 1. The result in Latham was that it was concluded at [43] that the plaintiff had not established, on the evidence, that there was any apparent irregularity beyond that which might be expected on an unexceptional footpath in a suburban street and that even if the Council had inspected the area before her fall, in order to identify irregularities in the footpath that could give rise to the risk of pedestrians tripping and falling, nothing would have been done, because nothing was reasonably required to be done. 2. In the result the effect of s 5B(1)(c) of the Civil Liability Act, which requires that the evidence establish that a reasonable person in the defendant's position. would have taken precautions against the risk of harm in question, was that the Council had not been negligent in failing to inspect the area, or eliminating unevenness in the pavers. It was therefore not liable to Ms Latham. 3. This is a similar case. 4. The 2011 photographs establish the state of the road soon after Mrs Holland fell. The surface of the intersection had been repaired and the repairs had deteriorated, with the result that the surface of the intersection had obvious hazards. Nevertheless, they were ones which it could reasonably be expected that people crossing the intersection in broad daylight would see, in the ordinary course, as they crossed the intersection. Pedestrians undoubtedly needed to take care, when they crossed that intersection. That it was dangerous, or in such a state of disrepair that Council was in breach of its duty of care to those pedestrians, including Mrs Holland, by failing to repair the road further, was not, however, established. 5. The 2011 photographs show that the road was then uneven and cracked. It appears to have been paved and later covered by asphalt, with the asphalt having deteriorated after it was laid. They also show that the surface was cracked and raised at some points and that it had been patched in some areas. 6. It would undoubtedly have been preferable for that intersection and the other roads which were in a similar state, as was Mr Dutton's evidence, to have been repaired. There were no doubt various things on the surface where Mrs Holland fell, on which a pedestrian could have stumbled, as she did, if necessary care was not taken. A pedestrian who did not take reasonable care for his or her own safety, while walking across that intersection, was undoubtedly at risk of stumbling and falling. However, thus does not provide a sufficient basis on which it can be concluded that the Council was in breach of its duty of care to her. 7. As was argued for Mrs Holland, it is relevant to take into account that she fell on a roadway where a pedestrian not only had to take care to avoid other pedestrians, but also cars. Pedestrians crossing in the direction that Mrs Holland was walking, had to keep an eye out for cars coming towards them down Gordon Street from the right, until they reached the middle of the intersection, where they were sheltered by a garden bed. From there they had to take notice of cars entering Gordon Street from Gardeners Road on their left, until they reached the opposite footpath. 8. That undoubtedly increased the risk of a fall and accordingly, the need for pedestrians to take care, when crossing at this uneven intersection. But that would also have been obvious to anyone walking there: Richmond Valley Council v Standing [2002] NSWCA 359 at [53]. 9. That a person who was taking reasonable care of their safety could not walk safely across that intersection, as very many pedestrians undoubtedly did, despite the condition of its surface, as was Mrs Holland's case, was not established. 10. This conclusion rests not only on the evidence, earlier discussed, but also on that of Mrs Holland and Ms Diamandis. Their evidence establishes that Mrs Holland lost her footing while crossing the intersection with her sister, as they were talking. That helps explain their contradictory evidence about where the fall occurred, what caused it and how Mrs Holland fell. When that is considered together with the absence of any evidence of other complaint about the state of the intersection, or about a fall or even a slip there, either before or after Mrs Holland fell in 2011, the conclusion that Mrs Holland met the onus which fell upon her, cannot be reached. 11. No complaint was made about the state of this intersection until 2014. There is evidence that Council had received other complaints, to which it attended, including about the state of the footpath near the intersection, which was inspected and repaired, but no complaint about the state of the road, even from Mrs Holland, before 2014. 12. That the Council employee who undertook the repair on the footpath near the intersection, did not raise any concern about the state of the road, also supports the conclusion that in 2011 the Council was not in breach of its duty to Mrs Holland. 13. The absence of any complaint in 2011 from Mrs Holland, her sister, others who saw Mrs Holland fall, or any of the many other pedestrians who crossed Gardeners Road at the point where Mrs Holland fell, is powerful evidence that the Council was not in breach of its duty of care to Mrs Holland in 2011, as she only claimed when she commenced these proceedings in 2014. 