Oberlechner v Hornsby Shire Council

At 9:30pm or so on Saturday 29 January 2011, the plaintiff took his two dogs for a walk as he often used to do in the evening. As it happened, he departed from his usual route and walked down Cairnes road in the Sydney suburb for which the defendant was responsible. Although one side of the road, immediately adjacent to residential housing, was paved, he decided to walk down the other side of the road on a grass nature strip. As they are wont to do, the dogs strayed a short distance off to the side and started to sniff along some bushes and grass, perhaps knee or waist high. The plaintiff, as dog walkers are wont to do, followed them. Unbeknown to him, however, about 3.5 or 4 metres from the edge of the bitumen surface of the road was the unmarked edge of a wall, falling sheer to a rocky drain three metres below, over which he fell. This headwall was part of a culvert for channelling flood waters from adjacent higher undeveloped or farming ground under the road and the adjoining residential development.

The plaintiff said things went black and, when he came to his senses, he found himself lying in the pit on his back with the water of the little creek running past. His dogs were near him. (One had broken a leg). Eventually, he used his mobile phone to call triple 0 (after attempting unsuccessfully to call his wife) and an ambulance was sent out. He was in darkness and it took some time before he was located and extracted with the assistance of Search and Rescue. He was taken to Westmead Hospital where he was admitted with fractures to his left hand and wrist and to the right ankle and several soft tissue injuries.

It is undisputed that the headwall was owned by the defendant, which was responsible for its proper maintenance. The case of the plaintiff is, essentially, that, situated by the side of the road as it was, with its edge obscured by vegetation, the defendant ought to have fenced the headwall off to remove the risk of a pedestrian falling over the edge and injuring themselves. In this respect, s 45 of the Civil Liability Act 2002 (NSW) gives what is described in the Act as “special non-feasance protection for roads authorities” to the defendant, which the plaintiff must displace if he is to establish his claim. Additional statutory protection is afforded to the defendant by s 43A (all legislative references are to the Civil Liability Act 2002 (NSW) unless otherwise indicated), which applies where a “special statutory power” has been or failed to have been exercised. It is not disputed that the defendant, as the roads authority and owner of the road (and the culvert as part of the road) had a duty of care to take reasonable precautions responding to any foreseeable and not insignificant risk of harm. It will also be necessary to consider s 5B to determine whether the defendant breached this duty of care and also s 5R, which concerns the issue of contributory negligence of which, the defendant submits, the plaintiff was guilty.

So far as the issue of damages is concerned, there is a real question whether the plaintiff had any capacity as at the date of accident to earn any significant income. Certainly, he had been incapacitated from his usual occupation as a computer technologist since about 2000 and the evidence he presented as to his earning capacity following the accident, had it not occurred, is, to say the least, exiguous. The evidence also does not justify any award of damages for either past or future domestic assistance. I will deal with all these issues in due course.

The plaintiff was not represented and, at times, had difficulty in appreciating the trial process but he was compliant when matters were explained to him. He evidently laboured under some difficulties of expression and organisation but, in general, managed to conduct his case with reasonable effectiveness, though there were some gaps. He became emotional at times as he described his feelings when he found himself at the bottom of the wall and the difficulties of obtaining assistance. I thought he was attempting to tell the truth as best he could, though some of his evidence was reconstruction rather than actual recollection.

In her affidavit, Mrs Oberlechner (who was not required for cross-examination) said that the plaintiff finished doing some lawn mowing work on the day of the accident at around 4pm or 5pm, then relaxed, drank two beers and watched television. They had dinner at about 7:30pm or 8pm, the plaintiff having about one and a half glasses of wine with the meal. He then watched television for a little and at about 9pm took the dogs for a walk, seemingly relaxed and well. The plaintiff at one stage suggested he left at about dusk; considering the date, this may have been so but, even had he left home at dusk, it was dark by the time he reached the headwall. He later agreed that he had left home when it was dark and did not have a torch. It was his practice to go out in the evening or night-time to take the dogs for a walk. He had been living in the area for about two years before the accident but, although he had driven down Cairnes road before, this was the first time he had walked along it with the dogs. He said there was some street lighting just before the accident site on the corner “so there was like a shadow sort of, faint light shining over, so you – I could see the road, I could see the grass but not in any great particular detail. So it wasn’t totally pitch-dark”.

The plaintiff described his walking in the local suburban streets for (as I estimate) perhaps 20 or 30 minutes or so, ultimately coming to Cairnes Road, which he crossed to walk on the nature strip. There was some street lighting across the road but not on the side on which he walked. He could still see in the dimness. He said that he followed the dogs, which were sniffing what appeared to be bushes or overgrown weeds. His recollection appears to be that he was stepping through “overgrown weeds”. He then took another step along the nature strip and fell. In his letter of complaint to the defendant on 28 February 2011 he said that he “followed the dogs not thinking much, unaware that there was a massive hole opening dropping down about three metres hidden behind the bushes… [and the] last thing I remember I took another step forward and then it all went black… as I fell down the hole”. Elsewhere he said, “I must have got too close to the edge of the pit with my right foot, thinking I was stepping over overgrown weeds”.

In cross examination the plaintiff was asked –

Photographs of the scene were taken by the plaintiff’s wife on the day following the accident. They provide a much more reliable picture of the vegetation at the headwall than the plaintiff’s recollection which I think is likely to have been affected by the fact that he was not paying particular heed at the time and the likely discombobulating effect of the fall and its aftermath. His evidence contained, I think, a degree of reconstruction as he tried to make sense of what had happened.

The photographs show branches of bushes or trees growing from the ground more or less at the base of the headwall which overhang somewhat into the verge area with one or two straggling, small trees perhaps a metre or so high apparently on the verge towards the side of the flat “apex” of the wall. There are no bushes along the apex, with the grass running to (and overlapping) the edge. The grass appears to have been flattened along the apex going back to the road, probably by those attempting to extract the plaintiff from the drain, though ultimately it was necessary to approach him from the bottom of the wall rather than from the top. There is, as I have said, no sign of bushes in this area and no sign of any having been removed or trampled – though if any were trampled to the ground, they must have been small. It seems likely the plaintiff had approached the edge by a slanting route, following his dogs and, if so, he may have come across the small trees mentioned or, if from the other direction, the overhanging branches of the trees growing from below. Certainly, there was no vegetation remotely capable of constituting a barrier and no sign of there having been. It is evident also that the verge close by and along the road had been recently mown, since an ongoing strip of short grass perhaps two or three metres wide can be seen in several of the photographs.

Aerial photographs tendered by the defendant dated 2009 and 2011 show foliage at the wall but the angle and distance make it impossible to judge whether the foliage is at road level or overhanging the edge and, if the latter, how close to the ground at the nature strip it came. There is a strip of grass (backed by a large area of lawn) alongside the road which has obviously been mown and, as I read the photograph, continues (obscured) along the road underneath the foliage, emerging again where the overhanging foliage ends further down. Aerial photographs dated August 2013 and February 2014 appear to show some clearing of the foliage, confirming my impression that it came from trees growing from beyond the edge and overhanging the nature strip above. Google street views of February 2014 appear to show the area is completely mown and tall trees beyond the wall with foliage overhanging the cleared strip. A wire fence is depicted apparently along the edge of the wall. These photographs do little to elucidate the question of the extent of the vegetation at the wall in January 2011 and do not suggest to my eye that the photographs tendered by the plaintiff should be understood differently to the observations I have described above.

I should mention at this point (though somewhat prematurely) that what Mr Bewsher (the plaintiff’s expert) called “a typical guidepost for a road”, bearing the usual reflector, is depicted in the plaintiff’s photographs about a metre in from the edge of the headwall. The defendant was responsible for the road and, hence, for the placing of guideposts. The photographs show that it stands alone and is thus not part of the commonly seen line of guideposts marking the edge of a road or road reserve. The high probability is that it was placed in that position for the purpose of preventing a vehicle from approaching the edge. It must follow that an employee of the defendant, responsible at least for the safety of road users, was aware of the risk posed by the wall and had turned his or her mind at least to the risk for vehicles. In my view the risk to pedestrians in this area – houses are shown on the road, alongside and opposite – was just as obvious.

The account in his statement, which I accept as essentially truthful, is as follows –

The plaintiff said that, after some time, he saw the reflection of lights and told the operator to ask the ambulance crew to stop and look in the bushes along the side of the road. He also started to call out. He was then found. Eventually a fire and rescue crew came around the other side of the headwall, below the road, cutting through the thick vegetation and placed the plaintiff on the stretcher and into the ambulance. He had previously been given some pain relief in several doses. He described himself as “somewhat delirious from the shock of the accident, the fear and anxiety of thinking I may die, excruciating pain and the strong pain relief I was administered”. Although in his statement he described a blow to the head, I think this was reconstructed from his calculation of the time which elapsed between his leaving home and the first contact with triple 000, which of course was recorded. The plaintiff calculated that he was unconscious for several hours. I think this is unlikely but it was a not insignificant period. I also think it likely that, after he came to, a significant time elapsed before he was sufficiently recovered to get his mobile phone and start to make the calls. In the result, nothing turns on this.

