Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hawkesbury Sports Council v Martin [2019] NSWCA 76 Hearing dates: 18 June 2018 Date of orders: 16 April 2019 Decision date: 16 April 2019 Before: Meagher JA and Emmett AJA at [1]; Simpson AJA at [44] Decision: 1. Appeal allowed. 2. Set aside judgment and orders of the District Court made on 1 July 2017 and in lieu thereof order that the proceedings be dismissed. 3. The respondent pay the appellants' costs at first instance and on appeal, and to have a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the costs at first instance if eligible. 4. Cross appeal dismissed. Catchwords: TORTS – negligence – breach of duty – where risk of harm obvious – where not established that risk not insignificant – whether content of duty required precaution of removing steel cable EVIDENCE – opinion evidence – expert opinion – where expert "civil engineer" and "building consultant" – where opinion as to human visual perception – whether expert has "specialised knowledge" – whether opinion wholly or substantially based on such specialised knowledge EVIDENCE – photographic evidence – where witness testifies photographs accurately show accident scene, including conditions of light and shade at time of accident – whether photographs evidence of light and shade conditions as affected visibility of objects shown DAMAGES – gratuitous domestic assistance – where provider of assistance already in receipt of carer's pension – adequacy of reasons explaining quantification – no question of principle Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B-5C, 5F-H, 5R, 15-16, 42 District Court Act 1973 (NSW), s 127 Evidence Act 1995 (NSW), s 79 Local Government Act 1993 (NSW), Ch 6 Pts 1, 2 and Ch 12 Pts 1, 3, ss 24, 35, 355, 370 Social Security Act 1999 (Cth), s 198 Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), s 75A Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Blacktown City Council v Hocking [2008] NSWCA 144; (2008) Aust Torts Rep 81-956 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 Gordon v Truong; Truong v Gordon [2014] NSWCA 97 Makita (Australia) Pty Ltd v Sprowles (2001) 51 NSWLR 705; [2001] NSWCA 305 Miller v Galderisi [2009] NSWCA 353 Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Thomson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Velevksi v R [2002] HCA 4; (2002) 187 ALR 233 Category: Principal judgment Parties: Hawkesbury Sports Council Incorporated (First Appellant); Hawkesbury City Council (Second Appellant); Apaula Anna Losa Martin (Respondent) Representation: Counsel: J Sexton SC / D Kelly (Appellants) H Marshall SC / A McSpedden (Respondent) Solicitors: Gillis Delaney Lawyers (Appellants) Keen Lawyers (Respondent) File Number(s): 2017/243087 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 21 July 2017 Before: Delaney ADCJ File Number(s): 2015/178391 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] headnote [This headnote is not to be read as part of the judgment] The respondent tripped and fell on a steel cable strung between low timber posts forming a fence separating a car-park area from playing fields. Immediately behind that fence, on the playing fields side, was a row of large concrete blocks, spaced about 1.45 m apart. The park was community land vested in the Hawkesbury City Council and maintained and managed by the Hawkesbury Sports Council (the Councils). The respondent successfully claimed damages against the Councils for negligence in the District Court and was awarded $394,415, that amount including an allowance of 30% for contributory negligence. The Councils appealed against the findings of liability and quantum. The respondent cross-appealed against the finding of contributory negligence. The issues in the appeal were: (i) Whether the primary judge erred in admitting opinion evidence not wholly or substantially based on specialised knowledge based on training, study or experience. (ii) Whether the primary judge erred in finding that there was a risk against which the appellants were required to take precautions; and in finding that the appellants were negligent in failing to do so. (iii) Whether the primary judge erred in awarding damages for domestic assistance where the provider of that assistance was in receipt of a carer pension which required him to be available to care for the respondent full-time; and whether there was a failure to give adequate reasons as to the quantification of damages. Because the appeal against the Councils' liability was upheld, issue (iii) and the respondent's cross appeal against the finding of contributory negligence did not arise. However Meagher JA and Emmett AJA agreed with Simpson AJA's resolution of the damages issues. The Court allowed the Councils' appeal (Meagher JA and Emmett AJA, Simpson AJA dissenting): As to issue (i): Per Meagher JA and Emmett AJA: 1. The evidence did not establish that Mr Grieve's opinions as to matters of visual perception and vision science were based on "specialised knowledge" in turn based on his training, study or experience, either as a "civil engineer" or a "building consultant": [27]-[28], [31]-[33]. Makita (Australia) Pty Ltd v Sprowles (2001) 51 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 applied. Per Simpson AJA (dissenting): 2. Mr Grieve's qualifications as a civil engineer and building consultant, and experience in structural design and as a construction manager, provided a sufficient basis for inferring his expertise to express an opinion as to risks that pedestrians, entrants or users of a structure might fail to observe: [118]. As to issue (ii): Per Meagher JA and Emmett AJA: 3. The evidence established that the risk of someone tripping and falling on the steel cable was obvious and for that reason that risk of harm was not established to be "not insignificant". A reasonable person in the Councils' position would not have taken the precaution of removing the cable notwithstanding that the burden of doing so may not have been onerous and that the social utility of retaining the cable was questionable: [37]-[41]. Thomson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 applied. Per Simpson AJA (dissenting): 4. The evidence of Mr Grieve and Professor Alais established that the juxtaposition of the original cable fence and the concrete blocks constituted a risk of harm that was foreseeable and not insignificant. Therefore, in circumstances where taking precautions was not burdensome, the Councils' failure to do so was negligent: [140]-[142]. As to issue (iii): Per Simpson AJA, Meagher JA and Emmett AJA agreeing: 5. It was appropriate to make an allowance representing the escalation in the respondent's care needs following the accident brought about by her injuries: [175]. Miller v Galderisi [2009] NSWCA 353; Gordon v Truong; Truong v Gordon [2014] NSWCA 97 distinguished. 6. The inadequacy of the reasoning in explaining the calculation of damages required that those damages be reassessed in accordance with the evidence: [181]. Judgment MEAGHER JA and EMMETT AJA: Introduction 1. We have had the benefit of reading in draft the judgment of Simpson AJA. We have come to a different conclusion to her Honour on the issue of liability and consider that the appeal of the Hawkesbury Sports Council and Hawkesbury City Council should be allowed. Had we determined otherwise we would, like Simpson AJA, have upheld their appeal against the quantum of damages awarded to the respondent for past and future gratuitous domestic assistance for the reasons her Honour gives. Our conclusion on liability means that the respondent's cross appeal against the finding of contributory negligence does not arise. In what follows we have assumed that the reader has some familiarity with the factual background to this litigation as described by Simpson AJA. We have nevertheless dealt with the evidence in some detail so as to make clear where our consideration departs from that of her Honour. 2. On 4 August 2012, the respondent tripped and fell on a steel cable strung between low timber posts which formed a cable fence separating a car-parking area from playing fields at Deerubbin Park in Windsor. Immediately behind that cable fence and closer to the playing fields was a row of large white or light grey concrete blocks extending over a distance of about 40 m. As Simpson AJA observes, the respondent's case was not that the post and cable fence was itself dangerous, but that when the row of concrete blocks was later added, they had the likely effect of distracting the attention of someone seeking to gain direct access from the car park to the playing fields from the continuing presence of the steel cable. Specifically, it was said that the positioning of the concrete blocks created the impression that access could be gained to the playing field through one or more of the spaces between them, and for someone doing so the shading from overhead trees and the similarity between the colour of the cable and the brown earth and gravel in shade made it difficult visually to detect the former. 3. The primary judge (Delaney ADCJ) accepted the respondent's case, which was supported by the expert evidence of Mr Grieve, a building consultant and civil engineer. The respondent's award of damages of $394,415 included a component for past and future gratuitous domestic assistance provided by her husband. That aspect of the damages award is the subject of grounds 3 and 4 of appeal. The liability grounds of appeal 1. The remaining two grounds of appeal challenge the finding of liability. Ground 1 is that the primary judge erred in finding that the installation of the concrete blocks with the retention of the cable created a risk of injury by tripping, against which the appellants were required to take precautions; and in holding that the appellants were negligent in failing to remove that cable. The second ground is that the primary judge erred in admitting parts of Mr Grieve's reports to which objection was taken on the basis that he was not shown to be qualified to give that opinion evidence. Although the primary judge indicated that he would give reasons for admitting that evidence, he did not subsequently do so. 2. Ground 2 should be dealt with first, the primary judge having accepted and relied upon those parts of Mr Grieve's evidence to which objection was taken. Before doing so, we propose to summarise the relevant evidence and findings of the primary judge, particularly with respect to the expert evidence. The cable fence and concrete blocks 1. It is convenient to start with the structure with which this claim is concerned. A "couple" of weeks after the accident occurred, Mr Martin returned to the accident scene at around the same time as the accident and took photographs of the concrete blocks and cable fence in the area where his wife had fallen. His evidence was that in taking these photographs he was seeking to make sure that he captured "similar conditions [to those] as at the time the fall had occurred" and to "get [replicate] as close as possible, the shading that existed". A blown-up version of a photograph taken by Mr Martin at that time became Exhibit D. A copy of that photograph, which appears below, was provided to Mr Grieve. The opening through which the respondent sought to gain access to the playing fields is the space between the second and third concrete blocks, counting from the left. That is apparent from the unusual carved-out slot at the top of the fourth pole from the left, which also appears in the photograph which became Exhibit 4, the second photograph below. 2. Exhibit 4 is a blown-up version of the photograph showing the particular space through which the respondent sought to gain access to the playing fields. According to Mr Martin that photograph showed "the appearance of the cable" on the day he went back and took the photographs intended to replicate the conditions at the time of the accident. That photograph appears below. 3. The respondent was walking towards the space pictured above, according to her evidence perhaps at a very slight angle to her left. The pole with the carved-out slot is on the right. 4. In his evidence in chief Mr Martin described the area where his wife fell as being "in shade". Other photographic evidence showed that about one and a half to two car lengths back from the concrete blocks and cable fence there was a row of three or four well-spaced and mature trees, which depending on the time of day and season, cast shadows across the line of that low cable fence, which ran in a north-easterly direction. 5. The post and cable fence was originally installed in the 1990s to deter motor vehicles from entering the sports ground areas. The round posts were about 600 mm high, some slightly higher, some slightly lower; and between 145 mm and 170 mm in diameter. The span between each set of timber posts was slightly more than two metres, and allowing for some slack, in the middle of each space the cable stood about 430 mm above the ground on its high side, being around or below knee height. 