14. In the result, that in 2011 the Council breached the duty it owed Mrs Holland, is not apparent. The conclusion that the fall was either the result of Mrs Holland's failure to take reasonable care of her own safety, or mischance for which no-one is responsible, is unavoidable. The s 45 defence 1. On the evidence, even if Mrs Holland had established that there had been a breach of the duty which the Council owed her when she fell in 2011, the application of s 45 of the Civil Liability Act would have resulted in her claim failing. 2. The section has the effect that the Council is not liable for the harm Mrs Holland suffered from its failure to carry out road work on the intersection before she fell in 2011, unless the evidence establishes that at the time of her fall it "had actual knowledge of the particular risk the materialisation of which resulted in the harm". 3. That was not established by the evidence, even though it must be accepted that the existence of the requisite knowledge can be inferred from other evidence. There was no such evidence in this case. While I accept that it must be inferred from the evidence I have discussed, that the repairs to the intersection which had obviously been undertaken before Mrs Holland fell, must have been undertaken by Council, that the Council had actual knowledge that in 2011, when Mrs Holland fell, that the road was in a dangerous state of disrepair, cannot. 4. Mrs Holland accepted that what was decided in Nightingale v Blacktown City Council [2015] NSWCA 423 precludes reliance both on the knowledge of Council employees who must have been in the vicinity of the intersection on numerous occasions before she fell in 2011 and on a negligent system of inspection. The formal submission was that Nightingale was wrongly decided and that the approach of McColl JA in North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27 was correct, but it was accepted that the Court as presently constituted, is bound by Nightingale. 5. It was nevertheless argued that it was a failure to properly compact the road when it had earlier been repaired, which had resulted in settling and the creation of the trip hazards which Mr Adams identified in 2014. That was submitted to be supported by the opinions of both Mr Grieve and Mr Dutton and so, it was argued, it would be inferred that if the area had been properly repaired by the Council prior to the fall in 2011, the trip hazards on which Mrs Holland fell would not have been created. 6. It was also argued that Jones v Dunkel inferences arose from the Council's failure to call evidence from Council officers who had driven or walked over the area, in the course of their duties. 7. These submissions may not be accepted. 8. Mr Grieve's opinions about the inadequacies of the construction and repair of the intersection and how those repairs wore over time, to the dangerous state that Mr Adams identified that they were in when he inspected the intersection in 2014, were not challenged in cross-examination. That, however, is not enough to displace the provision made in s 45. 9. It was for Mrs Holland to establish that the Council had actual knowledge of the particular risk which materialised in 2011 and resulted in the harm which she claimed she had then suffered. Neither Mr Grieve's opinion that the road should have been further repaired, as soon as the repairs earlier made had cracked, nor Mr Adams' opinion that in 2014 the dangerous trip hazards he identified existed, established the existence of the requisite knowledge in 2011. 10. Like in Latham, the evidence does not establish that the Council had actual knowledge of whatever it was on the road, if anything, that caused Mrs Holland to trip in 2011: see Latham at [49]. Contributory negligence 1. Section 5R of the Civil Liability Act provides: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 1. The question of whether Mrs Holland was guilty of contributory negligence must be determined objectively. What must be considered is whether she took that degree of care for her own safety, that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) NSWLR 393; [2014] NSWCA at 139 at [54]. 2. The Council's case was that if Mrs Holland did succeed, that it would be concluded that there was at least 50% contributory negligence on her part. She resisted any finding of contributory negligence. 3. On the evidence I have discussed, the Council's submission must be accepted. I would, in circumstances where there is no evidence that anyone else had ever fallen or slipped on this intersection, have assessed it much higher, namely, at 80%. Damages 1. Despite the conclusions I have reached, it is also necessary to deal with the parties' cases on damages. Causation 1. The Council conceded that Mrs Holland has suffered an injury to her left elbow, the precise nature of which is unclear, which could have been caused in the 2011 fall. It submitted, however, that the evidence does not establish that this injury has resulted in any relevant incapacity, or disability. Mrs Holland accepted that the injuries to her left elbow and arm had largely resolved. 2. The psychiatric experts Dr Klug and Dr Lewin were largely agreed that Mrs Holland had suffered a psychiatric reaction to the accident and its sequalae of pain and disability, a condition which impacts on her, to some degree. 3. What was in issue was identified in the final address advanced for Mrs Holland to be first causation, in respect of her back and secondly, the effects of the fall on her pre-existing conditions. 