The culvert, of which the headwall was part, ran under Cairnes Road and held a wide pipe going on for some distance under residences on the other side for the purpose of draining stormwater following a substantial flooding event. The headwall, near enough to vertical, supported the roadway. Viewed from above, it comprised a flat edge parallel to the roadway about 30cm wide and flush with the level of the nature strip, straight for about three or four metres, and having wings going out at an angle from each end. It fell about three metres to the rocky ground below. The length of the wall was not the subject of direct evidence and does not matter very much, since the plaintiff’s evidence (not controversial on this point) is that he found himself on the ground either in or adjacent to the lead-in drain to the embedded pipeline. (From the tendered photographs it appears that it extended on each side of the pipeline (itself 1.35 metres wide) by something like three metres (and probably more) from the centre.) The relevant construction drawing is dated October 1978 and the culvert with the headwall was built sometime in late 1979. The drawings and the defendant’s records do not indicate that any safety fencing was required to be installed to prevent pedestrians falling into the structure and it is very likely that the headwall was built without any safety fencing and remained so until a fence was erected shortly after the plaintiff’s accident. As well as being the consent authority for the work, the defendant checked the designs prepared by the contractor and, indeed, the size of the pipeline was increased as a result of its requirements. On 7 November 1978 Mr RK Woodward, the defendant Shire Clerk wrote to Gutteridge Haskins & Davey Pty Ltd, the consulting engineers who had submitted the engineering plans for the road and drainage works associated with the subdivision along Cairnes Road adjacent to the headwall, approving the plans which had been submitted by the firm subject to a number of specifications. The firm was reminded that, when it intended to commence work, the Council’s assistant subdivision engineer Mr R. Minns was to be notified to conduct an inspection of the site accompanied with a protractor. I think it probable that such an inspection took place. I think it also very probable that the site of the culvert here in issue was seen and that the proposal for the headwall, together with its position and dimensions must have been known to Mr Minns. I think it reasonable to infer from his position that he would have been a person charged by the defendant with responsibility to make decisions about road works. Indeed, it is likely that the headwall details would have been shown on the amended engineering plans submitted by the consulting engineers and the person who specified the additional matters, related in a detail to the construction and following an examination of the proposed works, was also in a position to appreciate the risk for pedestrians presented by the proposed headwall. That person also, I think it reasonable to infer, was responsible in the relevant sense for dealing with the risks that the construction obviously presented. Following completion of the engineering works required for the subdivision, on 4 May 1979 the consulting engineers forwarded to the Shire Clerk the final plan together with a s 88B instrument for the Council’s endorsement, and a certificate signed by the surveyor as to the location of storm water pipelines. It is clear that the particular pipeline secured by the headwall was one of those and its location was therefore brought again to the attention of the defendant. It is likely that these plans and the certificate would have been inspected by an engineer who was involved with overseeing or supervising Council’s role in respect of engineering works, including the road works involved in the culvert. The knowledge of this person or these persons would be the actual knowledge of the Council in the sense of s 45.

The only evidence concerning the construction of the pipeline, stormwater drainage design practice and the defendant’s connection with the pipeline and its location was given by Mr Drew Bewsher, called by the plaintiff, whose report was tendered. The defendant proffered no evidence about this matter. Mr Bewsher’s qualifications and expertise in relation to the matters about which he gave evidence were not in issue. In brief, following his formal tertiary qualification in 1975 and 1977, he worked in water related projects in Australia, America and South East Asia, including floodplain risk management studies and plans for approximately 30 New South Wales’ councils. He has extensive experience in the design and management of flooding and draining infrastructure, including major trunk stormwater systems and the civil works associated with numerous floodplain and stormwater projects. More particularly, his experience included the evaluation of many hundreds, if not thousands, of urban stormwater drainage systems and the provision of advice to over two dozen local councils, many in the Sydney area. He has also written a number of technical papers on urban stormwater and flooding issues. He commenced working in Sydney as a hydrologist and stormwater drainage engineer in November 1979. As it happens, he has considerable experience of the stormwater drainage systems within the Hornsby Shire, extending from the late 1980’s when his firm was commissioned to investigate the stormwater inundation of approximately 100 residential properties within the Shire which occurred during major storms in 1988, 1989 and 1990. The work broadly comprised investigation of the deficiency in the stormwater drainage systems, proposals for rectification and the engineering design of rectification works. He said that, since the 1990’s, his firm had provided advice to the defendant on a regular basis but not as frequently at it did during the 1990’s. Over 2013 and 2014 the firm undertook major stormwater drainage study which included investigation and recommendation of stormwater drainage upgrades in a problem area of Epping and Carlingford. During his career, Mr Bewsher has inspected over a hundred stormwater drainage systems within the Hornsby Shire which have included numerous larger diameter pipe systems such as the one in Cairnes Road. He was cross-examined about whether his reports following the inundation to which he referred, included such safety issues as lack of fencing at headwalls. He said this was not the primary purpose of the investigations, which was to identify why the houses were flooded above floor level and the inspections of the stormwater systems were part of that process but, where there was a safety deficiency, it was part of his responsibility to bring it to the Council’s attention.

Mr Bewsher, accordingly, has had some decades of experience working with the defendant all over the Shire. He was familiar with the way the defendant builds its stormwater systems. In his experience, the omission of a safety fence at the site of this headwall was inconsistent with what he had seen in the Shire. Indeed, he went so far as to say that he “had never seen a situation like that in Hornsby without a railing on it” and was “staggered” to find the headwall had not been fenced, not only (as I understood his evidence) because it was a danger, but because this was markedly inconsistent with the defendant’s attitude to safety that he had observed. He said that, when he was doing the investigations for the Council, he did not himself suggest or propose safety fencing, but fencing was there as a matter of standard practice.

It is useful at the outset to consider s 43A and s 45 since they apply specifically to the defendant in the circumstance of this case and present, as it were, the gates which the plaintiff must open before other more general provisions relating to liability come into play. Taking first s 45, the defendant is a “roads authority” as Cairnes Road is a public road of which it is the owner with power (but not a duty) to carry out road work. A road is defined in the Roads Act 1993 (NSW), in effect, to include the culvert and the headwall and “carry out road work” is defined similarly. It would also include, for example, building a safety fence along the edge.

The crucial issue raised by s 45 is whether the plaintiff has established more probably than not that the defendant “had actual knowledge of the particular risk the materialisation of which resulted in the harm”. The particular risk relevant here is that someone might accidently fall over the edge of the headwall and suffer physical injury. The plaintiff must show that persons “who in fact have the function of carrying out roadwork, or of considering carrying out roadwork” possessed the actual knowledge of the particular risk: North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27 (“Roman”) per Bryson JA at [130]. In that case the plaintiff was injured when she tripped in a pothole which was known to the Council’s employed street sweepers. She argued that it was the street sweepers’ duty to inform the persons at the Council responsible for road maintenance of the presence of the potholes and, therefore, the risk that someone might trip as a result would have come to the actual knowledge of the persons having the function of carrying out or considering the carrying out of roadwork. The Council adduced evidence from the supervisory staff with responsibility for street sweeping and road maintenance denying knowledge of the pothole in question at the relevant time but the trial judge inferred that one or more of them (unidentified) in fact had such knowledge and that this knowledge was the knowledge of the Council. On appeal, the respondent contended that the evidence established that the Council had put in place a system to guard against hazardous potholes which involved the street sweepers reporting their presence as they carried out their duty to their supervisor, who in turn reported the problem to a person responsible for carrying out repair work and that, although the only evidence of actual knowledge was that of the street sweepers, given their role in looking out for and reporting on hazards that might require repair, this sufficed to render their state of knowledge to be that of the Council for the purposes of s 45(1). The appellant argued that the trial judge had erred in determining that some person with relevant responsibility had actual knowledge of the risk presented by the pothole, despite the evidence of the responsible officers to the contrary (upon which they had not been cross-examined).

Basten JA identified (at [176]) several errors in the factual reasoning of the trial judge which went to “a critical element in the case” and, after noting additional errors, concluded that the judgment could not stand. To appreciate the process of reasoning for which Roman is authority, it is necessary to note, in particular, the language in which Basten JA stated his conclusion –

Bryson JA (agreeing with Basten JA) stated –

In this case, the defendant took over the ownership of the pipeline infrastructure, including the headwall. Although the date that it actually did so is uncertain it was, at all events, significantly before January 2011. As I understand Mr Bewsher’s evidence, the defendant would have had a particular interest in the design and construction of this drainage system, because it was envisaged that it would take over the infrastructure and, as Mr Bewsher put it, “they’re going to have to be responsible for it forever. In the documentation he reviewed, he saw a great deal of correspondence between the defendant’s design engineering employees and the contractors about the design, including (as I have mentioned) a recommendation that pipe sizes be upgraded. There was no specific indication that the defendant’s employees inspected the site but he said that he would expect that they did so before approving the design, given the size of the adjoining sub-division. He pointed out the designs at the time used what engineers called a “standard drawing”, so that the same drawing would be used whether there was headwall 600 millimetres or three metres high. Safety considerations would only be apparent on the bigger sizes and would not be needed on the smaller sizes. He said, therefore it is only after construction that the Council engineer would inspect the works and consider, amongst other things, safety questions. Mr Bewsher said there were three opportunities in the process for the question of safety to arise because of the height of the headwall to be considered: in the original design on the plans; when the works are constructed; and when the Council Asset Manager (as he is now called) went to look at it and accept the works because the Council then became the owner of it. He said, in his experience, such an inspection would always happen when a Council was going to take over the asset: it is going to be theirs; they are going to be responsible for it in perpetuity; they would not take it over without inspecting it to make sure they were happy with its design. He pointed out it was never sufficient to accept a “work-as-executed” plan submitted by an engineer since this was limited to a comparison of the construction with the plan and is not a substitute for an inspection by the responsible Council officer. I understood this evidence to mean that the officer who was responsible for inspecting and accepting the construction as compliant was also responsible for ensuring that it was safe. (However, on the other side of this reasoning, it might be inferred – though, as explained below, I do not accept this argument – that, since safety fencing was not erected, no relevant officer of the Council was in fact informed of the danger, though he or she ought to have been so informed.)

