Sedgewick v Jerrabomberra Park Pty Ltd t/as Jerrabomberra Park Marketing [2004] ACTSC 108 (25 October 2004)

Last Updated: 29 October 2004

SANDRA ELIZABETH SEDGEWICK v JERRABOMBERRA PARK PTY LTD t/as JERRABOMBERRA PARK MARKETING

[2004] ACTSC 108 (25 October 2004)

NEGLIGENCE - duty of care - occupier's liability - defendant land developer - defendant provided access to site office by constructing ramp from compressed decomposed granite - plaintiff slipped down ramp's steep batter when swivelling around to walk back down the ramp - defendant had a duty to take reasonable steps in constructing the ramp to make it safe for people like the plaintiff

NEGLIGENCE - standard of care - risk of injury was not fanciful or remote - defendant had reasonable alternatives for preventing the risk - defendant breached its duty of care

NEGLIGENCE - contributory negligence - plaintiff did not direct her attention to the risk of danger when she swivelled around - plaintiff's contribution assessed at 15%

Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 15

Civil Law (Wrongs) Act 2002 (ACT)

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 referred to

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 referred to

David Jones Ltd v Bates [2001] NSWCA 233 cited

Rasic v Cruz [2000] NSWCA 66 referred to

Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 applied

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 applied

Australian Postal Corporation v Gallard [2000] NSWCA 316 referred to

March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 referred to

Commonwealth of Australia v McLean (1997) 41 NSWLR 389 referred to

No SC 568 of 2001

Judge: Hill J

Supreme Court of the ACT

Date: 25 October 2004

IN THE SUPREME COURT OF THE )

) No SC 568 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SANDRA ELIZABETH SEDGEWICK

Plaintiff

AND: JERRABOMBERRA PARK PTY LTD t/as JERRABOMBERRA PARK MARKETING

Defendant

ORDER

Judge: Hill J

Date: 25 October 2004

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $100,402.05.

2. The defendant pay the plaintiff's costs.

IN THE SUPREME COURT OF THE )

) No SC 568 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SANDRA ELIZABETH SEDGEWICK

Plaintiff

AND: JERRABOMBERRA PARK PTY LTD t/as JERRABOMBERRA PARK MARKETING

Defendant

Judge: Hill J

Date: 25 October 2004

Place: Canberra

REASONS FOR JUDGMENT

1 On the afternoon of Sunday 8 October 2000 the plaintiff, Ms Sandra Elizabeth Sedgewick was injured in an accident which took place outside the land sales office of the defendant, Jerrabomberra Park Pty Ltd ("Jerrabomberra") at Waterfall Drive, Jerrabomberra. She claims that the accident was caused by the negligence of Jerrabomberra and accordingly brings the present proceedings against it for damages. The accident occurred some time around 5.00pm or perhaps a little earlier on that day.

2 Jerrabomberra denies liability and, if unsuccessful in this, claims that Ms Sedgewick was guilty of contributory negligence. It challenges also the damages claimed by Ms Sedgewick.

The Accident.

3 Ms Sedgewick was born on 2 December 1947. At the time of the hearing she was 56 years of age. She had been at some time a nurse educator but had been forced to leave that profession when nursing education became more college oriented and a degree in science became essential. She had worked as a registered nurse specialising in neurology at hospitals in Sydney. Since then she has been involved in a business of picture framing becoming national training manager for a business known as Framing Corner. She has also been involved in the printing industry and has, from time to time, helped her partner of some 26 years standing, Patricia Dickson in her business which involved delivery of goods to customers in the area in which she lived. She is now retired and lives in a large 4 or 5 bedroom house on a ten acre block of land at Womboin. Attached to that house is a self contained flat in which her mother, aged 84 at the time of the accident, lives. Ms Dickson also lives in the house, as does Ms Sedgewick's great niece, Samantha (Sam), whom Ms Sedgewick had brought up as her daughter since Sam was one week old and who, at the time of the hearing was 18 years old. It seems that both the partner, Ms Dickson and the mother are in bad health. I shall return to that matter later. Sam presently works part time and it might be expected would leave home in the not too distant future to pursue her own life.