4. Mrs Holland has a history of serious back problems, even before the 2011 fall, which resulted in spinal surgery only eight months prior, as well as psychiatric problems. Her case was that on the balance of probabilities, however, it would be concluded that the fall and her second spinal surgery in 2012 were causally related. 5. Mrs Holland has also been diagnosed to be suffering instability syndrome, a result of the surgical procedures to her back. She has also been advised that she requires further surgery for disc excision and fusion, which she has not yet pursued. The view of one of the experts, Dr Giblin, was that it would have been preferable for her to have had that surgery, instead of the second surgical procedure which she underwent. 6. To establish her case Mrs Holland relied on what was observed in Mason v Demasi [2009] NSWCA 227, which considered what was discussed in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. Namely, that there are difficulties in challenging the acceptance of oral testimony of a plaintiff, on the basis of inconsistent histories given to medical practitioners. 7. The view of the experts Dr Bentivoglio and Dr Giblin in their joint report was that after the 2010 surgery to Mrs Holland's disc, there was a permanent weakness in her back, which had resulted in permanent impairment for full time employment and that this had been made worse by her second injury, there being no other contributing factor. Even without the fall, however, the first surgery left Mrs Holland vulnerable to further back injury, even from an innocuous event. 8. In their concurrent evidence the experts were finally not agreed about whether it was the fall which had led to the further back problems which resulted in Mrs Holland having further surgery in 2012, but they did agree that this largely depended on whether she was accepted, as to the onset of her symptoms and their nature. Even without further injury, however, there was, a 10% chance of recurrence occurring, within one to three years of the first surgery. 9. The experts also agreed that Mrs Holland now requires a spinal fusion and that there is almost zero prospect of her being able to return to work afterwards and a significant risk that this surgery will not cure her now chronic pain, particularly given her history of use of pain medication. She is also at risk of further degenerative change. 10. The experts' conclusions rested on the history which Mrs Holland had given them as to the 2011 fall having resulted in immediate ongoing back pain. The difficulty is that this history was not supported by the medical records of her treatment after the fall. Those records were only produced during the hearing. 11. The question of causation must, accordingly, be resolved in light of evidence which shows that Mrs Holland did not seek treatment after the June 2011 fall, for the serious unrelenting back pain which on her evidence at trial, she was even then suffering. There was an x-ray of her back taken in June 2011, two days after the fall, but on the expert evidence that was a useless investigation. Despite the claimed severity of the pain, the fact is that the GP's records are consistent with Mrs Holland only next pursuing any treatment for her back, in December 2011. 12. In her evidentiary statement, served only shortly prior to hearing, Mrs Holland outlined the history of injury to her spine and her psychiatric problems. Her evidence in cross-examination and the medical records, do not all support what she there said. 13. Mrs Holland there recounted that in June 2008, she became her mother's carer, she having suffered disabling consequences of treatment for cancer. Mrs Holland continued to provide that care when she gave her evidence, assisted by her husband, children and a paid fortnightly cleaner. 14. In 2009 Mrs Holland woke one morning with such severe back pain that she could not get out of bed. At the time she put this down to exercise she was then doing. Mr Holland's oral evidence was that he recalled nothing that had preceded Mrs Holland's pain, just that she had some back pain and then went and had it checked out. 15. In September 2009 Mrs Holland said that she was referred for CT scans and on 5 January 2010, was admitted to Westmead Hospital, with severe pain. After discharge on 7 January, she came under the care of a spinal surgeon, Dr Cree. She had an MRI in June 2010 and on 10 November underwent a discectomy and necrolysis at L5/S1. She was discharged on 13 November, but readmitted on 10 December, for removal of a left rib, where a benign growth was found. She was discharged on 13 December 2010. 16. In cross-examination Mrs Holland denied having been told by Dr Cree that there was a danger of reoccurrence of the disc protrusion. Mrs Holland had difficulty remembering various things, which may well be the result of the ongoing pain she was undoubtedly experiencing at the trial and the treatment which she receives for that pain. While I accept that Mrs Holland was not being deliberately untruthful, that aspects of her evidence were unreliable, must be accepted. Where her evidence departs from what is recorded in the documents in evidence, it simply cannot be preferred. 17. In her statement Mrs Holland said that her health after the 2010 surgery was generally very good and that she was not having any treatment for her back; her day to day activities were not restricted; she was able to do all her normal duties around the home; she could go bike riding with her children, kick a ball and do her shopping. Nor was she taking any painkillers or anti-inflammatories. In cross-examination Mrs Holland said that she was 100% improved. She also denied having told another doctor to whom her lawyers had referred her, that she continued to suffer some mild symptoms in her right buttock, or earlier having told Dr Pope that she then had minor ongoing problems. 