These, however, were not the only ways in which the Council would have become aware of the safety issue. Mr Bewsher said that, by January 2011, having unfenced headwalls (I think he meant with a fall of the order of that involved in this case) was “uncharacteristic of the Council” and went on to say –

The question arising under s 45 of actual knowledge of the defendant must, of course, involve more than the knowledge of the gardening department or a passing clerk and that constructive knowledge is not the test. The effect of Mr Bewsher’s evidence is, as he understood the way in which Hornsby Shire Council operated, the probability is that, one way or another, a Council employee would have noticed the risk represented by the headwall to the safety of pedestrians and informed some relevant officer of the Council of the risk, that is, the officer responsible for the road works.

Mr Bewsher pointed out that, in the late 1970’s – that is, when this headwall was constructed – stormwater drainage practice gave little guidance so far as public safety was concerned, although this was always a feature of the duty of care recognised by the engineering profession. He pointed to a publication known as “Australian Rainfall and Runoff” which provided the principal guidance for New South Wales stormwater engineers at the time. The 1977 edition under the subsection “Safety” within the chapter “Urban Drainage Design” stated –

Over the 1980’s and 1990’s significant changes occurred in the manner in which safety issues were addressed by the stormwater engineering community. There were no clear guidelines or procedures to ensure safety; rather, safety measures were commonly retrofitted when safety concerns had been raised, often only when a complaint had been made by members of the community or when, for whatever reason, a council officer inspected the site and became aware of the safety risk. As Mr Bewsher put it, this was “a reactive approach to safety rather than the pro-active approach used today”. He observed that it appeared from what the plaintiff said that the presence of the concrete headwall was partially obscured by grass and the surrounding ground levels were broadly similar to roadway and the grass verge and, consequently, the large drop present at the face of the headwall was unexpected; this might have hindered the identification and reporting of the safety problem to the Council.

In the decades after 1979, stormwater engineering practice became more codified and various guidelines and manuals were prepared, emerging in the 1980’s and 1990’s, mostly discussing the potential risk of drowning but the safety of pedestrians falling into structures was also considered. Mr Bewsher said that, by the early to mid-1990’s, the relevant guides and manuals placed a clear requirement on designers and consent authorities to give greater considerations to safety risks and proactively protect against personal injury and drowning through proper design, which would have required safety fencing around dangerous headwalls, such as that here, and also created an obligation on councils to rectify safety deficiencies in existing structures. As a sign of this changing practice, Mr Bewsher commented that the Sydney Water Corporation is responsible for over 400km of stormwater channels and other stormwater drainage assets across Sydney of which, in the 1980’s, very few were fenced but, over the decade or so from 1990 onwards, safety fencing was provided by the Corporation around all its structures.

It is not necessary, I think, to deal in detail with the material cited by Mr Bewsher in his report. It was not suggested to him that, well before the accident here occurred the defendant had no duty to erect a safety fence at this headwall once a responsible officer became aware of the issue, though there was some debate about what safety measures might be necessary (discussed below). It could scarcely be controverted that this headwall was dangerous.

Mr Bewsher referred to the Council’s preparation in April 2006 of a “formal asset management plan (AMP) for its stormwater assets including all its pipes and headwalls”. The part of the AMP which shows a survey of the headwall in 2000 shows that it was conducted by a subsidiary of the Sydney Water Corporation, Australian Water Technologies. The AMP itself came into existence into about 2005 and covers 2005 to 2015, so that the document referring to the 2000 survey came into the plan, of course, at a later date. There was also a survey or inspection carried out by Council in November 2007 but the relevant document directly relating to that activity was not seen by Mr Bewsher. Mr Gambi of Counsel for the defendant suggested to Mr Bewsher that what he took to be updated information was simply the entry of the 2000 information into the AMP. Mr Bewsher could not answer that question immediately, saying he needed to look at his documents. Ultimately, however, this possible explanation was not pressed by Mr Gambi, so that Mr Bewsher’s evidence on the point remained unqualified. He said that, for the purposes of conducting the audit of Council’s assets performed by AWT in 2000, a physical survey would have been involved which identified not only the location but also the dimensions and conditions of the asset. He thought that, as a part of this process, Sydney Water would have identified the safety risk issue when it was surveyed if the headwall was open and exposed. However, if (as suggested by Mr Gambi) there was one or one and a half metres of blocking vegetation around the headwall, so that people could not fall into it, he would not have expected any note about danger. (I have discussed the issue of vegetation at the site above and concluded there was nothing to impede access to the edge of the wall. The suggestion that the presence of vegetation might have been sufficient at some earlier time to provide adequate safety is taken up below and dismissed.)

The preparation of the AMP and its supplements required the defendant to identify and inspect its principal stormwater assets. The documents indicate that, in March 2011, the Council had something in excess of 1400 headwalls under its control, most of them considerably smaller than that in Cairnes Road. Mr Bewsher stated in his report –

Given the position of the headwall, it is likely that its safety risk was brought, one way or another, to the attention of the defendant’s relevant officers on occasions over the 31 year period after construction. Records obtained from the Council indicate that the headwall was listed within Council’s stormwater asset database and that inspections to determine the structural condition of the asset had been carried out. The safety hazards at the headwall must have been evident during those inspections and on other occasions.

I should add that, in my view, the particular risk that a pedestrian walking along the nature strip might fail to see the edge of the headwall and fall over it would have been obvious to any person who saw the headwall in that location, including the engineer or road works inspector (whatever his or her actual designation). This was no mere accidental hole in the road or happenstance protruding tree root but a construction with which the defendant had been closely involved from the beginning and taken over and was well known at all times to its officers responsible for inspections and maintenance. To know of the headwall, in short, was to know of the risk it posed. As the correspondence to which I have referred demonstrates, the location and nature of the construction of the headwall was well known to the relevant Council officers from an early date.

It is submitted by the defendant that the assumed (or indeed even the actual) knowledge on the part of a grass cutting worker or someone from the Council who happened to notice the absence of a safety fence at the culvert is not actual knowledge of the Council officer charged with the responsibility of erecting a fence. This may readily be accepted. However the case for the plaintiff, as appears from the evidence of Mr Bewsher, is, essentially, that at the time that the Council approved the design of the road works, namely the culvert, it would have been apparent that a substantial fall from the edge of the roadway was a risk requiring a safety fence to obviate. It must have been the case that the dimensions of the wall and its position alongside the road were known to the Council engineers responsible for assessing and approving the design. Furthermore, as Mr Bewsher explained, a relevant officer of the Council must have inspected the site of the culvert at the point when the culvert was taken over as one of the Council’s assets. That officer must have been aware of the considerable danger represented by the constructed drop to which a safety fence was the only sensible solution. It is probable also that there were subsequent reports from inspections in 2000 and 2007 which concerned the physical state of the wall and, very likely, disclosed that the wall created a sudden drop only four metres or so from the edge of the road. As I have said, the mere physical description of the structure and its location was, of itself, actual knowledge of the particular risk it represented and which resulted in the harm suffered by the plaintiff. It is clear from Mr Bewsher’s evidence that, as he understood the way in which Hornsby Shire Council operated, it is likely that this knowledge was that of one (more likely more) of those charged with carrying out roadwork or considering carrying it out. I accept that such officers, although they knew of the headwall and the consequent risk to pedestrians and the lack of any safety fence, might not have thought about the safety implications of those facts but the construction itself created the fall and represented the particular risk.

In addition to these matters is the presence of the guidepost. This is shown in the photographs tendered by the plaintiff. The photographs taken by Mr Bewsher (and, for that matter, those tendered by the defendant) show that it had been removed. I think it reasonable to infer that this was because the danger was answered by the fence. However this may be, the inferences to which I have referred above provide strong support for the conclusion drawn from Mr Bewsher’s evidence that the defendant’s employees responsible for roadway safety were aware of the wall and the risk it presented. This evidence was not the subject of specific reference by either party, though in a question to Mr Bewsher, I brought the guidepost’s presence to their attention. I would have drawn the inference that the plaintiff has satisfied s 45 from the other evidence which I have summarised above. The guidepost’s presence at the headwall makes that inference even more certain.

It was submitted here that vegetation might have constituted an adequate safety barrier. There is no evidence that, at any time, such a barrier existed. The supposition that it did is mere speculation and it is scarcely likely at all events. It must be remembered that this wall was a substantial concrete structure. It beggars common sense to suppose that the defendant’s responsible officers could have placed vegetation as a barrier in place of a fence. The possibility merely has to be stated to be refuted. It was also suggested that the presence of such vegetation might have prevented some later observer from seeing the headwall and learning of the drop. The knowledge of the headwall and its danger was known at the time of construction or, at the very least, when it was inspected for compliance on being taken over. The risk was therefore actually known and it cannot be that the defendant can claim immunity if it was subsequently forgotten. At all events, I am satisfied that its knowledge would have been “refreshed” (if that were necessary) by the subsequent inspections referred to in its records. The failure of the defendant to call any relevant officer or proffer any evidence at all about the headwall strengthens the inferences to which this evidence – and that of the practices of the defendant – gives rise.

As Giles JA said in Leichhardt Council v Serratore [2005] NSWCA 406 –

I now move to the application of s 43A to the circumstances of this case. The first issue which arises is whether the liability of the defendant is based upon its “exercise of, or failure to exercise, a special statutory power conferred” on it. The defendant is a public or other authority and also the roads authority in respect of Cairnes Road. The drainage system and or erection of a fence along the verge of the road within a road reserve (which the plaintiff claims the defendant ought to have been undertaken) could only be undertaken by or through the defendant. It follows that the alleged act or omission of the defendant involves the exercise of a special statutory power. It is therefore necessary to consider whether the alleged act or omission – here, either the construction of the wall alongside the road without also constructing a safety fence to prevent persons falling over the edge or the omission to construct the safety fence when the defendant acquired ownership of the roadway including the culvert “was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider” constructing a wall where it was placed without building a safety fence or omitting to build a safety fence “to be a reasonable exercise of, or failure to exercise, its power”.