6. As the primary judge observed at Judgment [51], no "evidence was led of any previous injury involving the cable". As to the position in relation to the post and cable fence before November 2011, the primary judge observed at Judgment [57], consistently with the respondent's case: … there was no requirement on the [appellants] in the circumstances of their responsibilities to warn anyone of the existence of the cables. This was not a precaution that was reasonably required. The photographs suggested … so far as photographs go, that the cable could be seen. 1. In November 2011 the row of concrete blocks was placed on the sports fields side of the existing cable fence running the length of the indented car park area, a distance of about 40 m. Each block was 1200 mm long, 600 mm wide and 600 mm in height and the blocks were spaced approximately 1.45 m apart. Mr Grieve measured the distance from the back of the concrete blocks (the side facing the car park) to the centre of the timber posts as being between 110 mm to 130 mm. The circumstances of the accident 1. On the morning of the accident Ms Martin was in the family car being driven by her husband, with their twelve year-old son and his friend in the back seat. It was a sunny day and they arrived at the park at about 10am. Mr Martin parked the car facing the playing fields about a metre back from the concrete blocks and cable fence. There were cars parked on either side. He and the two boys got out of the car and "went onto the oval". The evidence does not suggest that they walked around that "barrier" which did not extend beyond the rectangular shaped dirt, gravel and grass car park. Rather, each negotiated the concrete blocks and cable fence. Mr Martin accepted without hesitation that in doing so he must have "stepped across" the top of the cable. He also accepted that this, apparently his first encounter with the combination of the concrete blocks and cable fence, did not cause him to think about giving his wife some warning as to being careful when clearing the fence. It should be mentioned at this point that in 2010 the respondent had a brain aneurism which resulted in her having cognitive difficulties. However she was still physically active and capable of household tasks (Judgment [3]) and it was not claimed before the primary judge or in this Court that those cognitive difficulties played any part in the accident. 2. Ms Martin then followed. Having closed the front passenger door she turned to her left and took three or four steps towards a space between the concrete blocks which was in front of the car. As she described it: "I saw the block, and then I start walking towards, as I was taking two steps – and on the third one something caught my leg." That evidence was consistent with her instructions to her solicitors as at September 2014 when they recorded in their letter retaining Mr Grieve that "she first saw some large concrete boulders and went to walk in-between the gap of the concrete boulders which were in front of her car. She took about three steps when she suddenly fell forward." In cross examination the respondent maintained that she did not ever see the "cement blocks" before she fell. Whilst accepting her evidence that she did not see the cable, the primary judge did not make an express finding as to whether she had seen the concrete blocks. However a finding that she had seen and focussed on those blocks would have been consistent with the evidence of Mr Grieve (see Judgment [58]); and her case in this Court was that she had seen the concrete blocks and the space between them. 3. As a result of "catching" her leg the respondent fell over the top of the cable landing on her left side. Hearing her scream, Mr Martin went to her assistance as she lay on the ground, with the cable behind her. The respondent's evidence, which the primary judge accepted (Judgment [32], [47]), was that she never saw the cable before she fell. She accepted however that after the fall she could see the "grey cable" behind her. Mr Martin described that cable, viewed from the position where his wife had fallen, as "blending" in with the ground. In dealing with the issue of contributory negligence the primary judge found that had the respondent been keeping a "proper lookout" as she approached the space between the blocks "she would have seen the cable whether in shade or not" (Judgment [60]). Those findings are challenged in the cross appeal. 4. After the respondent had recovered somewhat, she stayed and watched her son's game from the car. On returning home the respondent was taken by ambulance to Nepean Hospital where the bruising, swelling and deformity in the region of her left ankle was treated. She remained in hospital overnight and the following morning was diagnosed with an acute compartment syndrome in her lower left leg. The respondent underwent a left lateral fasciotomy and was hospitalised for two and a half weeks. She has been left with an obvious visual deformity to the lower part of her left leg, pain in the left calf on standing and recurrent dryness and eczema, especially in the region of her skin graft. 5. Following the incident, Mr Martin spoke to Ms Neal, Administrator of the Hawkesbury Sports Council. Deerubbin Park is community land vested in the Hawkesbury City Council and the Hawkesbury Sports Council is its appointed delegate to undertake the care, control, management and development of sporting facilities in its local government area: Local Government Act 1993 (NSW), Ch 6 Pts 1, 2 and Ch 12 Pts 1, 3 esp. ss 24, 35, 355, 370. 6. On 21 August 2012, two weeks after the accident Mr Martin sent an email to Ms Neal which included the following: … As always we arrived early to the game at 10am, we all got out of the car and headed towards the [amenities block], as we did this my wife has fallen over the cable between the parking area and the playing field... In this fall she hurt her left leg and was in a little bit of pain, but she said she would be ok to watch her [son's] game from the front of the car. While she [was] watching the game she did notice a few young children, about 2-3 playing and surfing on the wire falling and nearly hitting their heads on concrete blocks… [the remainder of this paragraph addresses the injuries suffered by Ms Martin] In telling you all this I believe that this cable [should] be removed and a new fence erected to stop bikes and cars. At Mittigar Reserve they have a metal rail fence around the back carpark, this is at waist height and would be safer than the cable and blocks which are [there] at the moment. I believe it is only a matter of time before a child is seriously injured or worse killed by this cable. 1. The photographic evidence showed that the "amenities block" referred to in this email was to the east (and left) of the area where the car was parked. In cross examination concerning the contents of this email, Mr Martin answered "yes" to the question: "if you thought that was an issue with the cable - that is it was difficult to see - you would have said so, correct?". 2. Ms Neal had been Administrator of the Hawkesbury Sports Council since 2006. She was the person to whom any problems arising at sports grounds with which the Sports Council was associated were reported. She gave evidence that in the period from late 2011 when the concrete blocks were put in place until August 2012, the community and other groups using Deerubbin Park on a weekly basis included: Hawkesbury Valley Rugby Club use it Monday, Tuesday, Wednesday, Thursday, Friday, Saturday, Sunday – so they use it seven days a week. Macquarie Towns All Breed Dog Training Club use it Wednesday evenings from 7 until 9. We have a triathlon club that use it one Sunday a month. In 2012, we had a local high school use it for school sport, every Wednesday, and then we had casual hire, plus the general public. 1. Her evidence was that in the period from March until August 2012 there were in the order of 1500 people a week from the Rugby Club who used the park. She did not estimate the number of other people who used the park during that time. However they included a group of 30 "mostly elderly people" who were members of a local dog training group and the local high school that trained there once a week for their school sport. This evidence has its obvious limitations. It does not identify how many of the people who used the park actually obtained access from the car park by stepping over the cable fence rather than walking around it. Nor does it take account of the fact that someone who had done so may have stumbled, or tripped and fallen but not in a way that caused an injury thought to justify the making of a complaint. Nevertheless, it remains consistent with the appellants' case that the presence of the cable was obvious, making remote the likelihood that someone taking care for their own safety would fail to observe it. The primary judge's treatment of the expert evidence 1. Three experts gave evidence, Mr Grieve and Professor Alais in the respondent's case and Professor Coyle in the appellants' case. Only Professor Coyle was cross examined, and by telephone. Professors Alais and Coyle gave evidence directed to the respondent's capacity to see and perceive the presence of the steel cable as she walked from the car towards the concrete blocks and cable fence. Professor Alais described himself as a "professor of experimental psychology" and an "international expert in visual perception and vision science". Professor Coyle described himself as a "psychologist, human factors engineer and psycho-pharmacologist". As between these witnesses, the primary judge preferred the evidence of Professor Alais to that of Professor Coyle. His Honour's decision to do so (Judgment [45]) is not the subject of appeal and no reliance is placed on Professor Coyle's evidence in support of the challenge made to the primary judge's findings by ground 1. Accordingly Professor Coyle's evidence, including his sometimes combative responses to the reports of each of the other experts, may be put to one side. It remains necessary to consider the evidence of Professor Alais and Mr Grieve. The latter evidence was objected to in part, the former was not. 2. There are at least two difficulties with Professor Alais' opinion evidence. The first concerns the assumption he makes as to the "viewing conditions" facing the respondent as she walked towards the concrete blocks. The second concerns the assumption that he makes as to where the respondent, or someone in her position and taking reasonable care for their safety, was likely to be looking as they approached those blocks. Professor Alais considered that the cable would have been "extremely difficult" for the respondent to perceive because it was "low lying" and remained "well into her peripheral vision", reasoning as follows. Assuming the respondent's eye height to be 1.44 m, and that she was looking straight ahead, rather than downwards from the horizontal, as she walked three metres or so towards the space between the concrete blocks, the cable (which was about two thirds of the height of the concrete blocks) would have been at an angle of 25 degrees from the centre of her visual field. The visual resolution of the cable at this degree of eccentricity was approximately ten times worse than it would have been if the cable was in her central vision; meaning that it would have been blurred and become "even blurrier" as she approached the concrete blocks. Professor Alais' treatment of the respondent's "viewing conditions" assumes that the only object to be seen and recognised in her peripheral or central vision was the steel cable. No consideration is given to the presence of the concrete blocks or timber posts or to the cable as it would have appeared against the face of the concrete blocks on either side of the space towards which the respondent was walking. The assumption that the respondent's eyes remained fixed and looking "directly ahead" does not accord with her evidence, and case, that she saw the concrete blocks and gap between them. Nor does it address the position more generally, that someone walking and taking reasonable care for their safety would look at what was in front of them, particularly where they had to negotiate a way through the row of concrete blocks. 3. It is not necessary to take this analysis further, or to consider the extent to which the assumptions made by Professor Alais were consistent with that underlying Mr Grieve's opinion that the eyes of a pedestrian approaching the line of concrete blocks would be focussed on the "ground ahead between and in the region of the blocks". If that was the position the "visual cues" described above – the concrete blocks, timber posts and cable against the background of those blocks – would all have been in or close to that pedestrian's field of central vision. Ultimately the primary judge did not rely on Professor Alais' evidence, having decided to put "vision [evidence] generally aside" (Judgment [58]). By her Notice of Contention (para (d)) the respondent contends that the primary judge should have found in reliance on the evidence of Professor Alais that "it would have been exceedingly difficult in the circumstances for the Respondent to have perceived the cable". The primary judge must be taken to have held otherwise, concluding that had the respondent been looking in the direction in which she was walking she "would have seen the cable whether in shade or not" (Judgment [60]). In our view, that finding is not contradicted by Professor Alais' evidence, because of the assumptions on which it proceeds. Those assumptions are not consistent with the respondent's case that "she saw the concrete blocks, saw the gap between them and was walking as intended towards the field". 