18. Mrs Holland also said in her statement that she was emotionally well, despite having suffered some psychological issues in her youth, following sexual assaults from ages 5 to 15, for which she had not sought psychological assistance until she turned 40, which she had pursued until about 2015. She was also planning to return to work when her youngest daughter turned five and went to school. 19. Mr Holland's evidence was that ten weeks after the operation, things were getting back to normal for Mrs Holland and they even went out and bought a bike. By June 2011 she was not receiving treatment and she was back to normal activities, although being careful with heavy lifting. After the fall, she left hospital complaining of pain to her arm and down her left side. Her arm was in plaster. At that time it was just her side troubling her and Mr Holland had to take over the housework. Mr Holland said that there had been no change since, as Mrs Holland tried, but could do very little. 20. Mrs Holland said in her statement that the pain and disability that she had suffered since the fall in 2011, had significantly aggravated her emotional state and left her feeling much more depressed than she was before the fall. 21. As to the consequences of the fall, Mrs Holland said that when she was helped to her feet, Ms Diamandis took her to her GP, Dr Giallusi, whose rooms were nearby. She was given an injection for the pain she was suffering and taken by ambulance to Prince of Wales Hospital in Randwick, where her left arm was x-rayed and she was then released. She also had gazing on her left arm and over her knees. Over the next few days her lower back pain became increasingly worse and she went to see a GP, Dr Tamyo. She continued to be in pain and returned to see Dr Lee. 22. In cross-examination, however, Mrs Holland described the pain in her lower back to have been excruciating, that she had pain in her left side and arm and that her whole body was in pain and she was in a half cast. She also said that in 2009 her problem had been different, namely, sciatica in the right side of her back. 23. Mrs Holland also said in her statement that she had x-rays of her right shoulder and wrist and an ultrasound on her right shoulder in July 2011 and a bone study in August. In cross-examination she said that this was in preparation for a gastric balloon procedure. On 21 September she was tested to see if she was suitable for that procedure. The balloon was later implanted, but it was unsuccessful. In cross-examination she described then being in excruciating pain and it having to be removed. 24. It was not until December 2011 that Mrs Holland had a CT of her lower back and she was referred to a neurosurgeon Dr Pope. 25. Records sought on subpoena from the Prince of Wales Hospital do not support Mrs Holland's case. The relevant GP records were only produced during trial. They confirmed that while Mrs Holland had an x-ray to her back and right knee two days after the accident, she did not pursue any treatment for back problems until December 2011. Those records did not support her evidence of having made repeated complaints of back pain. 26. When those records were produced Mrs Holland was recalled for further cross-examination. She then denied that when she saw the GP Dr Tamayo, the day after the fall, that she did not complain of back pain. Her evidence that she was then in excruciating pain and did not sleep well all night and that it was not pain in her left arm, about which she complained and received treatment, is difficult to accept. This is because she pursued no treatment for that pain, despite repeatedly seeing Dr Lee for other complaints, which appear to have been about less serious injuries and concerns. 27. Mrs Holland's evidence was that from the day of the fall she had back pain which started on the left side and that recently, it had alternated to the right. Mrs Holland could not remember the dates that she was referred for various scans, but insisted that she had told the doctors that she had back pain "from day one". The records simply do not support that evidence. 28. For Mrs Holland it was submitted that the reasonable inference was that her GP would not then have been too concerned about complaints which she was making about her back, because they would have been put down to sequalae of the surgery, it being hoped that the complaints would diminish. 29. The difficulty with that submission was the evidence of Mr and Mrs Holland that prior to the fall she was suffering no back pain. Her case is that it was the fall which had resulted in her being taken by ambulance to Hospital, having not only injured her left arm, but suffering considerable pain in her back, pain which was ongoing and about which she made repeated complaint. It is difficult to accept that a GP such as Dr Lee, who appears to have kept careful records of what Mrs Holland was seeking treatment for, would so have dealt with Mrs Holland. That he would have kept no record of her repeated complaints, from soon after the fall in June 2011, despite her history of relatively recent spinal surgery and would rather have dismissed Mrs Holland's repeated reports of considerable pain as likely to have been caused by that surgery, which had seemingly been a success up to the time of the fall, and would have not offered her treatment for the considerable pain she claims then to have been suffering, is unlikely. So is the absence of any investigation into the cause of such ongoing pain, while other less serious complaints were investigated and treated. 