Since the defendant did not construct the wall but its consent to the construction was a prerequisite, the relevant issue is consent rather than construction but nothing turns on this distinction. For simplicity, it is sufficient to consider simply whether the defendant’s failure to construct a safety fence was unreasonable in the relevant sense. It is crucial to appreciate that the relevant question is whether no authority could properly consider the act or omission to be a reasonable exercise of or failure to exercise its power and not what the Court considers reasonable. (It follows, therefore, that the proposition put by me to Mr Gambi during submissions that a determination by the Court that an act or omission was unreasonable would be determinative was mistaken, as he rightly pointed out.)

The evidence of Mr Bewsher, which was not sought to be contradicted and in respect of which the defendant called no evidence for its part, was to the effect that the omission to construct a safety fence in the circumstances was completely unreasonable. It was argued by Mr Gambi, however, that it was necessary for the plaintiff to adduce evidence of what other roads authorities might or might not do when with faced with the issue presented by the presence of the wall. Although this evidence might be relevant (a matter about which I have some doubt), the statutory test is an objective one and is not to be determined by what most or some authorities might or might not do. At all events, the effect of Mr Bewsher’s evidence is that it has been for decades accepted by councils including, in his experience, the defendant, that headwalls such as that it Cairnes Road must be fenced. In some cases it might be necessary to weigh alternative means of dealing with a particular problem and it might be, for example, that an engineering solution which failed might for various reasons have been unreasonable to have been adopted but nevertheless it might have been one which the public authority could think was appropriate although it was not ideal. Pressures of time, urgency of finding a solution and expense amongst other reasons, might have fairly influenced the ultimate decision. In this case, however, the issue was a simple one. The risk would have been immediately obvious to any reasonable observer or any person who otherwise was aware of the construction and its location, whilst the cost of ameliorating the risk was, as Mr Bewsher pointed out, inconsequential – a few hundred dollars and involving little labour. As Basten JA pointed out (Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 at [278-279] (“Curtis”)), “the Court must view the matter through the eyes of a responsible public authority, having particular expertise and functions”. The defendant pointed to the evidence of Mr Bewsher that “Safety practice in terms of fencing around storm water assets … progressively changed over that period, the 90’s”. Mr Bewsher pointed out –

What Mr Gambi’s submission amounts to, as I understand it, is that, because the serious risk posed by the headwall (that must be immediately self-evident to any person who was aware of it) was ignored in 1979 when it was constructed, it follows that a road authority could consider the failure to fence “to be a reasonable exercise of, or failure to exercise, its power”. However, this is not the statutory question, which includes the crucially important qualifying adverb “properly”, so that the mere omission to fence as a matter of fact does not become a reasonable failure to exercise its power simply because that was a common practice. The importance of the qualification is noted in the following passage in Curtis from the judgment of Basten JA –

It was suggested to Mr Bewsher in cross examination that the distance between the edge of the road and the wall would be a factor to take into account when considering what to do about a drainage system and the headwall in particular so far as the construction of a safety fence was concerned. Mr Bewsher accepted that this was a factor but would not be a primary factor. Another factor would be the expected traffic volume. It was also put to Mr Bewsher that if there is (as was the case here) a safe passage on the other side of the road which does not have any safety issue whilst the side of the road where the wall was placed is un-curbed, un-guttered and essentially farm or bushland area, well away from the edge of the road, these would be factors which would be taken into account by a designer in recommending whether or not a fence should be put up back in 1979. Mr Bewsher thought it would have only a minor effect. The principal safety concern (as seems to me obvious) is the height of the headwall. Even if this headwall was located further away from the road than it actually is, Mr Bewsher would have regarded it as unsafe. In this regard he pointed to the fact that he had parked a car on the edge of the bitumen and observed that if a passenger had opened the door and taken two steps, he or she would have suffered a fall of three metres. He said this was clearly unsafe. Of course it was.

In this case the risk created by the wall alongside a road in a suburban area – albeit on the side of the road which is contiguous to bush and farmland – is so obvious that it does not admit of any nice or difficult calculation. In my opinion, no public authority properly considering the issue could reasonably conclude that it would be a reasonable exercise of its powers to decline to provide safety fencing at this site, despite the apparent widespread insouciance of councils (but not of engineers) at the time of its construction. At all events, by a time well before January 2011 the attitude to these risks had changed. I am satisfied that, when the defendant’s attention was again brought to the existence of the headwall (accepting, for the sake of argument, that it might have “forgotten” it, at the time of the inspections mentioned in the AMP, it would not have been regarded as reasonable by any authority in the defendant’s position to leave it unfenced.

It is therefore necessary to move to s 5B of the Act. I do not think it can be sensibly argued that the risk of someone falling over the verge was not foreseeable or that it was insignificant. The road was a public road, running alongside the edge of a significant suburban development and that, in the absence of a fence, a person might well not realise there was a substantial drop off the verge of the nature strip, even by day but certainly at night and, as a public road. It was likely to be used from time to time by nearby residents or, indeed, passing traffic, the risk being especially serious when light was limited as at dusk or, of course, night-time. Here, the precaution proposed was that of building a fence which, as I have pointed out, was simple and cheap to do. Subsection 5B(2) requires consideration of the matters enumerated in paragraphs (a) to (d) which, although non-exhaustive constitute a mandatory list of factors to which the Court is required to have regard. As in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 (to adopt the language of Leeming JA at [110]), the class of harm in the present case includes all injuries suffered from a fall which results in a pedestrian striking the rocky ground after a three metre fall. The probability that harm would occur if care were not taken by the erection of a fence to prevent someone from falling over the edge, is high. It is plain from the photographs that, even by day, it is not easy to see the edge, let alone the drop. At night, the verge itself would be very likely not noticed. Whilst it is not possible to predict how many pedestrians had walked along that particular part of the road and hence were exposed to the risk but fortunately did not go to the verge of the roadway, that a fall might occur is obvious in the absence of the precautionary safety fence. The physical injuries likely to follow from a three metre fall would be likely to be grave, possibly even fatal. The burden of taking precautions to avoid the risk of harm was on the defendant, which had created or was a party to its creation and was responsible for the wall. I do not accept the argument that a pedestrian such as the plaintiff should, even by night, contemplate that he might suffer a fall such as the headwall might cause. The construction of the culvert and the wall that supported the nearby roadway had a high social utility but this created the risk of harm in the absence of a safety fence.

It is rightly submitted that a road authority is not obliged to exercise reasonable care in the abstract, still less to ensure that a road be safe in all circumstances: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [46]. In this regard it is necessary to take into account that even reasonably careful people may, on occasions, act without advertence of risk or taking particular notice of their surrounds, especially where there is no reason to expect the presence of a particular risk of considerable danger, such as the unmarked culvert. It is necessary also to consider that the degree of thoughtlessness as well as the ordinary distractions to which people are subject when, as here, they are going about ordinary activities such as walking their dogs. Nevertheless, as Gaudron, McHugh and Gummow JJ said in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [160], “a proper starting point may be the proposition that the persons using the road will themselves take ordinary care”. Of particular help in the present case is, I found, the following passage from their Honours' judgment (omitting references) –

Here, as it seems to me, there is no reason for the plaintiff to have apprehended the possibility that there might be as it were, a man-made cliff constructed in such close proximity to the road, the edge of which was, at all events, obscured by grass and some shrubbery as well as by darkness. Had he tripped over a tree root and injured himself the defendant would almost certainly not be liable but there was nothing here that might have suggested to the plaintiff (or indeed any pedestrian in his place) that he had any reason to fear that he might fall off the side of the verge. There is nothing in the circumstances here that suggests that the plaintiff did not take reasonable care for his own safety. On the contrary, I think that he was acting as any ordinary pedestrian might when walking their dogs. Of course it is trite that the enquiry is not to be undertaken in hindsight but must be answered prospectively.

It is submitted that the defendant could not have reasonably foreseen that a pedestrian, excising reasonable care for his own of her own safety, would walk through overgrown grass or bushes off to the side of a grassed verge without the aid of artificial light, such as a torch or even a mobile telephone. I do not agree. I am doubtful, at all events, that an ordinary torch would have revealed the drop. It would not be in the mind of a pedestrian that they might fall off the verge in the way that happened to the plaintiff. It was not suggested to the plaintiff that he was not keeping a reasonable lookout for where he was stepping. The evidence about the extent of the overgrown grass or bushes was exiguous but there was no suggestion that it was so dense as to prevent him seeing some obstacle or otherwise might constitute a danger. The danger here was, of course, the culvert. Although it is true that the plaintiff was walking at night-time, the evidence is not that he was in complete darkness. Nor was this put to him, though he agreed he could not see the ground. But he was able to see his dogs walking in front of him and, indeed, was watching them.

The defendant brought to my attention the judgment of Garling J in Benic v New South of Wales [2010] NSW 1039 where his Honour dealt with the phrase “not insignificant”. If I may respectfully say so, his Honour’s statement as to the appropriate approach is clearly right. The defendant correctly submits that the mere possibility that serious harm might be caused as a result of an accident is insufficient to fulfil the requirement. However here, as I have said, there was more than a mere possibility that a pedestrian might walk in this area and might not see the headwall drop. The defendant relies on the fact that there is no evidence of any notification to the defendant of any prior injury or incident involving the headwall. There is no evidence of this being the case. It is not known either whether any warning was given by someone who did not have an accident but came close. That does not seem to me to be of any real significance. As I have repeatedly stated, the mere position of the headwall and its character constituted a very serious and evident danger. The risk that a pedestrian might come across it and that he or she would fall and be seriously injured was substantial. Nor do I accept the submission that overgrown grass or bushes would have provided a natural barrier to a pedestrian walking along the path which would take the pedestrian well away from the edge of the headwall. I have already dealt with this argument. No such barrier existed. At all events, the circumstances of this accident, which were unremarkable and foreseeable, demonstrate that whatever vegetation present, it was not a suitable or adequate response to the danger.