4 On the day the accident occurred Ms Sedgewick, her mother, her youngest sister Ms Patricia Vincent and Ms Vincent's future husband, Mr David Newman were returning home by car from Sydney where they had attended a wedding. Patricia and David were at the time interested in purchasing land at Jerrabomberra with the view of building a house in two or so years time when David, who at the time was a Wing Commander with the Australian Airforce and stationed at Sale in Victoria, would return to Canberra at the end of his posting. Patricia was at the time in the Australian Army Psychology unit with the rank of Major. Both were very impressive and careful witnesses. I accept their evidence without qualification.

5 Patricia had, some weeks earlier, looked at land which had been part of the subdivision offered for sale by Jerrabomberra. She had thus been to the sales office at an earlier time. The party stopped at the Jerrabomberra sales office to see what land was being offered for sale. Although that office was not open there were three plans attached to or affixed upon the glass doors leading to the office which, or at least one of which, showed lots available for purchase. David had been driving. After the car stopped the mother stayed in the car. She was not very mobile.

6 The sales office was a demountable one room office that Jerrabomberra had hired for the purpose from Coates Hire. The hire had commenced in July 2000 and continued until shortly after the accident. The subdivision at Waterfall Ridge, Jerrabomberra, had been advertised on television for some time before. The demountable office was erected on one block of the subdivision. That block was sloping and a consequence of the slope was that the demountable office, when erected, was approximately half a metre above the level of the land. There was, accordingly, a need for access to the office by the public to be constructed. The arrangements to do so were in the hands of a Ms Woodbury, a real estate agent since 1989 although only a licensed real estate agent since 2003. She had been working with the marketing arm of Jerrabomberra since 1999 and was responsible, inter alia, for the sales and marketing of the land at Waterfall Ridge. Part of her duties involved liaising with earth moving contractors responsible for providing services to the subdivision, particularly Woden Contractors. She arranged for that company to build a ramp to provide access to the sales office. I shall return to those arrangements and in particular her evidence and the evidence of a Mr McClelland of Woden Contractors later in these reasons.

7 As it happens Patricia, no doubt encouraged by her army experience, took a number of photographs of the ramp and Ms Sedgewick lying on the ground being cradled by David immediately after the accident. The photos make it somewhat easier than perhaps it would have otherwise been to understand the physical characteristics of the ramp that had been built and how the accident occurred. There is, however, a reservation which it is necessary to express about the photos. Given that the photos were taken late in the afternoon there are, in some photographs some shadows which might affect the interpretation which, otherwise, the photographs do suggest. I have, so far as is possible, attempted to take this into account.

8 The ramp began at the curbside of the road. It was constructed of decomposed granite that had been compacted. The ramp was, it would seem, approximately 1.2 metres wide. This width was probably affected slightly by a sign advertising "Land Sales" which was implanted approximately 15 centimetres from and parallel to the front of the demountable office. The ramp extended from the street to just before the end of the double doors on the office and was parallel to the front of the office. The slope was relatively gentle for the first half of the ramp's length. There was then a small step which took one to a platform below the level of the double doors. In other words, there was a further step to the inside of the office when the doors were open. The office was closed at the time the accident occurred.

9 At the front of the ramp, that is to say parallel to the office with its double doors but at the other side of the platform part of the ramp away from those double doors, there was what counsel for the parties each referred to as a "batter". That is to say there was a slope from the ramp, step and platform extending out from the ramp etc until the slope merged with the level of the land beyond the office. At the steepest point, that is to say at right angles to the double doors the batter sloped some 30 degrees with a perpendicular height of approximately half a metre. While, clearly, this was not the purpose for which the batter was contemplated, it was possible for an agile person, such as Ms Woodbury, to walk or perhaps run down the slope of the batter from the platform to the land level below. She said she had done so on a number of occasions and I have no reason to disbelieve her. The more people who did so the more likely it would be that the side of the batter could commence to break up. Whether or not this is the reason, one of the photos would suggest that some part of the batter slope had started to break up. There would seem to be some gravel on the slope and, as might be expected, gravel down the slope and particularly at the point where the batter merges with the ground. The extent to which the compacted marble had started to break up is, however, unclear. Other photos without shadow suggest that some of what appears to be "break up" may, at least in part, be attributed to shadow on the photograph. I would find, nevertheless, that some part of the batter had commenced to break up. That however, was not the cause of the accident.