30. That Dr Lee was not called, precludes the inferences urged, being drawn. 31. It is relevant that in March 2012, Dr Lee referred Mrs Holland to Dr Pope on the basis of sciatica since June 2011, when she had the fall. That, it was argued corroborated her evidence as to suffering ongoing back pain from the time of the fall, but in the absence of Dr Lee being called to explain the discrepancy between the records which he kept and what he said in this referral, I am not satisfied that this conclusion can be drawn. 32. Mrs Holland saw Dr Pope in March 2012. She was sent for another bone scan and x-ray of her lower back in March and had an MRI of her lumbar spine in April 2012. There was further scanning of her right shoulder in July. 33. In her statement Mrs Holland said that by July 2012 she was having pains running down both of her legs and pain on both sides of her lower back, she continued having problems with her arms and shoulders, a throbbing pain in her left elbow, headaches and neck pain. On 27 August Dr Pope operated on her lower back and she was discharged on 29 August. The surgery was unsuccessful. She developed a wound infection and was readmitted to Hospital in September, for approximately 54 days and had further surgery on the wound on 25 September. 34. Mrs Holland was referred to Dr Conrad, by her lawyers. He recorded a history which included Dr Pope's surgery some six weeks after the fall. Mrs Holland said in cross-examination, that he must have misunderstood what she told him. 35. In her statement Mrs Holland also said that she had further CT on 4 October 2012 and was discharged from Concord Hospital on 12 October. She had a further X-ray on 19 November. She was still suffering ongoing pain, for which she had been prescribed various pain medication, but in November, doctors at the pain clinic she was referred to, decided to wean her off various medication. In December she had an MRI on her lumbar spine. In January 2013 she began a course of massage treatment to her neck and back, which provided temporary relief. She has continued to pursue such treatment on and off. 36. Mrs Holland also said that she pursued weight loss with a dietician under whose care she came in February 2013. In March she had further x-ray and MRI scans of her back. The severe pain in her back continued and was radiating to her legs. On 16 March she had a gastric sleeve and hernia repair procedure. She commenced chiropractic treatment in May, which provided some relief. In September she had further x-ray and MRI scans of her back, as well as another bone scan. 37. In cross-examination Mrs Holland could not remember telling Dr Pope in May 2013, however, that she had improved dramatically, with a great reduction in back pain, or that she had no or very minimal pain in her leg and that she was walking without a walking stick. Nor could she remember telling him that she was able to walk on her tip toes, without assistance. She said that the second back operation was not successful. 38. Mrs Holland agreed in cross-examination, however, that in October 2013 she told Dr Pope that she had lost 37 kg after the gastric surgery, which she said was a success. She was then attending the gym five days a week and being treated at the pain clinic. She denied, however, that by then there had been substantial improvement in her back. 39. Mrs Holland did agree that in 2014 she had a severe recurrence of lower back pain and that Dr Lee sent her back to Dr Pope. She could not recall telling him in March 2014 that six weeks earlier she had developed hip pain, but she recalled being told that she had suffered a new disc extrusion at the L5 S1 level. She also agreed that she had developed pins and needles in her neck and arms and that they affected her ability to clean around the house, so that she did not vacuum or mop. She also said that Dr Pope then advised her to have a spinal fusion. 40. In her statement Mrs Holland said that in March 2015 she had an MRI scan of her left shoulder, an x-ray of her neck and an MRI of her lower back, with further x-ray of her neck in October and MRI in November. Dr Pope recommended further surgery to her back, which would have to be undertaken through the stomach, which had only a 35% chance of improvement. In cross-examination Mrs Holland denied that Dr Pope had advised her that there was a 65% chance of improvement in her pain, or of having any awareness of the report he provided Dr Lee, to that effect. 41. In her statement Mrs Holland also said that was when she sought another opinion. The neurosurgeon Dr Sheehy recommended further surgery in February 2016 and Mrs Holland was then referred to Dr Steel. 42. Dr Steel recommended a fusion in March 2016 and she was referred to a vascular surgeon for assessment of the suitability of surgery through the stomach. Mrs Holland proposes to have the surgery which Dr Steel recommended, when she can pay him privately, because he will not do it on Medicare. 