4. The primary judge accepted Mr Grieve's evidence, the essence of which was that the combined presence of the concrete blocks and cable fence created a risk of injury to people seeking to get from one side of the "barrier" which they represented to the other where, in Mr Grieve's opinion, "the cable was a similar colour to the shaded ground and the pedestrian's attention was attracted by the bulk and size of the concrete blocks". Having referred at Judgment [58] to Mr Grieve's evidence that the position of the blocks near the cable "could take the focus of park entrants away from the cables as they approached the blocks", the primary judge's critical reasoning continued: …the photographs tendered show that the proximity of the cable to the blocks was important in this case. Persons approaching the blocks from the car park would have focussed attention on walking through the gap in the blocks, and this could make the cable a hazard as less attention might be paid to its presence. As the area where the plaintiffs husband parked was designated as a car park, by the presence of other cars, I find that the installation of the blocks but with the retention of the cables created a risk of injury by tripping of which the defendants ought to have known and against which they were required to take precautions. In the area of the car park, those precautions were the removal of the cable in front of the car park and between it and the concrete blocks. I find that the defendants should have removed the cable from in front of the blocks after the blocks were installed as a precaution to avoid foreseeable risk of injury to those persons leaving the car park to walk onto the park. The [defendants'] failure to take this reasonable precaution was a breach of duty to persons in the position of the plaintiff. (Emphasis added.) 1. Contrary to the appellants' suggestion in argument, we do not read his Honour's earlier observation at Judgment [57] as a finding, for the purposes of Civil Liability Act 2002 (NSW), s 5F, that the risk of injury from tripping or falling on the cable after the concrete blocks had been installed was "obvious" in the sense that it "would have been obvious to a reasonable person" in the respondent's position. In this respect we agree with Simpson AJA that this finding is to be understood as directed to the position before the concrete blocks were installed, his Honour's view being that the condition of the cable fence at that time did not give rise to any duty to warn of the presence of the cable. Admissibility of Mr Grieve's evidence (ground 2) 1. Evidence Act 1995 (NSW), s 79 makes admissible evidence of an opinion which is wholly or substantially based on "specialised knowledge" that, in turn, is based on the witness's training, study or experience. The requirements that must be satisfied before the expert opinion evidence is admissible include (per Heydon J in Makita (Australia) Pty Ltd v Sprowles (2001) 51 NSWLR 705; [2001] NSWCA 305 at [85]): … that there is a field of specialised knowledge… and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience' and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. 1. See also Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 where the plurality emphasised (at [42]) that the requirement that the opinion be based on the witness's specialised knowledge based on training, study or experience is a matter that goes to its admissibility, not its weight. 2. The appellants objected to parts of Mr Grieve's first report and his second report, which was in response to Professor Coyle's first report. The principal parts of the first report that were objected to are extracted by Simpson AJA at [69]-[71]. The parts in the second report dealing with the matters of visual perception objected to are on pages 3 and 4 of that report. The basis for the objection was that it was not established, by those reports or otherwise, that Mr Grieve had "specialised knowledge" by reason of his training, study or experience which permitted him to express an expert opinion about matters of "visual perception"; or that he was doing so based on that specialised knowledge. 3. Mr Grieve expresses an opinion about two matters of visual perception. Each is directed to the likelihood that the existence of the cable could or would be detected and recognised by someone in the respondent's position. The first is that "it would have been difficult for a pedestrian to detect the grey cable against the shaded earth and gravel". As Mr Grieve did not see the cable fence in place at the scene of the accident, his comments as to the colour of the cable, and the effect of any shading on a pedestrian's ability to see the cable, must be taken as made by reference to what may be seen in the photographic evidence, and particularly the photographs taken by Mr Martin after the accident. The second matter on which he expresses an opinion is that the "bulk and size of the concrete blocks tended to attract the attention of the pedestrian and reduced the pedestrian's ability to detect the cable". 4. In his first report Mr Grieve describes himself as a "building consultant, civil engineer and lawyer", and his work history as including that between 1968 and 1990 he was employed initially as a "structural designer", but for the most part as a "construction manager", on projects in Australia and the United Kingdom. His curriculum vitae shows that between 1968 and 1973 he worked as a design engineer on three projects, involving "falsework and formwork" for wharves, "civil engineering and building structures" and "sewerage works". His reports do not identify the field of "specialised knowledge" in which he has expertise by reason of his "training, study or experience" that is applied and relied on to justify his opinion that a pedestrian's view would be attracted by the "bulk and size of the concrete blocks" with the consequence that it was likely that "he/she would not discern the cable". Nor does his report identify any "specialised knowledge" that he may have acquired by reason of his "training, study or experience" as a civil engineer, structural designer or building consultant which provides the basis for that opinion. 5. Whilst matters of visual perception and vision science may be the subject of specialised knowledge, as the reports of Professors Alais and Coyle make clear, it is also the case that human experience and common sense permits laypersons, without the benefit of such "specialised knowledge", to express views based on their own experience and observations as to what someone in the position of the respondent was likely to have seen, assuming that she was looking in the direction in which she was walking. However those observations and that knowledge do not, for that reason alone, form part of the body of "purely specialised knowledge upon which an expert's opinion depends" and which equips the expert to give such an opinion: See the discussion in Velevksi v R [2002] HCA 4; (2002) 187 ALR 233 at [154]-[158]. 6. In our view Mr Grieve's report does not establish that the opinions objected to are based on "specialised knowledge" in turn based on his training, study or experience. Whilst it may be that a civil engineer designing structures may need to consider potential risks that the structures pose to pedestrians, it is not apparent that such consideration would require or impart specialised knowledge with respect to human visual perception of the kind claimed by Professors Alais and Coyle. To conclude otherwise is to speculate about a matter that must be established by the evidence. In our view, the primary judge erred in admitting Mr Grieve's evidence directed to the two matters of visual perception referred to above. Accordingly, ground 2 should be upheld. Error in concluding appellants negligent in failing to remove cable (ground 1) 1. The primary judge's conclusion at Judgment [58] depends on the correctness of his finding that the positioning of the concrete blocks behind the post and cable fence created a risk of injury because pedestrians seeking to negotiate a way through the blocks "would have focussed attention on walking through the gap in the blocks" with the result that "less attention might be paid" to the presence of the cable. The only evidence directly supporting that conclusion was the evidence of Mr Grieve, which we have held was not admissible as expert opinion evidence. As we have already noted, Professor Alais' evidence assumed that a person in the respondent's position would have continued to look directly ahead when walking through that gap rather than, as the primary judge found, "focussed attention on walking through the gap in the blocks". Although part of the evidentiary foundation for that finding is removed by the rejection of Mr Grieve's evidence, the finding itself is not challenged in the respondent's case and is wholly consistent with what human experience indicates someone in the respondent's position would do taking reasonable care for their safety. We also put aside at this point the evidence of Professor Coyle, the appellants not contending that the primary judge erred in not taking that evidence into account. 2. As Simpson AJA observes, the only remaining evidence that reveals the nature of the risk presented by the positioning of the concrete blocks is the photographic evidence. At this point a question arises as to the use which this Court can make of that evidence. The difficulties which often arise in this respect are not in our view present in this case in relation to the photographs taken by Mr Martin. Those difficulties are discussed in Blacktown City Council v Hocking (2008) Aust Torts Rep 81-956; [2008] NSWCA 144 at [7] – [13] (Spigelman CJ), [167] – [171] (Tobias JA) and Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [89] – [96] (Beazley P, Meagher and Leeming JJA agreeing). Those discussions are directed to whether a photograph may be relied on as descriptive of what a witness says it accurately shows (sometimes referred to as "testimonial" or "demonstrative" evidence), or, independently of any witness testimony, as establishing as primary facts the existence and appearance of what it shows (sometimes referred to as "substantive" evidence). 3. In this case, reproductions of the photographs taken by Mr Martin, with the exception of the blown-up version which became Exhibit 4, were tendered in the respondent's case. In relation to all of those photographs the evidence of Mr Martin justifies a finding that what is captured and appears in the photographs not only shows the positioning of the concrete blocks and cable fence as they were at the time the photographs were taken, but also the conditions of light and shade as they affected the visibility of those objects at the time the photographs were taken. Mr Martin's evidence was that those conditions of light and shade were the same or at least similar to those at the time of the accident. Accordingly, here the photographs are evidence of what Mr Martin saw. 4. The questions addressed by the primary judge at Judgment [58] involved an assessment of the possibility of someone tripping on the cable and injuring themselves because they were not aware or conscious of its existence as they sought to negotiate their way between the concrete blocks. In assessing the significance of that risk and what a reasonable person would have done by way of precaution to avoid it, the matters to be considered included the "obviousness of [the] risk, and the remoteness of the likelihood that other people will fail to observe and avoid it": Thomson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 at [35]. In relation to that assessment, the Court observed (at [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. 1. In our view, the evidence does not establish that the risk of harm caused by the positioning of the concrete blocks and the retention of the cable was not insignificant: cf Civil Liability Act 2002 (NSW) s 5B(1)(b). The presence and positioning of the concrete blocks was plain and obvious. And it is not controversial that the focus of a person approaching those concrete blocks from the car park side would initially have been directed to the spaces between them as providing a means of direct access to the sports fields. However one could not focus attention on those spaces without also observing the timber posts and cable immediately in front of the blocks. 2. The positioning of the concrete blocks did not alone enable a decision as to whether there was a gap through which a pedestrian might walk. The spacing of the timber posts did not correspond with that of the concrete blocks, and the timber posts in varying degrees obstructed the gaps between the concrete blocks. The positioning of the posts in turn directed attention to the cable which was clearly visible against the light background of the concrete blocks. What is plain from the photographic evidence is that the positioning of the concrete blocks, posts and cable relative to each other meant that someone using reasonable care for their safety could not attempt to pass through a space between the concrete blocks without also noticing the timber posts and cable. Ms Neal's evidence that there was no complaint of any earlier tripping incident and the absence from Mr Martin's request that the cable be removed of any claim that the cable was difficult to see lend some evidentiary support to that conclusion, but considered alone could not justify it. 3. For these reasons we hold that the risk of someone tripping or falling on the cable was "obvious" within the meaning of Civil Liability Act 2002 (NSW) s 5F and was not such that a reasonable person in the appellants' position would have taken the precaution of removing the cable notwithstanding that the burden of doing so may not have been onerous and that the "social utility" of retaining the cable was questionable. 