I come now to s 5D of the Act which has the effect that, assuming a breach, a plaintiff must establish that the breach was a necessary condition of the harm he suffered. Putting it otherwise, had the breach not occurred the fall would not have happened. This is the “but for test” applicable under the section: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [55]; Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [132] per Tobias JA (Beazley JA agreeing). The plaintiff’s argument is that the accident would not have occurred had the defendant erected a fence preventing access to the edge of the headwall as was subsequently done. The headwall is, as I have described it, a flattened U-shape so that erecting a fence across the apex of the headwall would not have prevented the plaintiff from falling into it if, as the defendant submits the plaintiff appeared to assert, he approached the headwall from the side as he walked along the path, parallel to the edge of the road reserve. The report of Mr Bewsher referring to the safety fence states that it was “erected on the grass verge between the headwall and the roadway bitumen… [and was] located 0.3m from the face of the headwall”. A photograph was tendered as part of the report which appears to cover an area extending past the apex of the headwall, as submitted by the defendant, but the photograph is not clear enough for this to be positively stated. As I read Mr Bewsher’s report, the fence extended along the length of the headwall. He was not cross-examined on this question. Furthermore, a photograph tendered by the defendant shows the fence close to the wall with no room to pass behind it. There is no adequate evidentiary basis for the submission as to the placing of the fence or, for that matter, for the submission that he would have, as it were, edged along the edge to more or less the centre of the apex, from which point it is evident he fell. It is true that the plaintiff approached the headwall from the side but he was not cross-examined to suggest that he had walked along the edge or taken a path that would have taken him behind the fence. At all events, the question is not whether the fence that has now been erected would have sufficed to prevent the fall but whether the fence that ought to have been erected would have done so. I am satisfied that this is the case.

I now come to the question of contributory negligence. It seems to me that of particular significance is the requirement in para 5R(2)(b) that it is necessary to determine the question “on the basis” of what the plaintiff “knew or ought to have known at the time”. Here, there can be no doubt that the plaintiff did not know of the presence of the headwall nor was there anything that suggests that he ought to have known of its presence. The mere fact that he was walking by night in an area where his view of the ground was obscured both by darkness and the presence of vegetation naturally exposed him to some risk that he might miss his footing or stumble over a tree root or perhaps injure himself on some item carelessly abandoned there by some member of the public, but there was no reason that he might think that he was walking close to the edge of a culvert. In my view, the plaintiff acted as an ordinary reasonable person might when taking their dogs for a walk alongside a public road where there was a grassed verge. He was not careless for his safety. He was not like the pedestrian in Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97 who was aware of the likely presence of motor vehicles on the road which he was crossing and did not take adequate care for his own safety. The plaintiff was not guilty of contributory negligence and there should be no deduction from his damages on this account.

The plaintiff’s statement of claim alleges that he had broken his lower legs, his left wrist was badly splintered and bone misplaced, four of his ribs were fractured and he sustained severe bruising to the left knee which was badly swollen. The plaintiff alleges that a plate was inserted in his left wrist to hold the bone fractures in place and he was told that this might have to remain indefinitely and he might not have the full function and strength of his left wrist for the rest of his life. The plaintiff remained in hospital until 9 February and was released to home with special crutches, needing a wheelchair to assist with mobility around the home. In an evidentiary statement dated 29 June 2016 and tendered in the trial, the plaintiff listed the following injuries: broken legs; fractured left tibia; fractured right tibia; broken wrist requiring reconstruction with titanium plate support; fractured left radius; broken ribs; severe bruising and tissue damages to both knees and legs; head injury (possible concussion); Post Traumatic Stress Disorder and exacerbation of previous depressive disorder. The Westmead Hospital imaging exam report of 30 November 2011 shows the following –

It will have been seen that the radiology does not support the plaintiff’s claims of a fractured left tibia, nor were any rib fractures identified. However, he complained, as I understand his evidence, of painful breathing and says that he was informed that there were hairline fractures to four of his ribs but that they would heal themselves over time. It was not put to him in cross-examination that he did not have this injury and I accept that he did. I am unclear why the plaintiff has claimed that he fractured his left tibia although I accept that his left knee had suffered soft tissue injury (as described above) that caused intense pain, in time subsiding but causing pain during times of weather change, especially when he tries to sleep. These pains also occur where he had other bruising, including to his elbows (although this was not particularised). The injuries identified by the ambulance officers were noted as to his left wrist and right ankle. It was put to him that he complained about nothing else. He conceded that he had been asked “certain questions and I would have responded” but I accept he was in excruciating pain and does not now recall what he said. He told them that he could not move his chest because of intense pain. In my view, the most reliable evidence of the injuries the plaintiff suffered is in the hospital material which has been tendered and which I have set out above, although I would also accept his evidence about the hairline fractures of his ribs and his complaints of painful bruising. He went several times for hand therapy for his left wrist and also to the physiotherapist in relation to his right ankle but cannot remember when he stopped. It was put to him that by the beginning of May, about three months or so from the fall, at the last physiotherapy session he had in respect of his right ankle told the staff that he had no significant pain in his right ankle; he did not recall this but did not assert that he did not say it; there was no evidence tendered by the defendant of this conversation. He was asked whether, by 3 May 2011 it would be fair to say that he was able to move around, walking etc with no pain. He answered, “No, not no pain, I was able to walk but with pain”. It was suggested to him that he had told hospital staff he was mobilised with no pain and answered –

On 18 February 2011 he attended his general practitioner, Dr Machado, who noted left leg and foot swelling and a left knee infection and swelling controlled with antibiotics. There was swelling present with healed wounds on the left knee but otherwise the knee was normal. He was prescribed pain medication, initially Oxycontin and Endone but this had ceased by March 2011 and he was prescribed Panadeine Forte. On 19 May his prescriptions were continued. (He also had medication for depression but I will come to this in due course). The doctor noted a complaint of difficulty in sleeping. As at the end of October 2011 he had ceased all medications except Lansoprazole (but there is no evidence as to what this medication was for).

He stopped taking Zoloft in about mid 2012 but his symptoms of depression returned by August 2012 and he resumed anti-depressant medication. His complaints, essentially relating to depression, were noted by Dr Gibian on 4 September 2012 as, “Obvious symptoms of depression with constant tiredness, low self-esteem and lack of motivations”. By 3 September 2013, following visits to Dr Henson, Dr Gibian noted that the plaintiff seemed more enthusiastic about seeking “further IT course to bring his skills up to date and maybe even being able to work in the future”. However, as at 1 April 2014 Dr Gibian noted, “Not really doing anything in recent months, no work on his proposed IT business”. Dr Gibian commented, “He now claims that he was unconscious for some hours after the fall causing some delay before he obtained assistance”. Dr Gibian took no real history and she noted the practice was not involved in his care following the accident. I do not give any significance to the implication of a delayed complaint given especially the inferences that follow from the likely time of the accident and that of the 000 call. Although Dr Gibian’s clinical notes were said by the defendant to be significant, I do not find them informative on this issue.

The plaintiff also complained of suffered arthritic pain in his arms and legs on a daily basis which he attributed to his injury, especially at night preventing the ability to have restful sleep. Whether “arthritic” or not, I accept that these pains were due to or exacerbated by the injuries suffered in the accident.

In February 2015, referred by Dr Gibian, the plaintiff was seen by Dr Scot Newman, an orthopaedic surgeon, in December 2014. The plaintiff gave Dr Newman his view of how he was injured by falling down what was described as a “drainage hole” and reported sustaining a number of injuries including to his left knee, his ribs and left wrist together with a fracture of his left ankle which was managed for a short period in a cast and thereafter a CAM boot, but required no operative intervention. The history relates that, over time, symptoms relating to the ankle settled but the plaintiff reported a continuing sensation of the joint “tiring easily” and there was some deep-seated discomfort after he had walked for about an hour whilst, at night, a feeling of tightness “or pulling” which could disturb his sleep; although there was no ongoing swelling or stiffness, there was a feeling of weakness and instability; he was relatively tolerant of uneven surfaces; he no longer took analgesics for the ankle. The doctor noted that he was on regular anti-depressant medication and was in relatively good general health, aside for his depression. Dr Newman’s opinion was that the plaintiff’s residual pain and instability was “almost certainly on the basis of an ATFL [anterior talofibular ligament] rupture, which would have occurred at the time of his fall”. Dr Newman said an MRI evaluation was necessary and, in February 2015, an MRI indeed demonstrated an evulsion fracture, the ATFL lesion providing the basis for the plaintiff’s instability. This could be corrected by a “simple lateral ligament reconstruction”, which would require two post-operative weeks of cast splintage and no weight bearing, with an ensuing four weeks wearing a CAM boot, when he could weight bear. Physiotherapy would also be necessary. (The plaintiff has not undergone this surgery. He was not questioned as to why this was so and I surmise that it may be related to his depression.) In mid-January 2016 the plaintiff was seen by Dr Brian Stephenson, orthopaedic surgeon, for the purpose of preparing a medico-legal report. Dr Stephenson noted the plaintiff’s complaints of aches in the left chest wall and left wrist and elbow and referred to the Westmead Hospital Radiology reports which I have set out above. He concluded –

The plaintiff had informed Dr Stephenson about his employment in software programming as a computer specialist until 2000 and his subsequent major depressive condition (a subject to which I return shortly). The plaintiff told the doctor he felt he was on the road to recovery when the fall occurred, saying that by 2010 he thought he could start a business, for example lawn mowing or gardening or computer support at home. He told Dr Stephenson that, just prior to the accident, he started a lawn mowing business and this had progressed about 5 months, by which time he had 25 clients, but after the accident on 29 January, he was unemployed. In a subsequent report of April 2016 Dr Stephenson confirmed the restriction he had noted on his previous examination of the plaintiff.