43. In cross-examination, when asked why she had waited for two years to pursue the spinal fusion Dr Pope had recommended in early 2014, Mrs Holland explained that she wanted to have the surgery as a private patient and so has asked Dr Lee to refer her to a surgeon who could do so, but had to wait, because she "didn't want to take a risk going to Medicare again for it because of infection. I've been through hell and through a lot of pain, I wasn't going to get another doctor under Medicare to do this surgery again and to risk my life". 44. In her statement Mrs Holland also said that it was in November 2016 when she commenced physiotherapy and hydrotherapy, which provided her with some help. In cross-examination Mrs Holland explained that she was then still seeing the chiropractor, but her pain was getting worse and she wanted to see if a physiotherapist could help. 45. In her statement Mrs Holland also said that in 2016 she had an injection into her left shoulder, which had resolved the problems she was experiencing, but the injection into her right shoulder did not assist, which she attributed to the use of a walking stick. She continues on pain medication and described the pain in her back and legs to be getting worse, and that she experiences a burning sensation under her feet and pins and needles down her legs. She has problems sleeping. 46. There were a number of difficulties with Mrs Holland's case, so advanced, even though the medical records supported her having had a good recovery after the first back surgery. When Mrs Holland fell in June 2011, she was not receiving further treatment for her back, but the records do not support her having had the 100% recovery which she claimed in her evidence she had had. Nor did the expert's evidence. 47. The evidence I have discussed establishes that Mrs Holland did not seek further treatment for her back until December 2011, when she had the MRI which identified the further disc protrusion. The records do not support a history of complaint about having to enduring severe, untreated back pain from the time of the fall in June 2011, until the December investigations. Even then she was not referred to Dr Pope until March 2012. 48. In the meantime Mrs Holland had undergone the gastric banding procedure which failed. On the case advanced for her, much was then happening in her life, in particular, her strong desire to lose weight, which was then a significant focus of her attention. 49. The problem with this submission is that if, prior to December 2011, Mrs Holland was suffering the back problems she described in her evidence, it is not only likely that Dr Lee's note would have reflected that she had sought treatment for that serious problem, given her evidence and the medical records which reveal how she then approached other problems with her health. Both her approach to her health problems and Dr Lee's approach to record keeping, support the conclusion that if Mrs Holland's back was then troubling her, there would have been a record of such complaints and the treatment provided 50. Further, if Mrs Holland had sought treatment for her relentless back pain, that would undoubtedly have been a problem drawn to the attention of the surgeon who had to perform the gastric banding surgery. The records also do not suggest that this occurred. 51. Also necessary to take into account is the experts' views, given during the concurrent evidence, that the back and leg symptoms which Mrs Holland described were separate; that after the 2010 disc operation she would have been suffering some degree of lower back pain; that after even a relatively innocuous event, if there was pressure on the disc prolapse, symptoms would develop first in the back, within 10 days to a few weeks and then pain in the leg, because of impingement of the nerve. 52. Despite 20 intervening attendances, between June and December 2011, principally on Dr Lee, when Mrs Holland made complaints about her left arm and shoulder, right arm, wrist, shoulder and knee, there was no record of any complaint or problems with her back. 53. It follows that it cannot be concluded that it was not in June 2011 that Mrs Holland's back was further injured, when she fell on the intersection. The pain for which she pursued treatment only in December 2011, must have had some other cause, even if the fall had contributed to her succumbing to that cause. 54. On the Council's case, this medical history is consistent with Mrs Holland having in December 2011 suffered a recurrence of her disc protrusion, as was revealed on the CT undertaken on 30 December 2011. Subsequent GP records show Mrs Holland's ongoing complaint of back pain. 55. That Mrs Holland called no evidence from Dr Lee gives rise to a Jones v Dunkel inference. That principle is concerned with a party's unexplained failure to give evidence or call a witness, where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence. 56. Its operation was explained in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75] - [96]. The three relevant considerations are: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained. 57. When those conditions are satisfied, the inference that the evidence would not have helped the party's case may be drawn and used in two ways. First, in deciding whether to accept any other evidence given, whether for or against that party, which relates to a matter about which the person not called could have given evidence. Secondly, in deciding whether or not to draw inferences of fact which are open, about matters that person could have given evidence about. 