4. Ground 1 also should be upheld. The Notice of Contention 1. The Notice of Contention argues for additional findings which it is said the primary judge should have made in support of his conclusion that the appellants were negligent. Nine findings, identified by the letters (a) to (i) are contended for. The primary judge made, or proceeded upon a basis consistent with his having made, findings in terms of (a), (b), (c) and (f). His Honour should not have made finding (d) concerning Professor Alais for the reasons we have given above. Finding (e) is dealt with by our conclusion that the risk was "obvious" within s 5F, notwithstanding that the primary judge did not make a finding to that effect. The primary judge's finding that there was no evidence of any prior complaints was justified and is not shown to have been wrong: cf finding (g) as contended for. The finding in terms of (h) is dealt with in our reasons for concluding that ground 1 is made out. Finally, finding (i) as sought is not material in view of the fact that the primary judge did not rely on Professor Coyle's evidence, and that evidence is not taken into account in support of our conclusion concerning ground 1. Conclusion 1. The appeal should be allowed. The verdict and orders in favour of the respondent as plaintiff in the District Court should be set aside. Instead there should be a verdict for the appellants as defendants in the District Court and the respondent should be ordered to pay their costs of those proceedings. The respondent should also pay the costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW) if she is otherwise eligible. SIMPSON AJA: 1. On 4 August 2012 the respondent, Ms Apaula Anna Losa Martin, suffered a severe injury to her left leg when walking in Deerubbin Park in Windsor, NSW. She successfully brought proceedings in the District Court of NSW in negligence against the respondents, Hawkesbury Sports Council Incorporated ("the Sports Council") and the Hawkesbury City Council ("the City Council") (collectively "the Councils") and was awarded $394,415.38 in damages, after reduction by 30% of what would otherwise have been awarded by reason of a finding that she was contributorily negligent: Apaula Anna Losa Martin v Hawkesbury City Council & Anor (District Court of NSW, 21 July 2017, unrep). The Councils were ordered to pay Ms Martin's costs as assessed or agreed. 2. In a separate judgment, an application by Ms Martin that part of the costs be assessed on an indemnity basis was refused (4 September 2017). 3. Pursuant to s 127(3) of the District Court Act 1973 (NSW), the Councils now appeal against the finding of negligence and against one aspect of the quantification of damages. Ms Martin cross-appeals against the finding of contributory negligence. She has expressly abandoned a cross-appeal in relation to one aspect of the quantification of damages, and has addressed no submissions to a cross-appeal against the refusal to order that costs be assessed on an indemnity basis. She has filed a Notice of Contention, asserting that the decision should be affirmed on grounds other than those relied on by the primary judge. 4. As the appeal is, pursuant to s 75A of the Supreme Court Act 1970 (NSW), a rehearing, and this Court has the powers and duties of the court from which the appeal is brought, including the power to draw inferences and make findings of fact, and make any finding or assessment, give any judgment, or make any order which ought to have been made or which the nature of the case requires (and it will be necessary to exercise that power), it is necessary to set out, in some detail, the factual basis of the claim, and the evidence adduced in support of, and in opposition to, the claim. The area of factual dispute is relatively narrow: the issues at trial and on appeal concern the inferences that should be drawn from the established facts, specifically whether they demonstrate that either (or both) of the Councils failed to take reasonable care for the safety of Ms Martin. Of particular importance in the resolution of this issue is expert evidence adduced by the parties. 5. It is convenient to address first the issues concerning the liability of the Councils and contributory negligence, before moving to questions of damages. LIABILITY The relevant legislation 1. Ms Martin's claim was governed by the Civil Liability Act 2002. The relevant provisions are: "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." "5F Meaning of 'obvious risk' (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable." "5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk." "5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection." "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." The relevant facts 1. Ms Martin was born in Samoa in 1966. She has lived in Australia since 1989. She is married to Ian Martin, and the couple have two children, born in 2000 and 2001. Since about 2010 Mr Martin has been in receipt of a carer payment under the Social Security Act 1999 (Cth), as a result of a disability suffered by Ms Martin following a brain aneurism and subdural haemorrhage in 2010. 2. Deerubbin Park is a large park in the city of Windsor. It is owned by the City Council and maintained and managed by the Sports Council. It is regularly used by a variety of local sporting and recreational groups. Its facilities include three full sized rugby union fields. One area is used for car parking. 3. Prior to November 2011, the Sports Council was experiencing problems with unauthorised use of the park, extending to drug dealing. At that time there was a timber fence apparently (the evidence was not clear) marking off the car parking area from the playing fields. Among the problems experienced was some vandalism of the fence which was described in the evidence as constructed of "wooden bollard posts" but which appears, from photographs in evidence, to have been constructed of short posts or poles. Galvanised steel cable, about 22 mm in diameter was threaded through the posts. There were in evidence photographs that clearly depict the fence. The photographs also show that there are some trees in the vicinity, and that, at least at certain times of the day, the trees cast shadow over the fence. 4. The solution to the problems devised by the Sports Council was the installation, in November 2011, of concrete blocks placed at intervals immediately adjacent and parallel to the fence. Photographs in evidence suggest that these were somewhat randomly placed, some directly in front of the fence posts, and some in front of the spaces between the posts. The original fence, made of fence posts and steel cable, remained in place. 5. On 4 August 2012, a fine sunny day, Ms Martin, with her husband, her son Stephen then aged 12, and a friend of Stephen's, went to Deerubbin Park, apparently for the purpose of watching Stephen play in a football match. Mr Martin drove the family car to within about a metre of the fence, and parked, with the nose of the vehicle towards the fence. He and the two boys alighted from the car and walked towards the playing fields. Ms Martin began to follow them, a little way behind. She saw the concrete blocks and walked towards the gap between two of them. She did not see the steel cable. At that point the steel cable (which was 22mm in diameter) was, at its lowest point, 415 mm from the ground. She felt "something [catch her] leg" and fell onto the left side of her body. She suffered a severe injury to the left leg. She was in pain but remained at the park until the end of the match. When she arrived home, Mr Martin examined her leg and called an ambulance that took her to the Nepean Hospital, where she underwent quite extensive surgery. 6. As a result of a submission made by Mr Martin shortly after his wife's accident, the City Council made arrangements to remove the cable. 7. Ms Martin commenced proceedings in the District Court, naming both Councils as defendants. The claim was governed by the Civil Liability Act 2002 (NSW). 8. Ms Martin pleaded, in terms of the Civil Liability Act, that each Council was negligent. 9. She particularised the negligence as: "(a) Failure to remove the Cable. (b) Alternatively to removing the Cable, failure to take measures to make the Cable visible to pedestrians prior to contact with it such as by painting it a bright colour in sharp contrast to its background. (c) Alternatively to removing the Cable, failure to erect warning signs warning of the existence of the Cable. (d) Purchasing additional blocks so that the gap between the blocks was smaller and removing any need for the Cable." 1. Ms Martin claimed damages under a variety of heads, only one of which is significant for the purposes of this appeal. That was a claim in relation to domestic and other services provided to her gratuitously by her husband. 2. The Councils filed a common defence. They denied negligence. They pleaded in terms of s 5F of the Civil Liability Act that the risk of harm was an obvious risk of which Ms Martin was aware (see s 5G), and that they were not under a duty of care to warn her of the risk. 3. They relied on s 42 of the Civil Liability Act, which states principles "concerning resources, responsibilities etc of public or other authorities" (this defence was subsequently abandoned). 4. Finally, the Councils asserted that, by her own negligence, Ms Martin contributed to her injury. The proceedings in the District Court 1. In the circumstances, it was necessary that Ms Martin establish, pursuant to s 5B of the Civil Liability Act: - that there was a foreseeable risk of harm to her if the Councils (or either of them) failed to take precautions of the kind particularised as negligence; - that that risk was not insignificant; and - that, in the circumstances, a reasonable person in the position of the Councils would have taken those precautions. The issues in the District Court 1. As the claim was litigated, the issues were: - whether Ms Martin had established the three components of s 5B of the Civil Liability Act, that is, that there was a foreseeable risk of harm created by the manner in which the Councils had constructed the fence, and allowed it to remain in place, including, specifically, the steel cable and the concrete blocks; whether that risk was "not insignificant"; and whether, in the circumstances, a reasonable person in the position of the Councils would have taken those precautions; - whether the risk of harm was an "obvious risk" as defined in s 5F of the Civil Liability Act; - if Ms Martin succeeded in establishing negligence against either Council or both, the quantum of damages to which she was entitled; - whether, on the assumption that Ms Martin succeeded in establishing negligence against either Council or both, she had, by her own negligence, contributed to her injury, and, if so, the degree to which she was liable. 1. In the District Court, both Mr and Ms Martin gave oral evidence. On behalf of the Councils, Ms Anne Neal, who was the administrator of the Sports Council, also gave evidence. Relevantly for present purposes, Ms Neal gave evidence that, prior to Ms Martin's injury, and since the installation of the concrete blocks, she had received no reports about "any issue" in relation to the fence. 2. To a significant degree, determination of the principal issues depended on expert evidence. Expert evidence. 1. Both parties (given their joint position, it is convenient to treat the Councils as a single party) qualified experts for the purpose of expressing opinions on certain aspects of the matters in dispute. All reports were, of course, exchanged prior to the hearing in the District Court. The course of the interchange of expert opinions revealed something of an unfortunate confrontational approach on the part of at least one of the experts, and gave rise to a fierce, hostile and somewhat personal debate. It is convenient at this stage, to trace the competing positions adopted by parties through their experts. 2. Ms Martin first relied on a report, dated 29 December 2014, provided by Mr Anthony Grieve, who held qualifications as a building contractor, a civil engineer and a lawyer. Mr Grieve's work history included employment as a structural designer and construction manager on projects in Australia and the United Kingdom. He visited the site on two occasions in October 2014, in fine weather. He annexed to his report a series of photographs presumably taken on one of those occasions. Mr Grieve was asked to consider five issues, being: "(i) Would I consider the risk of harm to cause injury existed by leaving the cabling in place? (ii) Was that risk of foreseeable [sic]? (iii) Was that risk not insignificant? (iv) If that risk was foreseeable and not insignificant, what action should have been taken in respect of the steel cabling? (v) Would that action have prevented the risk of injury to our client?" It was Mr Grieve who determined the height from ground of the cabling, and provided measurements that were not in dispute. 