The plaintiff was referred to Dr M. Perko, orthopaedic surgeon, in June 2015 for review of his left wrist fracture. He complained of occasional aching, altered sensation in the hand and tenderness associated with the surgery site together with less strength than normal, together with weakness and occasional giving way in the right elbow which fatigues more easily with pain on the lateral joint line, particularly with activities such as using a whipper-snipper. Dr Perko thought that the elbow demonstrated normal motion and a minor amount of lateral joint line tenderness with no crepitus or other mechanical signs. He did not think any further intervention was necessary for his left wrist but, if the symptoms of aching and motion restriction were a problem, removal of the plate would help this, without there being an immediate need to proceed.

The plaintiff saw Dr F J Harvey, orthopaedic surgeon, in January 2016. Dr Harvey recorded the following physical complaints –

Overshadowing even the plaintiff’s psychiatric condition is his diagnosis of Idiopathic Pulmonary Fibrosis in December 2015 for which he is being considered for lung transplantation. Professor Bryant, who was asked by the defendant for an opinion as to life expectancy for people suffering from this very severe illness, pointed out that, as at the time of his report (November 2016) the current waiting time for lung transplantation is between six to eighteen months and at least 10-15% of patients on the waiting list will either become so sick the transplantation become impractical or they will die from their lung disease before a transplant becomes available. Current survival statistics are that, in patients between 50-60 years (such as the plaintiff), 83% of lung transplants will survive for one year, 67% will survive for three years and about 50% will survive for five years. In the absence of more detailed information about the plaintiff’s current clinical condition, the professor was unable to provide an estimate of the plaintiff’s life expectancy: his current lung function tests are not available and he had not seen any information regarding the deteriorating grade of his lung function or whether there were any associated changes or pulmonary hypertension or cardiac impairment. He concluded –

As already mentioned, the plaintiff suffered what might in lay terms be called a “breakdown” or “burn out” caused by his work in about 2000. It is unnecessary to consider the precise cause of the development of his illness which came to the attention of his general practitioner, Dr Hadfield, in mid-December 1999, when he presented in an extremely agitated state having had frequent episodes of chest pain over the previous week. He went on sick leave from work and continued to display anxiety related symptoms through March and April 2000. In May 2000 Dr Hadfield examined the plaintiff and found significant symptoms of combined depression and panic disorder. He diagnosed a major depressive illness together with an acute stress reaction, confirmed by Dr Timney, a psychiatrist, who considered that the cause for his condition “followed a classical picture … known as ‘burnout’ which … is an occupationally acquired syndrome usually caused by a combination of long hours and high pressure situations”. Dr Hadfield considered that the plaintiff’s prognosis was guarded and very dependent on availability of continued psychiatric treatment. He was not fit for work. Following this examination, the plaintiff was seen by Dr Hadfield some 62 occasions up to 10 June 2004, without change to his diagnosis or the poor prognosis. The doctor concluded in June 2004 –

I should mention that the plaintiff was seen by Dr Robertson in March 2003 who found that he had remained depressed and often had suicidal ideation. He thought the plaintiff’s depression was significantly worse than when he was last interviewed some 18 months previously. The chronicity of his depression, as well as problems at home, is a poor prognostic factor. Dr Robertson saw him again in July 2005, disagreeing with the opinion of another psychiatrist that the plaintiff suffered from schizophrenia or perhaps schizo-affective psychosis and affirming his opinion that the plaintiff suffered from a Major Depression with melancholic features. Dr Robertson thought that his condition could be improved significantly if he was compliant with a psychiatric program but, even so, such a long illness made it unlikely that he would make a full recovery. Of course, the illness itself meant that undergoing such a program was very difficult for the plaintiff to achieve. When Dr Robertson saw the plaintiff in March 2007, he remained depressed with no improvement. The doctor opined that the “chronicity of his depression is now such that it seems very unlikely that he will ever recover, even if vigorous treatment were to be instituted”. He could not see him getting back into the workforce in gainful employment of any kind and noted that he had not worked since failed attempts to return to work in 2001. Other psychiatric reports were tendered as to the plaintiff’s condition at this time which were, for relevant purposes, substantially to the same effect. A number of reports from Dr Gibian were also tendered in which she appears to express considerable scepticism about the plaintiff’s motivation, and, perhaps, even the extent of his illness. A fair reading of her reports implies, I think, that Dr Gibian gave insufficient weight to the effects and severity of the plaintiff’s depressive illness. Of course, she was not a psychiatrist.

The plaintiff saw a clinical psychologist, Mr Jupp who confirmed the diagnosis of the other doctors and considered that “the chronicity and severity of [the plaintiff’s] disorders with the apparent lack of success of previous treatment necessarily points to a difficult road to recovery”. However, Mr Jupp thought intervention in the form of relatively long term supportive counselling, initially to treat his dependency on alcohol, would help him to gain better control of self-destructive impulses stemming from his illness. It is evident that the plaintiff had developed severe problems with binge drinking (which in his evidence he tended to minimise).

The plaintiff’s evidence is that he had started to improve perhaps some five or six months before the accident, doing some gardening work and thinking that he might return to IT. Certainty, this optimistic contemplation of the future was a positive indication. However, he said that the accident was such a terrible experience that it set him back to the state he was in before he had started to improve. The plaintiff gave the following evidence –

The plaintiff was referred to Dr Robertson by his then solicitor for a medico-legal assessment and report for the purpose of the present litigation. Dr Robertson saw him on 8 January 2016. The doctor noted that he had seen the plaintiff on number of occasions between August 2001 and March 2007 in respect of his earlier litigation. He noted that when he first saw him in August 2001 there had been an improvement in his condition, well short of recovery, but subsequent assessments indicated that his depression had worsened and the doctor had made (as previously mentioned) a diagnosis of a Major Depressive Disorder with melancholic features and gave him a poor prognosis for recovery. His condition did not significantly change up to time when he last saw him in early 2007. On the January examination, the plaintiff gave a history of there having being a gradual improvement in his depression, well short of recovery but sufficient that in 2010 he decided he should try to do some gainful work and advertised his services for lawn mowing and garden maintenance and also for solutions to computer problems. He was working at his lawn mowing business in the latter part of 2000 (sic, but a typographical error for 2010), he said and claimed to be quite busy with 25 regular customers. The plaintiff told Dr Robertson about the accident in January 2011 and said that, following it, he became severely depressed. He experienced gross initial insomnia associated with worry and feelings of hopelessness and would then over-sleep. His appetite was poor and he lost 15-20 kilograms in weight. Prior to the fall, the relationship with his wife had improved but since the accident they had not slept together. He felt that life was not worth living and had suicidal ideation at times, this becoming more evident over Christmas 2015 when his dog died. He suffered “flashbacks” to the accident, that is “vivid involuntary memories of the accident”. He experienced nightmares, in the form of a replay of the accident and these occurred most nights soon after the accident and now on average two to three times a week. He had phobic anxiety about walking in the streets after dark. He was socially withdrawn but now tried to go out and have a drink with friends. He spoke of loneliness and frustration and did not see any future for himself. He becomes upset if he has to talk about the accident.

Dr Robertson’s opinion was, without doubt, the plaintiff had suffered a PTSD as a result of the accident, the circumstances of which and his reaction after he regained consciousness satisfying the stressor criteria for PTSD and he subsequently developed typical symptoms of the disorder. Consequently, his pre-existing depression became much worse after the accident for a couple of years though it appears that this had now improved to a considerable degree. However, the prognosis for his PTSD in terms of recovery is decidedly poor, noting the continuation of symptoms and the lapse of five years since the accident. The doctor also thought the plaintiff suffered a significant concussional head injury in the accident but both retrograde amnesia and post-traumatic amnesia were brief, consistent with the finding of no traumatic brain injury at the time of his admission after the accident. As far as resuming mowing lawns and managing gardens or other work of a physical nature was concerned, this was within the expertise of an orthopaedic surgeon to consider, as it would be necessary to take into account the injuries he suffered. However, his PTSD and residual depression would make it difficult for him to work as an employee. Although he could possibly do some part-time work with computers and IT, the pace of change in these fields could mean that he has insufficient up-to-date knowledge and experience. Taking these factors into account, the doctor said that he would be “very surprised” if the plaintiff would ever be able to undertake gainful employment. Dr Robertson said that, when he saw the plaintiff in January 2016, he was quite surprised in the improvement relative to 2007 and previously “to see that he had improved to the point where he was able to do that sort of work” (I think, the attempt to resume computer work – as distinct from undertaking the work itself). He rejected the possibility that, before the accident, the plaintiff had suffered from PTSD and expressed surprise that Dr Henson (whose opinion I discuss below), whom he knew as a good clinician in terms of diagnosis and treatment, had diagnosed the plaintiff at one point as suffering from PTSD as a result of his work related problems. As far as Dr Smith’s report was concerned, which Dr Robertson reviewed, he said that he was “astonished that he failed to diagnose PTSD” following the fall. He thought, from his report that Dr Smith did not appear to have questioned the plaintiff sufficiently about what his thoughts and feelings were after he fell into the pit and what happened then. Dr Robertson thought that this might be why he missed the diagnosis.

In August 2013 the plaintiff had been referred to Dr Kenneth Henson, a consultant psychiatrist, for treatment for his psychiatrist condition, who concluded –

Dr Henson was asked in cross-examination about his recollection of asking the plaintiff how he felt emotionally or psychologically once he had become conscious. The doctor said that the plaintiff’s recollection was that he felt confused because he initially couldn’t understand what was happening, where he was, and then he realised that his two dogs were with him and one of them was whimpering. He had difficulty moving and described finding his mobile phone and trying unsuccessfully to ring his wife. He gave an account of the ambulance going by and how he managed to get them to stop at the right place. The doctor added –

On referral from Dr Hadfield the plaintiff was seen by Dr John Baker, Psychiatrist, in October 2004. He appeared depressed in his manor, sullen, irritable and agitated. He was a reluctant and vague historian. “He told me to read all of his reports and then I would ‘understand everything’”. The mental examination was as follows –

Dr Gibian had referred the plaintiff to Dr Gordana Jovanova, another psychiatrist, who saw him in March 2013. It is not necessary to deal with this report as it is, as I read it, consistent with the other reports dealing with his psychiatric condition at this stage.