58. An adverse inference must be drawn in this case, given that Mrs Holland's evidence is not supported by the records which Dr Lee kept when he saw her. Even in the March 2011 referral, it was sciatica to which he referred. The absence of a recorded history of the severe ongoing back pain Mrs Holland gave oral evidence about and the failure to call evidence from Dr Lee about that history, supports the conclusion that her evidence cannot be accepted as being reliable. Had what she described been the true position, it is likely that she would have been referred to Dr Pope to deal with what in June 2011 would have been a serious exacerbation of the injury which had required surgical treatment in 2010. 59. In the result, it cannot be concluded that the evidence establishes that what Mrs Holland was referred to Dr Pope for only in March 2012, was caused by the June 2011 fall. Contribution 1. Even if it were accepted that the fall had contributed to the back problems which emerged in December 2011, as was contended for Mrs Holland, consideration has to be given to the extent of that contribution and the probability that Mrs Holland's problems, would in any event, have materialised, as the Council contended. On the expert evidence, with her history, that is entirely likely. 2. For Mrs Holland it was argued that given the various views as to her likely condition, but for the fall, it would be concluded that damages would be assessed on the basis that she would receive 90% of the total damages. The assessment of the chance that circumstances other than the Council's negligence would, in any event, have brought about the injury of which Mrs Holland complains, having to be assessed in accordance with Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. There it was observed at 643: "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded." 1. To advance that argument reliance was placed on: * Mrs Holland's good result from the 2010 surgery; * that despite this there was a 10% chance of recurrence, in the short term; * that on the balance of probabilities there would not have been a recurrence; * that he fall was a sufficient cause of the recurrence and its most likely cause; * that as the result of the surgery Mrs Holland had a vulnerable back and resulting physical restrictions; * the second surgery had made her back even more vulnerable; and * her ongoing condition was the result of both protrusions and surgery. 1. Accordingly, there was a 90% chance, but for the fall, that Mrs Holland would not have needed the second surgery, the impending fusion and the use of a walking stick. But for the fall there was also a 90% chance that the bad result from the second surgery would not have arisen. This may in part have been the result of Mrs Holland's emotional resources, discussed by Dr Giblin in conclave, but there was now a 33% chance that the further fusion will not assist relieve her symptoms. With her emotional resources not assisting her; whenever she has the surgery, the future is dismal. 2. The difficulty with the case so advanced is the evidence of the circumstances in which Mrs Holland first came to be injured. Further, even without the fall there was a significant chance that Mrs Holland would have suffered further injury to her back, as she later did. The experts' views about the second surgery and whether a fusion at that point would have been preferable also needs to be considered, because undoubtedly the second surgery exacerbated the problems Mrs Holland has had to endure, while on their evidence a fusion would have avoided many of those problems. 3. On all of the evidence I have discussed, I consider that the adjustment required would involve Mrs Holland receiving some 70% of the damages which would be awarded to her, had she established her case. Non-economic Loss 1. Had I concluded otherwise, I would have accepted the Council's case that if a causal connection between Mrs Holland's fall and her subsequent back problems was established, that her non-economic loss would be assessed at no more than 33%, given what the evidence establishes about the consequences of her first surgery, which I have earlier discussed. Economic Loss 1. Mrs Holland has not worked for many years and has since 2008 been her mother's legal carer. She is in ongoing receipt of Centrelink benefits for the performance of that role, on the basis that she provides her mother with constant care. There is no issue that Mrs Holland's mother has a life expectancy of some 17 years, by which time Mrs Holland would be aged 65. 2. On the expert evidence even after the first surgery, Mrs Holland was unlikely to have been able to resume full time employment. Further, in cross-examination she agreed that up until the present time, she could not have returned to work, because she was providing her mother's care and that would continue, whilever she remained her carer, as was her intention. 3. Mrs Holland's evidence as to the care which she had provided her mother since becoming her carer, despite her back problems and that which she proposes to continue providing, when considered with her various evidence about her aspirations about returning to work, when her youngest child was age five, were contradictory. As was her evidence that despite the care she was able to provide her mother, she was not able to perform any paid work, because of the ongoing pain she suffered, for which she continued to take prescribed medication at the significant dosages which she described, which meant that she had to be careful about driving. 