1. His report included the following: "Delineation A pedestrian's view approaching the line of blocks, timber posts and cable would be attracted by the bulk and size of the concrete blocks. The cable was grey and was similar to the shaded brown earth and gravel and shaded grass in the opening zone between and adjacent to the two blocks. As the pedestrian approached the barrier the eye would be focussed on the ground ahead between and in the region of the blocks rather than trying to specifically detect the cable and it was likely that he/she would not discern the cable." Liability Either Hawkesbury City Council or Hawkesbury Sports Council were responsible for the design and construction of the line of blocks, timber posts and steel cable forming the barrier to the playing area. In my opinion, it was essential to remove the cable at the time when the concrete blocks were installed to ensure that pedestrians such as the respondent were not exposed to the difficulty of determining the presence of the steel cable against the background of the chunky concrete blocks and the ground covered in shadow. For the reasons noted above, I consider that either Hawkesbury City Council or Hawkesbury Sports Council is responsible for the accident which occurred." 1. In answer to the first question (the risk of harm by leaving the cabling in place), Mr Grieve said: "I agree that the risk of harm to cause injury existed because the cable was left in place. I say this because it would have been difficult for a pedestrian to detect the grey cable against the shaded earth and gravel and furthermore the bulk and size of the concrete blocks tended to attract the attention of the pedestrian and reduce the pedestrian's ability to detect the cable." 1. In answer to the second question (foreseeability), Mr Grieve said: "In my opinion, a Council engineer and/or any other appropriate employee should have assessed that there was a risk of injury to pedestrians trying to negotiate the barrier where the cable was a similar colour to the shaded ground and the pedestrian's attention was attracted by the bulk and size of the concrete blocks. Therefore I consider that the risk was foreseeable." 1. Mr Grieve expressed the view that the objective of the Councils (preventing vehicular access to the sports ground) could have been achieved by positioning the concrete blocks more closely together, which would have permitted the cabling to be removed thus preventing the risk of pedestrians tripping over the cable. 2. The Councils countered by serving a report of Professor Ian Coyle, dated 3 February 2016. Professor Coyle described himself as an Adjunct Professor in the School of Psychology, Faculty of Health, Engineering and Sciences, University of Southern Queensland and as a Psychologist, Human Factors Engineer and Psychopharmacologist. He appended to his report an impressive curriculum vitae, demonstrating his expertise in visual perceptions. Professor Coyle informed himself by attending Deerubbin Park. He did this in January 2016. His report, which was a highly esoteric analysis of visual perception, identified ten factors that impact on the visibility and detectability of objects. Those that (it seems to me) are presently relevant are: * the prevailing light conditions; * the type of vision possessed by the observer; * the contrast between the object to be perceived and its surrounds or backgrounds; * the size of the object to be perceived; * exposure time; * prior knowledge by the observer of the existence of the object; * "inattentive blindness". 1. Professor Coyle quoted from a study concerning the visual field of a person walking across a concrete strip, which concluded: "41 …If a slippery condition is not detected within one's effective visual field, usually 10-15 feet ahead, the likelihood of a fall accident is significantly increased." 1. He then observed: "The same is true of an accident such as the one that befell Ms Martin. Considering the height of the wire cable above ground height and its size, the contrast ratio between it and the visual background that wire cable must have been easily discernable [sic] in the central visual field as Ms Martin was walking towards it." 1. Professor Coyle then commented adversely on Mr Grieve's qualifications to express the views he had, saying: "43. Mr Grieve's report is silent on or demonstrates clear ignorance of fundamental principles of perception and human factors engineering. In my opinion, his comments on these topics do not amount to expert opinions. His failures to comment on fundamental perceptual issues such as visual acuity, contrast ratios, illuminance, reflectance, psycho-physical parameters such as Weber's Law, the visual field and the like are devastating omissions. 44. Considering the visual environment that Ms Martin was traversing through, it is my opinion that the weathered galvanised steel cable would have been clearly visible to a person who was not significantly visually impaired or suffering from some some [sic] other relevant medical condition. Since the nature and extent of Ms Martin's pre-accident brain injury and, for that matter, her vision, is not known it is opinion [sic] that these factors may be of some note. Absent from [sic] these conditions, it is my opinion that the accident that befell may be fairly ascribed to a failure to pay attention to the environment that she was traversing. Whether this was due to Inattentional Blindness or some other condition is moot – and irrelevant to the environment where she was injured. 45. The placement of the concrete blocks did not affect the visual environment so as to prevent or materially hinder Ms Martin's capacity to perceive that she was walking into danger. On this point Mr Grieve's opinions expressed that it was 'likely' that …a person approaching the blocks would not discern the cable is not supported. Placement of the concrete blocks did not affect, in any meaningful way the capacity of Ms Martin to perceive it. In sum, it is my opinion Mr Grieve's opinions should be afforded no weight whatsoever." (Bold in original) 1. Photographs contained as an annexure to Professor Coyle's report appear to me to show a considerable degree of shading from the surrounding trees. 2. Ms Martin's solicitors referred Professor Coyle's report to Mr Grieve for comment. In a second report (31 August 2016) Mr Grieve took issue with Professor Coyle's conclusions concerning shadowing of the fence. He then concluded: "Furthermore, leaving a cable in a park located 426 mm above the ground between the carpark and the playing field which was difficult to discern was not a prudent engineering design … In my opinion the concrete blocks because of their bulk would have tended to draw the eye as compared to the 22mm thick shaded grey steel cable." 1. There was thus a clear divergence of opinion between Mr Grieve and Professor Coyle. Mr Grieve forebore to comment on Professor Coyle's attack on his expertise. 2. What next ensued was an unedifying and combative argument between Professor Coyle and Professor David Alais, from whom Ms Martin's solicitors prudently sought an opinion on the issues raised by Professor Coyle. Professor Alais described himself as a Professor of Experimental Psychology and as: "… an international expert in sensory perception." 1. He was asked to: * consider issues of visibility regarding the steel cable on the day of Ms Martin's accident; and * consider the points raised by Professor Coyle. 1. Professor Alais visited Deerubbin Park in September 2016, and took several photographs which he annexed to his report. By this time the cable had been removed. 2. Professor Alais noted that the cable was "low lying" and "well into" Ms Martin's peripheral vision. He said that visual perception in the peripheral visual field is "exceedingly poor", of "low resolution", "blurry", and incapable of perceiving fine details. He explained that this was because the human visual system is extremely concentrated around the fovea (the centre of the retina). 3. Professor Alais identified six relevant conditions that affected Ms Martin's capacity to observe the cable. These were that the cable was "quite fine" and, being at least 25% into peripheral vision, would have been "virtually undetectable"; that the colour of the cable (dull grey) rendered it "not a visually salient object"; that the incident occurred on a winter's day when the sun was low in the sky, and was darkened by shade from overhead foliage, together with the background "of greyish gravel and brownish earth and leaf litter"; and that the shape of the cable (round) meant that light falling on it would be reflected as "diverging rays". 4. Professor Alais summarised his view, saying: "Considering the circumstances of the accident that befell Ms Martin from the perspective of visual perception, I am strongly of the opinion that the cable was not only a trip hazard but one that would have been extremely difficult to perceive. Its location in the periphery of the visual field where images are perceived as highly blurred was critical. Adding to this were poor viewing conditions, as the cable was a low contrast object of relatively fine size in a shaded area placed at a low level (approximately knee height). Given that the visual focal point and centre of visual attention when walking is well ahead of the observer (almost dead ahead, just below the horizon), it is clear that the visibility of the cable would have been very poor. In my view, this is a fundamental point to do with peripheral vision and would not depend on factors such as the visual acuity of the person concerned: the primary factor is the highly degraded nature of vision in the periphery. At the peripheral location in this case of about 25% eccentricity, vision is about 10 times worse than in central vision. The placement of the concrete blocks likely exacerbated the problem. To a person approaching the blocks, they were spaced with gaps between them about the width of a pedestrian pathway and invited access to the football ground through the gaps between them. The decision to maintain a poorly visible trip hazard in situ just in front of the implied access point was in my view extremely unwise and held considerable risk of accident, given the extremely poor visibility of the cable." 1. Professor Alais took account of the time of year (winter) when Ms Martin was injured. He expressed the opinion: "Given the documented circumstances of the accident, it is clear that several factors combined to render the steel cable virtually invisible" He identified two relevant factors for this conclusion as: * Peripheral vision and * Viewing conditions. 1. He disagreed with Professor Coyle in a number of respects, which he spelled out in some detail. He referred specifically to para 41 of Professor Coyle's report (in which Professor Coyle had expressed the view that the wire cable must have been easily discernible). He described this conclusion as an "unjustified sweeping assertion", and the paragraph as "misleading [and] poorly argued." 2. Professor Coyle responded in a report dated 20 December 2016. He disagreed with Professor Alais' explanation of peripheral vision. He also disagreed with what appears to have been a fundamental premise of Professor Alais, that, as Ms Martin was walking towards the fence, the cable was in her peripheral vision. He criticised Professor Alais for failing to refer to: "the completely well established fact that attention is drawn to objects moving relative to the observer that fall within the peripheral visual field." 1. He went on to say: "Human beings do not, in the real world, walk along with their eyes fixed unwaveringly at 'some point distant and just below the horizon' without their attention being drawn to other objects that are moving relative to them." 1. He reiterated this a little later. 2. Professor Coyle then stated disagreement with each of the six factors identified by Professor Alais as affecting Ms Martin's observation of the cable. 3. On 14 April 2017 Professor Alais responded to that report. He attacked each of what he called the "pillars" in Professor Coyle's report and vigorously defended the position he had adopted, and explained his reasoning. He referred to a phenomenon termed "optic flow" and said: "This means that the cable – being static – was no different to any other static element in the image: all were subject to the same optic flow motion and therefore attention would not be more likely to be drawn to the cable than to any other static object in the scene." 1. He concluded: "The two pillars of [Professor Coyle's] arguments against my initial report are that the central visual field is much larger than I had stated, and that the rod photoreceptor system would have signalled the presence of the cable in Ms Martin's peripheral vision. In my view, summarised above …. neither of these arguments stands up to scientific scrutiny. The claimed large central visual field has no scientific basis and the claimed role for the rods is quite simply an impossibility in daylight viewing." 1. The final report was that of Professor Coyle dated 28 April 2017. It is sufficient to say that the acrimonious tone of the debate continued. What can be discerned from the reports is that the principal area of disagreement between the two professors was as to whether the cable should be seen to have been within Ms Martin's central visual field or in her peripheral vision, and this was to be determined by a highly technical analysis of the workings of the eye. 2. A significant aspect of Mr Grieve's opinion concerned the visibility of the steel cable. Objection was taken to parts of Mr Grieve's report. The objection was as to his expertise; it was contended that, as Mr Grieve lacked "expertise or experience with respect to matters of perception", his expression of opinion concerning pedestrian behaviour, what would be likely to have been observed, and the visibility of the cable, was inadmissible. 