Mr Jupp reported in July 2013 having seen the plaintiff in mid-June, early July and shortly before the report. Mr Jupp had the same view about his capacity for employment as he expressed in his 2009 reports and repeated his strong reservation about his capacity to deal with the obstacles and frustrations of starting up a business and thought he was incapable of presenting himself to a potential employer in the IT area, let alone gaining and maintaining employment in IT “or indeed in any other area”.

On 9 September 2015 the plaintiff was seen by Dr Selwyn Smith, Consultant Psychiatrist, on behalf of the defendant. He obtained a history broadly consistent with those which I have already mentioned although extremely briefly reported. He repeated what he had earlier said to other doctors that he had been recovering from his previous depressive disorder but the accident caused him to experience a setback so that his current psychological state was equivalent to what he experienced in the early 2000’s. He stated his depression had worsened. Mental state examination is as follows –

Dr Smith was called to give evidence. I accept that he had extensive experience in the diagnosis and treatment of patients with PTSD. He considered the question of whether the plaintiff had suffered from PTSD as a result of the accident, having regard to the circumstances. He said that the diagnosis was excluded because the plaintiff informed him that he had no memory of the accident that occurred and, if one has no memory of the traumatic events, by definition, a PTSD could not be diagnosed. When asked to explain this evidence, Dr Smith said, in effect, that he understood that the plaintiff had lost consciousness and had no memory of the fall and then he was able to use his mobile phone and telephone for assistance. He went on to explain –

Dr Smith went on to explain that trying to ring his wife and having concern for his dogs and ringing triple-0 and guiding the ambulance officers was inconsistent with the feeling of hopelessness and despair; he was not helpless.

The plaintiff said (in questioning the doctor) that he had said to him –

Dr Smith said that, although the plaintiff may have woken up in a nightmare and sweating and had dreamt that he had taken a step and fallen into a hole, that this was not the definition of a flashback. He said that the plaintiff did not describe what he deemed to be a true dissociative flashback episode.

Dr Smith agreed that the treating doctors, such as Dr Robertson and Dr Henson have an advantage of a longitudinal perspective of a patient’s clinical process, he considered that there was significant weight of contrary information that went against their opinions and, despite their advantage, it was not sufficient to lead him to defer to their view. Dr Smith “conceded that if indeed that was true that he was overwhelmed at times with feelings that he would die, that would equate [to the clinical criterion]… but I didn’t get that history. I didn’t get the feeling, tone of a Post-Traumatic Stress Disorder situation” and the doctor (justifiably) referred to his active involvement in the PTSD programs at several hospitals. He said that “there is a tone, a general tone, a tenor associated with patients who have Post Traumatic Stress Disorder. They present very differently to Mr Oberlechner’s presentation”.

I asked the doctor whether he had asked the plaintiff what he was feeling and what thoughts went through his mind when he woke up to the time that he was rescued. Dr Smith said –

On 16 April and 1 May 2015 the plaintiff attended for examination by Dr Jane Lonie, Clinical Neuropsychologist, pursuant to Dr Henson’s request for an assessment and opinion of a potential Acquired Brain Injury. The history that the plaintiff gave to Dr Lonie was inconsistent with that which he had previously given on a number of occasions, in particular, that his first recall after the fall “is of the ambulance arriving and ‘cutting him out’”. He has referred, as I previously mentioned to recovering consciousness, discovering his injuries, attempting to telephone his wife, ultimately contacting the ambulance and directing them to his location. Given the fact that he had given these details on a number of earlier occasions it is not clear why his account changed to Dr Lonie but he was not cross-examined about it and, aside from noting the inconsistency, I draw no inferences from it. Otherwise the history of the effects on him of the fall is not significantly different from other accounts. The hospital notes which were provided by the plaintiff to Dr Lonie, which recorded a denial of losing consciousness or suffering any head injury in the fall. Dr Lonie’s neuropsychological findings were as follows –

Dr Lonie noted that the plaintiff performed, for the most part, at average levels for a man his age but the speed at which he was able to complete low-level tasks was variable, ranging from low-average to average whilst his performance on measures of ability to learn and retain new information of a verbal nature was variable and he displayed some mild consistent difficulties taking on board, or registering new verbal information when it was presented to him in an unstructured format for the first time. This rate was mildly deficient while his ability to recall newly learned verbal information ranged from average to mildly deficient. Dr Lonie thought it was unclear whether his fall was associated with any loss of consciousness. There was no neuroimaging evidence of brain trauma and no other relevant symptoms. What she described as his “mild cognitive difficulties” were observed inconsistently across different measures of similar functions likely related to lapses in his attention as opposed to impairment of his ability to retain new information as such. She pointed to the possible significance of his current mood and state, that is to say, as I understand it, his severe depression and anxiety and possibility his alcohol consumption and possible contribution of sleep apnea to his cognitive complaints.

After carefully examining the reports and the plaintiff’s own consistent accounts of what he felt at the time he recovered consciousness, I am satisfied that it would be highly probable, had Dr Smith asked him about what he was feeling after he fell, that he would have given the same history as I have summarised and they refer to. After all, there was every reason for him to do so. I am therefore satisfied that Dr Robertson’s surmise that Dr Smith had not sought a detailed history which might have disclosed what Dr Smith himself agreed satisfied at least one (I think the major one) of the diagnostic criteria. So far as Dr Henson’s diagnosis of PTSD resulting from the plaintiff’s “burnout”, is concerned, I note that he saw him for the first time in August 2013, well after the fall, whilst Dr Robertson had also seen the plaintiff on many occasions before that event. For those reasons, I prefer Dr Robertson’s opinion that, although the plaintiff suffered Major Depression with melancholia as a result of the crisis at his employment, he did not have PTSD at that time. I am persuaded that it should be concluded that the plaintiff suffered and suffers from PTSD as a result of the fall.

I should mention, also, that although, in the result, I do not think it has been established that the plaintiff suffered from Acquired Brain Injury as a result of his fall, I am satisfied that he had been rendered unconscious. This is the only conclusion that makes sense from the plaintiff’s account of what happened and the times involved.

Returning to the plaintiff’s account, in evidence he said that he thought it was 10 or 15 minutes or so after he had woken up and had the feeling that he was going to die that he found that he could move his right hand and noticed his telephone in his pocket. That was when he tried to ring his wife, who did not answer and then triple-0. I do not think it significant that he did not tell the ambulance officers or, apparently, staff at the hospital that he had lost consciousness. I think he was very confused and considerable pain and his loss of consciousness only really was appreciated by him once he had an opportunity to think about the time that elapsed between his leaving home and his making the triple-0 call (of course, evident from his telephone memory).

After Mrs Oberlechner went about her ordinary routine, she went to bed, although her husband was not home, as he would normally just return when he had finished his walk and go to bed. She said that she was awoken sometime in the early hours after midnight by a knock on the door by ambulance officers telling her of the accident and bringing her to the injured dogs. She was taken to the accident site and was there when the plaintiff was retrieved from what she described as the stormwater pit and taken to Westmead Hospital. The ambulance records show the job was booked at 12.34am. Putting the times and distances together, it seems likely that the plaintiff was likely to have been unconscious for an hour or so followed by a period when he was dazed and then managed to make the calls.

(I should mention that the ambulance notes state that he appeared to be tipsy. The plaintiff was not cross-examined as to this and this may have been a surmise if there had been a smell of alcohol on his breath and, because of the accident he seemed confused, not altogether an unlikely possibility. However this was not an issue in the case and there is no need to further discuss it.)

It seems reasonably clear from the medical evidence and is consistent with the plaintiff’s evidence that, before the accident, although there had been some improvement in his chronic depression, the plaintiff was certainly unable at that time to return to his earlier work as a computer expert. I accept that he was undertaking some lawn mowing and gardening work, with his wife’s assistance during the time he was disqualified from driving (which occurred in March 2010, for a three year period). He said that for some months before the accident he had 20-25 regular customers for whom he was doing gardening and lawn maintenance work, although he had not submitted a tax return because, after the accident “I just let everything go”. The plaintiff told Dr Harvey that he did no work from 2001 until about 5 months before the accident, when he began his own business lawn mowing and gardening and, by the time of accident he was working about 40 hours per week, although the hours were very variable. He also said that he was doing some casual computer support which occupied him 10-15 hours per week. It may be that he was attempting to obtain some work but I am satisfied he in fact did not do this work and, indeed, that he would not have had the capacity to do so. (He was not cross-examined on this history, I think because (rightly) it was seen as immaterial.) He hoped also to return to IT work by getting the equipment he needed “and skilling himself up”. He printed some brochures on his computer. He purchased some computer equipment and said that he kept receipts for this. However, his evidence about this was rather vague. I asked him –

He described starting to feel “reasonably good” after years of seeing therapists and taking medication and so on, “where, yes, I am going to have another go at life now and things, but when something like the accident happened, it just throws you right back to – in the back in what like feels like a hole, literally, like a mental hole”. The plaintiff gave no evidence that suggested that, apart from acquiring computer equipment he had made any attempts for retraining, either by taking a course or purchasing texts or other relevant material.

He said to Dr Gibian, as at 23 August 2012, that he was working mowing lawns, driven by his wife but that there was no work in winter and it had been too wet in summer for much work. In her notes of 9 September 2012, Dr Gibian said the plaintiff “was working a little over summer [and with his wife’s] urging and transport, he was mowing a few lawns. Of course this petered out in winter. He is due to get his licence back in March 2013. I urged him to consider returning lawns and gardening to keep the few customers he already has, and look forward to building his business once he can drive again”.