4. Given her prior back problems, even without the fall Mrs Holland is likely to have suffered a recurrence, particularly given the innocuous circumstances in which her initial injury occurred. In the result, there can be no certainty that but for the fall in June 2011, she would ever have returned to work. 5. Mrs Holland is accordingly not entitled to damages either for past or future economic loss. Domestic assistance 1. The Council accepted that Dr Bentivolgio's opinion that Mrs Holland did not require assistance, because she was her mother's carer, may not be sustainable, given his concession in oral evidence. It relied on Dr Giblin's view that she required only a small amount of domestic assistance of an hour or two each fortnight and what was discussed in Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [91] - [105], as to the requirements of intensity and longevity provided in s 15(3) of the Civil Liability Act. 2. The section requires that damages for gratuitous attendant care services may not be awarded unless the services are provided (or to be provided) for at least six hours per week, and for a period of at least six consecutive months. The onus lay on Mrs Holland to establish that the fall required that she be provided with six hours or more domestic assistance per week, in order to qualify for an award of damages for such assistance prior to trial 3. On the evidence, since after the first surgery heavy cleaning has been done fortnightly by a cleaner. In her statement Mrs Holland said before her fall she was responsible for all household duties and that she did a little bit of gardening, which she could not now manage and that she was also unable to do heavier tasks such as vacuuming, cleaning bathrooms, sweeping, making beds and spring cleaning, such as the windows. 4. Mr Holland gave evidence of undertaking domestic tasks which are not only for Mrs Holland's benefit, but also his and their children's. In chief he said that prior to the fall Mrs Holland was getting back to light duties and bits and pieces of cleaning, without anything strenuous. She was not doing heavy lifting. After the fall she could not do much and he had to do household duties, including cleaning and washing. She was then trying to do some things, including cooking and he and her mother also did some cooking. He and the children did the shopping, although Mrs Holland then accompanied them. Mr Holland estimated that he was then doing an hour a bit a day, when he got home from work. 5. Mr Holland also described still having to help Mrs Holland shower and dress and pull her up off the bed, when she was stiff, so that she could walk to the bathroom. 6. Mr Holland agreed in cross-examination that even before Mrs Holland developed back problems in 2009, he did some of the domestic tasks, such as throwing his dirty clothing into the washing machine and cleaning up, if he made a mess. He also agreed that he did not now need to help Mrs Holland shower every day and that she helped bathe her mother and was able to drive. 7. Mrs Holland's evidence in cross-examination established that even after the second surgery she remains capable of managing significant aspects of her mother's care, as well as domestic activities such as driving her children to school, shopping, cooking and driving her and her mother to appointments. Her explanation for why she cannot undertake vacuuming, for example, was because that would require her to undertake that task at different times, in a way that she would not prefer to clean her house. That Mrs Holland prefers to clean her whole house, at once does not establish a complete incapacity to perform such tasks. 8. Mr Holland now undertakes an hour and a bit a day on domestic tasks, but some of those are ones which Mrs Holland can manage, such as shopping. 9. In the result, it cannot be concluded that as the result of the fall, Mrs Holland still requires gratuitous assistance exceeding six hours per week. It may be accepted that for some time after the second surgery, that she did. I would assess this at no more than six months. Treatment expenses 1. As the Council accepted, had Mrs Holland's case succeeded, there would be an allowance for the spinal fusion which she requires, but there are various estimates as to cost. 2. On the evidence that is likely to have been surgery which she would have required in any event. On Dr Giblin's evidence it would have been preferable to perform such surgery, rather than the second surgery which Mrs Holland underwent. Nevertheless, given the Council's concession, an allowance for the cost of that surgery would have to be made. 3. There is little other evidence as to any other medical expenses for which provision should be made, but that may have been a matter about which the parties agreed. Costs 1. The usual order as to costs is that costs as agreed or assessed follow the event. In this case, that is an order in favour of the Council. In the event that the parties wish to be heard on costs, they should approach within 14 days.. Orders 1. For these reasons there must be judgment for the Council. Accordingly I order that Mrs Holland's claim be dismissed. If the parties do not approach to be heard on costs within 14 days, the usual costs order will be made in favour of the Council. ********** 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: 24 August 2017