3. The primary judge ruled that the evidence would be admitted and said that he would give reasons the following day. He did not do so. 4. Notice was given to Ms Martin's solicitors that both Mr Grieve and Professor Alais were required to attend for cross-examination. Mr Grieve did attend, but counsel for the Councils announced that cross-examination was not necessary. Professor Alais was available, but also was not cross-examined. 5. Professor Coyle gave oral evidence by telephone, and was cross-examined by senior counsel for Ms Martin. 6. Senior counsel formulated for Professor Coyle as the issue in the case: "…whether a person in the position of Ms Martin would have had difficulty discerning the presence of the cable in the shade against the background of the earth and the grass in the vicinity." 1. Professor Coyle answered that he did not think that that formulation encompassed all the relevant issues. He did not accept (as a matter of fact) that the area where Ms Martin was walking was "entirely covered by the shade of the overhead trees", but added: "…it's fair to say if it was a very densely wooded or densely leaved tree, there would be a significant amount of shadowing. Whether it amounts to the same degree as say an awning is a separate matter." 1. He agreed that the concrete blocks would have been more visible than the cable, but characterised as "misleading" the proposition that they would have attracted Ms Martin's attention. He explained this by saying: "The blocks are bigger, the cable is smaller. The blocks are more easily discerned than the cable, but it does not proceed from that that the blocks would attract one's attention, per se. Or to put it differently, it does not mean that the blocks would so called 'draw one's eyes' to them; that does not proceed." He did not explain why this was so. 1. He accepted that, in earlier (unrelated) proceedings, he had given evidence to the following effect: "It is a well established principle that when an individual's attention is focused on a particular task that their response to peripheral factors in the visual environment is compromised." 1. In a lengthy answer Professor Coyle questioned the assumptions put to him and said that Ms Martin was not looking where she was walking. 2. He disagreed with the proposition that: "A person walking as [Ms Martin] did would have difficulty discerning the presence of the cable in the shade against the background of the earth and grass in the vicinity." 1. It was put to him that "the correct scientific analysis" was that: "…where this dark object is put against a similarly dark non-reflective background any person would have difficulty discerning its presence." Professor Coyle did not directly answer this question. He responded by stating his assumption that Mr Martin and the boys had been able to navigate the area, and referring to photographs. 1. Asked by senior counsel if the cable would have been safer had the Councils placed yellow tiger tape around it, directing attention to it, he replied: "It would have directed people's attention more to it than as it was, certainly." 1. As indicated above, the primary judge admitted Mr Grieve's reports over objection and stated his intention to give reasons for doing so. He did not give those reasons. The primary judgment 1. The primary judge set out ss 5B and 5C of the Civil Liability Act. 2. He cited the decision of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 for the uncontroversial proposition that the Councils, as occupiers of and responsible for the care and maintenance of Deerubbin Park, owed to persons in the position of Ms Martin a duty to take reasonable care to avoid a foreseeable risk of injury; and to Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [45] for the equally uncontroversial proposition that the obligation or duty is to exercise reasonable care to prevent injury to entrants using reasonable care for their own safety. With this in mind, he held that Ms Martin was taking reasonable care for her own safety, and that the Councils therefore owed her a duty to take reasonable care to avoid foreseeable risk of injury. 3. He accepted that the risk of harm was that entrants to the park "could trip or catch themselves in some way on the cable and could be injured". He held that that risk was not insignificant. 4. With respect to the competing expert evidence, he preferred that of Mr Grieve and Professor Alais. His reasons for doing so are succinct to the point of taciturnity. He described Professor Coyle's evidence as "not helpful" either in the manner in which it was given or its content, but did not elucidate. 5. Later, in the context of considerations raised by ss 5B and 5C of the Civil Liability Act, he referred to Mr Grieve's report, saying that there were a number of problems with it. He complained that Mr Grieve did not elaborate on how any warning could realistically be implemented, nor on how the steel cable could be painted (as particularised in the Statement of Claim). In what was taken by the Councils to be a finding that the cable created an "obvious risk", he held that, as the cables had been in place for many years (prior to the installation of the concrete blocks) the Councils were under no obligation to warn users of the park of their existence. (In context, I interpret this as meaning that no warning was required prior to the installation of the concrete blocks). 6. The primary judge accepted, however, Mr Grieve's evidence that the placement of the blocks meant that the focus of entrants could be deflected from the cables and such persons: "...would have focused attention on walking through the gap in the blocks, and this could make the cable a hazard as less attention might be paid to its presence." He found: "…that the installation of the blocks but with the retention of the cables created a risk of injury of injury [sic] by tripping of which the [Councils] ought to have known and against which they were required to take precautions." He held that the duty of the Councils was: "…to assess the whole of the park to determine if any aspect posed a foreseeable risk of injury against which precautions needed to be taken." He made no findings for the purposes of s 5B(2)(c) of the Civil Liability Act, which requires consideration of the burden of taking precautions to avoid the risk of harm. 1. He then turned his attention to the defence of contributory negligence advanced by the Councils, and said: "60 … [Ms Martin] should have kept a proper lookout by looking for obstacles in the park in front of her as she walked over the uneven surface. I find that she did not keep a proper lookout as she walked towards the cable, as if she had she would have seen the cable whether in shade or not. It was a bright sunny day. Her failure to see the cable was a breach of her duty of care for her own safety." He assessed Ms Martin's responsibility for her injury at 30%. The appeal (Liability) 1. Two grounds of appeal with respect to liability were pleaded. They were: "1. Primary judge erred in finding: (a) the installation of the concrete blocks with the retention of the cable created a risk of injury by tripping, against which the appellants were required to take precautions; and (b) the failure to remove the cable was a breach of duty by the appellants. 2. The primary judge erred in admitting those parts of the Grieve reports to which objection was taken by the appellants." Ground 2 – admissibility of Mr Grieve's reports. 1. It is logical to begin with the admission of the contentious parts of Mr Grieve's reports. Those were the sections in which he commented on the capacity of Ms Martin to perceive the steel cable. The objection was taken on the basis of his expertise (or asserted lack of it) to express those opinions. 2. The submission of the Councils on appeal was simply that Mr Grieve's reports: "…did not disclose any specialised knowledge based on 'training, study or experience' such as to entitle him, as required by s 79 of the Evidence Act 1995 to express an opinion on the issue" ("the issue" being, not the construction of the fence, but the perception of pedestrians). 1. For my part, I would reject the proposition that Mr Grieve's qualifications and experience did not encompass sufficient expertise with respect to the design of structures such as the fence in question. As mentioned above, his experience included structural design and employment as a construction manager, in addition to his qualifications as a civil engineer and building consultant. It is implicit in these roles that consideration be given to any risks or dangers posed by the proposed construction, including dangers inherent in construction that pedestrians, entrants, or users of the structure might encounter. Such designs would, I am satisfied, require attention to the risks that users might fail to observe a risk factor – of which the steel cable is an example. 2. It is of some importance that, although Mr Grieve was present at court in response to a requirement that he attend for cross-examination, the opportunity to cross-examine was abandoned. 3. Under this ground, the Councils also submitted: "33. An opinion on that issue was apparently within the expertise of the respondent's other expert on liability, Professor Alais, but he did not express it." 1. I find this submission difficult to comprehend. The whole of Professor Alais' reports, particularly his first report, were directed to that very question. Professor Alais, who the primary judge accepted in preference to Professor Coyle (although without explanation) was of the view that the cable would have been extremely difficult to perceive. 2. I would reject ground 2 of the appeal. Ground 1: asserted errors in the conclusions reached 1. Except in one respect (see below) the Councils did not attempt to identify any specific error in the primary judge's reasoning. Instead they attacked the conclusions drawn (and the failure to draw certain conclusions) and sought, as they were entitled to do, to have this Court exercise its powers under s 75A of the Supreme Court Act and make its own findings of fact and draw its own conclusions. 2. Counsel for the Councils made a number of points in support of their contentions under Ground 1. First, they invoked the evidence of Ms Neal to the effect that, as administrator of the Sports Council, she had not received any reports of "any issue" in relation to the fence after the concrete blocks were installed. Citing [5] of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, the Councils relied on Ms Neal's evidence as "powerful evidence" that: "…[the blocks] did not present any danger in a real sense for someone taking real care." 1. Reliance on [5] of Makita, was, in my opinion, misconceived. In that case a plaintiff had fallen down a flight of 14 stairs at her work place. Expert evidence at trial that the tread of the stairs was slippery was accepted by the judge. (It was not suggested that there was any specific spill or substance causing unusual slipperiness on the day in question). The plaintiff had worked at the premises for 2½ years, and used the stairs every working day. Priestley JA calculated that she had walked over the step on which she fell at least 575 times, without incident. She had walked on the other 13 steps the same number of times, giving a total of 7,000. There was no evidence that she, or any other employee, had ever slipped on the stairs. The judgment does not disclose the age of the building or the staircase, or its usage other than by the plaintiff and other employees. From his calculations, Priestley JA found that the expert evidence of inherent slipperiness should have been rejected. 2. By contrast, in the present case, the concrete blocks had been in place less than 9 months at the time Ms Martin fell. She had not previously visited the park. Ms Neal's evidence did not establish that no other patrons of Deerubbin Park had failed to observe the cable. It established no more than that she had become aware of no complaints of such an event or incident. That evidence is of so little weight as to be insignificant. 3. The Councils next pointed out that neither Mr Grieve nor Professor Alais was critical of the cable and post barrier, and the primary judge made no finding that it was dangerous. That, also, is of no significance. Ms Martin's case was not that the post and cable fence was dangerous; it was that the positioning of the concrete blocks, in combination with the post and cable fence, deflected attention from the existence of the cable. Shading from overhead trees had the effect, at least at certain times of the year and certain times of the day, of concealing, or rendering inconspicuous, the cable; and that the positioning of the concrete blocks created the impression that passage to the playing fields could be gained through the spaces between the blocks. That was the case accepted by the primary judge. It was supported by the expert evidence of Mr Grieve and Professor Alais. 4. And that case has the virtue of common sense. A person entering the park who observed a row of short posts would expect that they would be somehow connected, for the very purpose for which the cable was in place – to prevent vehicle access. Such a person entering the park who observed the row of concrete blocks would not expect to see a connecting cable, because that is not common experience. Moreover, the blocks had the effect of partially obscuring the posts, so that they were, at least from some angles and in some lights, inconspicuous. 