In my view, prior to the accident, there was no prospect except in the most unlikely event that his mental condition improved to a considerable degree, that he would have been able to undertake anything like the work he had previously done. I think that, at least at one level, he accepted that it was at least improbable that he would be able to undertake that work even if, on a good day, he genuinely hoped and perhaps to some degree believed that he might be able to do so.

I accept the plaintiff’s evidence about the accident and its psychological sequelae as having a significant impact on his capacity to work and his hopes and aspirations and that it did constitute a worsening of his mental functioning and increased the severity of his depression. For the reasons which I have already expressed, I also accept that the accident caused the additional burden of PTSD. However, even had it not been for the accident and the PTSD, I am not persuaded that he would probably ever have been able to regain the capacity even for part-time clerical work, let alone require the specialised knowledge necessary to work in the IT field or return to his previous level of expertise. In short, I think the probability is that, even had the accident not occurred, he would not have developed the capacity to do more than what I conclude – on the whole of his evidence – was seasonal and somewhat desultory lawn maintenance and gardening work, to a significant degree less than that which he was able to eventually do prior to the accident.

There is no evidence from the plaintiff as to what he earnt as a result of his lawn maintenance and gardening business, nor even as to the hours that he actually worked, except for what he had said to Dr Harvey and Dr Gibian. This problem is discussed by Heydon JA in New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 (“Moss”) at [66] et seq. In particular, I note the observation quoted by his Honour of Reynolds JA in Yammine v Kalwy [1979] 2 NSWLR 151 at 155 that “a tribunal of fact can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity” which, as I see it, must also apply to the judgment and assessment of the value of the remaining capacity. Heydon JA in Moss (at [71]) pointed to the process of estimation of possibly as “an imprecise and indeterminate one to be carried out with very broad parameters…[and the] trier of fact may have to form conclusions on ‘slender material[s]’” (referring to the majority judgment of Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643; [1990] HCA 20). This will sometimes involve “guess work rather than estimation”: Menzies J in Jones v Schiffmann (1971) 124 CLR 303 at 308.

To sum up the position, the plaintiff was able to undertake lawn maintenance and gardening work for 20-25 clients on a seasonal basis for about 40 hours a week but this was very variable; how many hours this averaged, say, in a month, or how much of the year the work was available can only be guessed at. He had no relevant physical disability before the accident but was affected by a severe depressive illness. Taking into account the extent to which his illness would have adversely affected his ability to go into the marketplace to obtain work and because it seems clear his capacity to maintain social relations and accept direction was also somewhat limited but noting that being able to maintain a client base of 20-25 bespeaks some ability at organisation and drive to and keep find work, I would conclude, doing the best I can, that he had the capacity to work, on average, about half a week but this work would only have been available for about eight months a year. I consider that the plaintiff would most likely have continued this work had it not been for the accident. I have referred to his hope that he could return to working in IT, to which he had been directing some of his energies before the accident, but I regret to say I think that this was a most unlikely real possibility. Accordingly, the relevant work capacity as at the accident was that which enabled him to undertake the lawn maintenance and gardening which I have described and which he would have continued. Having regard to the physical consequences of the accident, some of which linger and affect his ability for the physical work, such as lawn maintenance and gardening must necessary entail, together with the added disability inflicted by his PTSD, I consider, for all practical purposes, that the plaintiff was, after the accident, practically incapacitated from anything more than occasionally able to earn only inconsequential sums.

In the absence of direct evidence, I think it is appropriate to calculate his economic loss by reference to male Average Weekly Earnings (rounded to the nearest dollar). As at 17 February 2012 this was $1233. I think that, accepting a measure of increase from 29 January 2011 at about 5 per cent, yields average weekly earnings of about $1170 (hence a capacity to earn about $585 a week as at the date of his accident). Subsequent figures are, as at 18.5.12, $1228, as at 16.11.12, $1265, as at 17.5.13, $1286, as 15.11.2013, $1307, as at 16.5.14, $1316, as at 21.11.14, $1320, as at 20.11.15, $1367 and as at 20.5.2016, $1386.

For past economic loss I think the most reasonable calculation should be based on the average of AWE from the date of the accident to judgment, namely $1300, one half of which is $650, thus 209 weeks (the total reduced by one third to account for the four months each year not working) at $650 a week, giving $135,850.

It is necessary to refer to s 13 of the Act which provides –

A peculiar feature of the plaintiff’s position constitutes a very significant matter for considering his future, namely the difficult evidence concerning the plaintiff’s life expectancy, which has become problematic because of his diagnosis in late 2015 of Idiopathic Pulmonary Fibrosis. He has not yet, as I understand the evidence, been accepted as an appropriate patient for lung transplantation but, as Professor Bryant points out, at that point, the waiting time is somewhere between six and eighteen months with 10-15% of patients either becoming so sick the transplantation becomes impractical or they will die from their lung disease before a transplant becomes available. Professor Bryant infers from the diagnosis that it is sufficiently severe for a lung transplant to be considered and that the plaintiff’s treating doctors have assessed his life expectancy at no more than two-three years. In patients with lung transplants aged between 50-60 years (as is the plaintiff, now aged 53 years), 83% of lung transplants in Australia survive for one year, 67% will survive for three years and about half will survive for five years. It is not possible to calculate, even on the broadest basis, the likelihood that the plaintiff will be accepted as a patient for lung transplantation. It is clear, however, that his life expectancy has been markedly reduced by a lethal condition. I think the most reasonable basis for calculating this factor is to accept that he will be placed on the waiting list, though with a significant risk that the operation will become impractical or he will die from his disease before a transplant becomes available. Arithmetically, the probability (assuming he is placed on the list) he will survive for one year is about 75%, for three years about 50% and for five years about 25%, is, of course, the product of 88% (to take the mid-point of the chances of surviving to have the operation), and, successively 83%, 67%, and 50%. Were he to survive for five years, however, I would accept, in the absence of any evidence as to survival rates after this period, that he would live to 70 years, though this is significantly less than the life expectancy of the general male population. Though the likelihood of his reaching a five year survival is not high, it is far from trivial or inconsequential. It is important, in this respect to bear in mind that it is a category error to apply the probabilities of a class to the probabilities affecting an individual who is a member of that class. (Of course, if he happened to be, at each stage, in the percentage that survived, this would mean that, for him, there was a 100% chance of survival.) The plaintiff’s life expectancy is relevant at this point because there is a real likelihood that he will not survive to work for as long as otherwise would have been the case, had the accident not occurred.

It is necessary also to bear in mind, on the assumption that he is placed on the transplant list, that he will almost certainly have been incapacitated for some period before any operation and, if he survives to obtain a transplant, a lengthy period of convalescence. There is no evidence on these points and I must do the best I can with the benefit of ordinary lay experience and common sense. I conclude that the likely period of inability to work would, overall, last about 18 months; accordingly, this period must be excluded from the future economic loss for which he is entitled to compensation (necessarily limited to limitations of work capacity caused by his accident). Under 13(2), “the amount of damages for future economic loss that would have been sustained on” the assumptions about future earning capacity or other events on which the award is to be based must be adjusted “by reference to the percentage possibility that the events might have occurred but for the injury”. The estimated 18 month period to which I have referred is inevitable if the period over which he is to be taken to have suffered future economic loss extends more than one year. As I consider that, but for the accident, and in the event he obtained and survived a transplant, he would work to about 60 years of age, it is necessary to apply a deduction for vicissitudes. In the circumstances, it is not sensible to calculate this separately from the risks of not surviving more than five years because of his medical condition. Overall, I consider that the appropriate percentage of the likelihood that the plaintiff’s future circumstances would, had it not been for the accident, have permitted him to work in the way he was working at that time until the age of 60 years is 60%. (In this case, there is no distinction between the percentages required to be specified under subsections 13(2) and (3)).

The appropriate mode of calculating future economic loss is to take the average AWE as stated above, namely $650 or $33,800 pa with the 5% multiplier for five years six months (seven years less than the 18 months period to which I referred above) being 251.5, resulting in the present value of $163,475. Applying the 40% discount for, in effect, exigencies, yields the sum of $98,085 as the present value of future economic loss.

I accept the defendant’s submissions that there is no evidence to justify the conclusion that, on the probabilities, he needs 6 hours or more per week of domestic assistance on a continuing basis for 6 months. There is no evidence as to past assistance, nor does the evidence justify an allowance for future domestic assistance.

This head of damages is to be determined by reference to Div 3 of Part 2 of the Act, s 16 of which requires, at the outset, a finding of severity of the loss of at least 15% “of a most extreme case”, in which event the maximum amount that can be awarded is now $605,000. Here, I am satisfied that the continuing physical discomfort and limitations, which have the effect of preventing the plaintiff from undertaking even that level of gainful employment which his psychiatric illness left him, and the exacerbation of his illness by PTSD, involve a severity of loss greater than 15% of a most extreme case. To this should be added the excruciating pain and extreme anxiety he first suffered in the hours following his fall (which substantially caused his PTSD that, in turn, with the physical consequences, negatively impacted on his residual capacity for work, as I have mentioned). In Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370, Basten JA said (in a passage approved in Hall v State of New South Wales [2014] NSWCA 154 at [30]) –

I would assess the severity of loss at 30% of the most extreme case. The result is that the amount to be awarded under this head is 23% of $605,000, namely $139,000 rounded in accordance with s 13(4).

Past expenses have been agreed at $3,705. For the future, it is necessary to make an allowance for the ankle operation recommended by Dr Newman. It is agreed that the appropriate sum is $4,000. Out of pocket expenses therefore total $7,705.

I give judgment in favour of the plaintiff in the sum of $380,640 plus interest calculated in accordance with s 18, plus costs.