5. The Councils correctly pointed out that the task of the primary judge was to assess, prospectively and not in hindsight, whether the Councils, acting reasonably, ought to have removed the cable before Ms Martin's injury, and contended that, although he had recognised the prospective nature of the inquiry, the primary judge had erred in the assessment. This was the one respect in which specific error on the part of the primary judge was asserted, but no such error was identified. Instead, there was no more than the bald assertion of error. 6. By reference to the photographic evidence, the Councils contended that: "23. The colour, size and shape of the 22 mm diameter steel cable made its presence obvious. It did not readily blend into the background and was in stark contrast to the concrete blocks." They referred to certain of the photographs annexed to the reports of Professor Coyle. 1. It is true that the photographs relied on by the Councils do appear to show the cable clearly. But others – not relied on for this purpose by the Councils – do the opposite. The argument does no more than confirm that great care must be taken with the use of photographs as evidence: see Blacktown City Council v Hocking [2008] NSWCA 144; (2008) Aust Torts Rep 81-956; Goode v Angland [2017] NSWCA 311. 2. The Councils also argued that they were "justified" in not removing the cable because of the possibility that the concrete blocks would have to be removed or that the cable would otherwise be required. This has little (if anything) to do with whether the cable, in conjunction with the concrete blocks, posed a danger to persons such as Ms Martin. 3. Significantly, although (on my count) the Councils challenged eight separate conclusions, they placed no reliance on the evidence of Professor Coyle, and made no reference to the opinion evidence of Mr Grieve or Professor Alais. 4. In oral submissions senior counsel for the Councils dismissed the expert evidence, saying that the primary judge: "… correctly in our submission, didn't pay a great deal of regard to [it]. Because that all went to the question of whether it was scientifically feasible for the plaintiff if she was concentrating on looking a distance ahead towards her husband, that it was possible for her to have not seen 'this cable'." Conclusion 1. Absent the expert evidence, I may have had difficulty arriving at a conclusion that a risk of harm was caused by the positioning of the concrete blocks and the retention of the steel cable. Very little evidence was adduced to reveal the risk of harm. Apart from the expert opinions (which were largely ignored in the appeal), such evidence as there was (and it was principally, if not solely, the photographs) was susceptible of alternative interpretations. Some photographs, as the Councils argued, appeared to show the cabling clearly. Others appeared to show the cabling in shadow of the trees, and inconspicuous. That is a graphic illustration of the caution that, it is well known, ought to be exercised in the use of photographic evidence. To the extent that the photographs can be relied on to prove anything, it is that, at least at some times of the day and some times of the year, the visibility of the cabling was extremely limited. 2. The Councils' decision not to cross-examine either Mr Grieve or Professor Alais, notwithstanding their availability, means that their opinions can be more readily accepted. 3. Professor Coyle's contrary opinion is of less weight. In part that is because his combative style suggested that he adopted the role of advocate for the Councils; in part it is because, on examination, his written opinion, supplemented by his oral evidence, afforded some, although grudging, support for Ms Martin's case. I would infer from the cryptic rejection of his evidence by the primary judge that his adversarial style supported the contention made on behalf of Ms Martin that he had taken on the role of advocate. In any event, analysis of his evidence indicates that he proceeded on suppositions about the circumstances of Ms Martin's injury, such as his assertion that the cable was visible because Mr Martin and the two boys had safely walked ahead of Ms Martin. 4. I would, however, accept, as was put in oral submissions, that the fierce debate between Professors Coyle and Alais did little to cast light on the real issues. The same cannot be said for the evidence of Mr Grieve, who has years of practical experience in construction, and to whose evidence I would attribute significant weight. 5. In my opinion, the evidence of Mr Grieve and Professor Alais cannot be discarded. The parties chose to contest the s 5B issues by enlisting experts. It was the Councils who chose to refine the area of expertise to esoteric analysis of visual perception, as distinct from the common sense and practical approach taken by Mr Grieve. Professor Alais' evidence was directed to the reality of what could be seen in the circumstances as they existed. Professor Coyle took an approach that might have explained much about the science of the eye, but little about the reality on the ground. 6. The evidence of Mr Grieve and Professor Alais established that the juxtaposition of the original post and cable fence, and the concrete blocks, constituted a risk of harm that was foreseeable. It was not insignificant. 7. Precautions available were not burdensome (some were identified in the Statement of Claim). It was a simple matter to remove the cabling. The cabling could have been painted. Alternatively, markers or flags in a contrasting colour could have been attached to the cabling. As a last resort, warning signs could have been erected. 8. For these reasons, I would reject ground 1 of the appeal. That makes it, strictly, unnecessary to deal with the Notice of Contention. Notice of Contention 1. In her Notice of Contention Ms Martin contends that the primary judge "could have and should have" made additional findings relevant to breach of duty. These included a finding that where Ms Martin tripped on the cable was in shade from overhead branches, creating visual difficulties for entrants in discerning the presence of the cable. No submissions were directed to this proposition, and no evidence in support of it was identified. 2. Of more note is the contention that the primary judge ought to have find that the cable was not an obvious risk within the meaning of s 5F of the Civil Liability Act. As mentioned above, it was suggested on behalf of the Councils that the primary judge expressly found that the cable was an obvious risk. This derives from [57] of the judgment in which his Honour said: "57. In my opinion as the cables had been in place for many years, there was no requirement on the defendants in the circumstances of their responsibilities to warn anyone of the existence of the cables. This was not a precaution that was reasonably required. The photographs suggested that, so far as photographs go that the cable could be seen." 1. I do not accept that the second and third sentences of [57] are a finding that the cable was an obvious risk. The following paragraph makes that clear. Para [57] should be read as meaning that, prior to the installation of the concrete blocks, the cable did not pose a risk at all, far less an obvious risk. 2. It is implicit in the conclusions reached by the primary judge that, although he considered that there were risks posed or presented by the cable, he did not consider them to be obvious for the purposes of s 5F. In [58] he said: "Persons approaching the blocks from the car park would have focused attention on walking through the gap in the blocks, and this could make the cable a hazard as less attention might be paid to its presence. … The installation of the blocks but with the retention of the cables created a risk of injury of injury [sic] by tripping of which the defendants ought to have known and against which they were required to take precautions." 1. It was also contended that the primary judge ought to have made more explicit findings in his rejection of Professor Coyle's evidence, including that he had become an advocate for the Councils. In my opinion it was sufficient to reject Professor Coyle's evidence as his Honour did. Cross appeal: contributory negligence 1. The cross appeal was, by the time the appeal was argued, limited to the finding of contributory negligence. 2. The primary judge accepted that Ms Martin had not previously been to the park and was unaware of the presence of the cables. He found that she was walking normally, and was taking care for her own safety but, nevertheless, should have kept "a proper lookout by looking for obstacles". 3. The first complaint about the finding and assessment of contributory negligence was that it was deficient in reasoning. I agree that the reasoning is sparse. But a finding of contributory negligence involves a balancing of the respective responsibilities of the defendant and the plaintiff for injuries. While the primary judge accepted (as, in my opinion, it was open to him to do) that the cable was such that it was difficult to observe, the evidence did not go so far as to say that it was concealed, and would not have been observed by an entrant to the park taking adequate care for his or her own safety. 4. I would not disturb the finding of contributory negligence. The assessment of relative responsibilities is essentially a matter of judgment. In my opinion an assessment of 30% liability to Ms Martin was within the appropriate range of judgments. 5. The cross-appeal should be dismissed. DAMAGES 1. Although Ms Martin claimed, and was awarded, damages under a number of heads, only one is the subject of appeal. That is the damages awarded in respect of past and future gratuitous care services provided to her by her husband. In this respect there was in the evidence a significant divergence of expert opinion. The primary judge awarded a total of $334,960.29. 2. Section 15 of the Civil Liability Act relevantly provides as follows: 15 Damages for gratuitous attendant care services: general (1) In this section: attendant care services means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. 1. Having regard to the issues raised on appeal it is, regrettably, necessary to descend into the minutiae of the evidence and the manner in which the award was made up. 2. As indicated in the opening of these reasons, at the time of Ms Martin's accident, Mr Martin was in receipt of a "carer payment" provided under s 198 of the Social Security Act. According to undisputed evidence, the payment was conditional upon Mr Martin giving "constant, daily care" to Ms Martin and spending no more than 25 hours a week away from his caring duties for work, study or training purposes. (The statutory source of these conditions was not identified but the proposition is uncontentious.) 3. For the purposes of s 16 of the Civil Liability Act the primary judge assessed the severity of Ms Martin's injury as 36% of a most extreme case. That is not the subject of appeal, and is a starting point for the determination of her care needs. 4. Both Ms Martin and Mr Martin gave evidence of the division of labour in the household prior to Ms Martin's fall but after Mr Martin had been allocated the carer payment in 2010. 5. Put shortly, prior to the fall, and notwithstanding her disability, Ms Martin had undertaken a variety of household tasks, such as vacuuming, cleaning the bathroom, dishwashing and shopping. Since the fall, Mr Martin's share of the domestic duties has significantly increased. He also provides her with assistance in personal matters, such as getting out of bed, attending to applying medications to her injured leg, and helping her dress and undress. 6. Ms Martin gave evidence that, pre-accident but post aneurism, she had had some difficulty in undertaking household tasks but had nevertheless cleaned the bathrooms, mopped the floors, done the vacuuming and the washing (although Mr Martin had to hang the washing out). However, in cross-examination she said that, even before the accident, her husband had cleaned the bathrooms. She said that after her injury she was unable to do these tasks because of pain in her leg and the risk of further injury. She said that prior to the accident she and her husband had done the shopping together; post-accident, she waits outside while he does the shopping. 7. Mr Martin gave evidence of the assistance he had given to his wife after she suffered the aneurism, and before the accident. He did the heavy lifting (such as hanging out the washing), moving furniture for cleaning and bed making. He said that doing the bathrooms had always been Ms Martin's job. She had also tidied the house, washed the dishes and sorted clothes, done the vacuuming and mopping. Cooking was always his domain. 8. He said that since his wife's accident, his household duties had increased. He had taken on the vacuuming, bathroom cleaning, dishwashing and the laundry except for folding the washed clothing. 9. He said that cleaning the bathroom takes him about 2 to 2½ hours per week because he is "very old school" and does not use mops, preferring a scrubbing brush for effectiveness. (In cross-examination he accepted a description of himself as "pedantic, very thorough"). The laundry takes about 20 minutes, vacuuming and mopping floors 1 – 2 hours per week. He cleans the oven and the refrigerator, and does the shopping. 10. Mr Martin also gave evidence of the personal care he gives to his wife. Each morning he helps her out of bed, takes off her bed socks, helps dry her legs after her shower, applies dressings to the wound and applies a compression bandage, and helps her to dress. This takes approximately 45 minutes each morning. In the evening the process is reversed: Mr Martin removes Ms Martin's shoes and socks and bandage and applies dressings if necessary – usually about 3 evenings per week. 11. A number of arguments were put in opposition to any award of damages under s 15. The first was that the evidence in support of the claim was "inconsistent and vague" and the court could not be satisfied of what services were provided, or for what periods and, specifically, that the court could not be satisfied that the services exceeded the statutory minimum of 6 hours per week for a six month period. A second argument was that the claim should (at least in part) be rejected because the services provided by Mr Martin were not to meet "a reasonable need". (In this respect, particular reference was made to the evidence concerning the bathroom cleaning and what was characterised as Mr Martin's "pedantry"). The third argument was that the domestic services provided by Mr Martin (as distinct from the personal care services) were provided to a household of four (Mr and Mrs Martin and their two teenage children), and the claim should accordingly be reduced by 75% to take account of the other recipients, the services not being provided exclusively for Ms Martin. 12. The final argument was that Mr Martin was already in receipt of a carer pension which required him to be Ms Martin's paid full-time carer. Reports of occupational therapists 1. Each party retained an occupational therapist for the purpose of reporting on a number of issues, including Ms Martin's need for "attendant care services". The occupational therapist retained on behalf of Ms Martin was Miss Joanne Heathcote. Miss Heathcote provided a detailed report. She was not required to give oral evidence. For the purposes of assessing Ms Martin's care needs, she broke the period since the accident into three, and provided a separate assessment for future needs. She divided the care needs into "personal" and "domestic". 2. The first period she considered was a two week and five day period while Ms Martin remained an in-patient at Nepean Hospital. She did not make any assessment of care needs for that period. The second period from the date of discharge from hospital (24 August 2012), to 24 February 2013, was 26 weeks. Miss Heathcote assessed the personal care needs at 21.1 hours per week and domestic assistance at 21.25 hours, a total of 42.35 hours per week. The third period of 111 weeks, was from 25 February 2013 to the date of Ms Heathcote's assessment, 9 July 2015. Ms Heathcote assessed the personal care needs as 3.7 hours per week, and the domestic assistance at 17.75 hours, a total of 21.45 hours per week. For the future, she assessed the personal care needs at 8.7 hours per week, and domestic assistance at 5.3 hours, a total of 14 hours per week. 3. Miss Belinda Moylan provided a report for the Councils. She supported an allowance for personal care during the time Ms Martin was mobilising on crutches, to about 5 October 2012. She considered Ms Heathcote's weekly time allocation to be excessive. She did not support on-going personal care assistance once Ms Martin achieved independent mobility. She supported domestic assistance at a gradually reducing level until 8 February 2013, when, she said, Ms Martin's general practitioner reported that the wound was healed. Ms Moylan also was not required for cross-examination. 4. The primary judge effectively dismissed both reports. He said: "15. As is usual each party engaged occupational therapists to opine what needs the plaintiff had or did not have caused by the accident. The code of conduct provisions of the [Civil Procedure Act] and [the Uniform Civil Procedure Rules] seemed to have little effect on the approaches of these persons in this case. All that could be said is that the plaintiff's 'expert' was less egregious in the assessment of alleged needs." 1. The relevant findings are: "27. There can be no doubt that initially the plaintiff required significant domestic care to her release from hospital. I find that the claim between 24 August 2012 to 24 February 2013 should be allowed but I do not accept that 42.35 hours per week should be permitted. This is particularly so having regard to the fact that the plaintiff's husband was receiving a carer's pension and many of the activities that were undertaken for the plaintiff stated in the occupational therapists' reports were the sort of activities which would have otherwise been dealt with in that context. In my opinion 22 hours per week is appropriate on average up to 24 August [sic - it was agreed that this should read February – 2013]. From that date to 9 July 2015, I allow: 17 hours per week. Thereafter from 9 July 2015 I am satisfied that 10 hours per week is appropriate and this would be the allowance for the future for a period of 10 years and then reducing to 7 hours per week permanently. 28. I come to this conclusion because I do not accept the views of the occupational therapists engaged by the defendant over and above the evidence of Mr Martin and some aspects of the plaintiff's occupational therapist especially from the initial stages of treatment. I have taken into account the fact that the plaintiff's husband is in receipt of a carer's pension and the relevance of that is exhibited in [exhibits outlining the nature and requirements of a carer payment]. He nevertheless has provided additional care since the accident. 29. I reject the submission made by the defendant that because Mr Martin receives a carer's pension there can be no allowance for extra domestic care he provides which transcends the work that he already was doing for the plaintiff. … I am satisfied that the additional care I have allowed is solely required because of injury to the plaintiff's leg in the fall." 1. After delivering judgment, the primary judge directed the parties to provide a minute of judgment to reflect the findings. The minute they provided quantified the amount allowed for domestic assistance provided to 21 July 2017 (the date of judgment) at $110,100.16, and the amount allowed for future domestic assistance at $224,860.13. A separate document provided to this Court, that appears to be a work sheet, shows how the calculations were made and the hourly rates on which the calculations were based. The source of the hourly rates is not apparent. 2. By ground 3 of the appeal Councils asserted error in making any allowance for past and future gratuitous domestic care services provided by Mr Martin in light of the circumstance that he was receiving a carer payment as a full-time carer at the date of the injury. 3. The Councils' initial argument was that, because Mr Martin was in receipt of a carer payment that required him to be available to care for Ms Martin full-time, other than 25 hours per week, any additional domestic care services came within those hours for which he was already receiving payment. Reliance was placed upon some observations of mine in Gordon v Truong; Truong v Gordon [2014] NSWCA 97. 4. The argument should be rejected. In Gordon v Truong the wife of the injured plaintiff was, before his injury, in receipt of a carer payment. The plaintiff claimed and was awarded damages representing additional services required following the motor vehicle accident that caused his injuries. This Court (by majority) allowed a sum calculated on a commercial basis. I distinguished Miller v Galderisi [2009] NSWCA 353 in which, unlike this case and Gordon v Truong, a carer payment had been awarded by reason of the injuries the subject of the claim. The same distinction applies in this case. It was appropriate to make an allowance representing the escalation in Ms Martin's care needs following the accident. 5. I would therefore reject ground 3. 6. By ground 4 the Councils assert error in 3 respects: * failure to give adequate reasons; * awarding damages that were contrary to or not supported by the evidence; * failure to apply any discount to the award for future services having regard to Ms Martin's medical and family history. It is convenient to begin with the last of these. That is complaint made on behalf of the Councils of what was said to be the failure of the primary judge to apply a discount to the allowance for future care, on the basis of Ms Martin's compromised health. 1. Such a submission was made to the primary judge. It was unsupported by any evidence as to any shortening of Ms Martin's life expectancy by reason of her pre-existing health conditions. I would therefore reject that ground of the appeal. 2. The position of the parties fluctuated with respect to the complaint of inadequacy of reasons. In oral argument Senior Counsel for the Councils said: "I am not suggesting that there's anything to be inherently criticised for being succinct about matters which are, as we accept, largely matters of impression when it comes to assessing how much domestic assistance is required." 1. Counsel for Ms Martin submitted that it was better "not to dwell" on the inadequacy of the reasons, but to proceed to substantive matters. They sought to support the resultant award. 2. The manifest inadequacy of the reasons cannot be so lightly disposed of. It is impossible to discern the basis on which the primary judge reached the conclusions that he did. There is no evidence to explain the different time periods selected, nor the assessment of hours allowed. Eventually, both parties agreed that the reasoning is so deficient that there is no alternative other than for this Court to undertake the evaluation itself. Ground 4 of the appeal, so far as it asserts inadequacy of reasons in relation to the award of damages for gratuitous domestic assistance, should be upheld. 3. What Ms Martin is entitled to under s 15 is compensation for the increase in her personal care and domestic services needs since the date of the accident. The best guide for that evaluation is the evidence of what has actually happened in that time. That is the evidence given by Ms Martin herself and her husband. The evidence of the occupational therapists is of little, if any assistance as to the reality of her needs. In particular, no evidentiary basis for distinguishing three separate periods, with differing needs (as Ms Heathcote did), was identified. Certainly that does not emerge from the evidence either from Ms Martin or her husband. 4. Although there were some inconsistencies in her evidence, Ms Martin was accepted as a truthful witness. There was no criticism of Mr Martin's veracity. The appropriate course is to calculate the relevant need by reference to their evidence. Notwithstanding the suggestion made on behalf of the Councils that the evidence was unclear and vague, I am of the view that Mr Martin gave a reasonably clear account of the additional time he takes in personal care and domestic duties. 5. A summary of the evidence was set out in written submissions provided on behalf of Ms Martin to the primary judge, and reproduced in written submissions in this Court. I see no reason not to accept it. The Councils took issue with some of the detail of Mr Martin's evidence. For example, they questioned the precision of the evidence about the time taken to vacuum and clean the oven and refrigerator. They took particular issue with the time said to be given to cleaning the bathroom, reiterating the description of Mr Martin as "pedantic" in his insistence on thoroughness. 6. These quibbles should be rejected. The evidence, in my opinion, presented a fair picture of Ms Martin's additional needs. 7. The evidence, as summarised on behalf of Ms Martin, estimates the additional time given by Mr Martin in a range of 9 hours 40 minutes to 11 hours 20 minutes per week. The mid-point of that is 10.5 hours; that is the allowance I consider to be fair and reasonable both for the past and the future. 8. There was no evidence to support the selection of any hourly rate of payment. It is left to this Court to make its own assessment. Nor is there any reason to think, nor evidence to suggest, that Ms Martin's needs attributable to the accident will diminish in the future. 9. Reference to the calculation document shows that the parties apparently agreed upon a monetary rate ranging from approximately $27 to approximately $30 per hour. In my opinion, justice will be done to both parties if an allowance is made of $28.50 for 10 hours per week for the 325 weeks (to 30 September 2018) since Ms Martin's discharge from hospital, which was, according to Ms Heathcote, on 23 August 2012. 10. For past domestic assistance rendered gratuitously for 10 hours per week for 325 weeks at $28.50 per hour, I would award the total sum of $92,625. 11. For the future, I would allow 10 hours per week at $30.00 per hour. 12. Ms Martin is now 52 years of age. The Australian Life Tables suggest that she has a life expectancy of 36.41 years. The parties should calculate the proper award of damages for gratuitous domestic assistance. Costs 1. The bulk of the time of the appeal was taken up with liability issues. To that extent the appeal should be dismissed, and the Councils should pay Ms Martin's costs. 2. The orders I propose are: 1. Appeal against the finding that each Council is liable to Ms Martin in negligence dismissed. 2. Appeal against the quantum of damages awarded upheld. 3. The parties to prepare short minutes of order to reflect conclusions. ********** Amendments 16 April 2019 - Order 4 added 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: 16 April 2019