10 There are some differences between the evidence of Ms Sedgewick on the one hand and that of Patricia and David on the other. This is not particularly surprising as Ms Sedgewick was in shock after the accident and her recall might not be expected to be as accurate as those who observed what happened. To the extent that there are discrepancies I would accept the evidence of Patricia and David over that of Ms Sedgewick. In particular I do not find, as Ms Sedgewick said, that Patricia accompanied David and Ms Sedgewick up the ramp or that while looking at the plans pasted on the window of the demountable office David (and Patricia) were both in front of Ms Sedgewick on the platform. Nothing turns upon the discrepancy.

11 I find that David and Ms Sedgewick proceeded up the ramp to look at the plans pasted on or attached to the glass doors of the demountable office. Patricia walked some distance away, and stood adjacent to the car watching David and Ms Sedgewick. She did not proceed up the ramp. David was ahead of Ms Sedgewick as the two of them went up the ramp. They were, however, side by side as they looked at the plans and not, as Ms Sedgewick said in her evidence, in a position where David was in front of Ms Sedgewick close to the doors of the office and Ms Sedgewick was standing behind David but also on the platform looking at the plans. Patricia observed the two looking at the plans. David turned to go back down the ramp to the street. He started walking, that is to say his back would have been to Ms Sedgewick, when he heard her fall and scream. When he turned around she was on the ground below the ramp. David did not, therefore, directly see the accident.

12 Patricia, on the other hand, saw the accident happen. She saw Ms Sedgewick turn moving her right foot back. Patricia demonstrated to the Court how Ms Sedgewick swivelled around on her right foot. It probably came to rest on the edge of the batter and the platform at the end of the swivel. The right leg continued down the slope of the batter leaving the left leg behind. Ultimately this left Ms Sedgewick on her back on the ground with a fractured ankle at the bottom of the batter slope and in considerable pain. Patricia and Ms Sedgewick both described what happened as "skating" down. The left leg bent up at what Patricia described as "a very unnatural and unpleasant angle". At rest Ms Sedgewick's right leg was stretched out and her left leg was bent up. More than one of the photos showed what looked like skid marks down the batter. Although one could not be sure, it is more probable than not that one of those skid marks to the right of where Ms Sedgewick landed shows where Ms Sedgewick's leg went down the batter. That was Ms Sedgewick's impression. The photos show clearly where Ms Sedgewick landed. Ms Sedgewick was in shock, was shaking and becoming incoherent. Patricia called the emergency number on a mobile phone before taking the photos.

13 As already noted David attempted to comfort Ms Sedgewick and covered her with a towel to keep her warm. The natural slope where Ms Sedgewick landed and where David cradled her was such that he had to anchor himself carefully to prevent them both sliding further down the natural slope. There is some evidence of loose gravel on the slope of the batter, increasing as the batter came close to merging with the natural slope and a considerable amount of loose material at the end of the batter. Ms Sedgewick was taken by ambulance to Queenbeyan Hospital and later transferred to Canberra Hospital.

14 It is obvious that in swivelling around Ms Sedgewick did not consciously look around to see how close she was to the edge of the platform. There was no rail and for that matter no marker to indicate the edge of the platform and the commencement of the batter. Indeed, it is obvious from the photographs that the edge where the batter met the platform was far from defined. Had these or other precautions such as the construction of a proper set of steps leading to the building been taken, the accident would not have happened. I do not, however, accept Ms Sedgewick's evidence that she was paying attention to where her foot was to go as she swivelled around. Had she done so before swivelling then it is also unlikely that the accident would have happened as it did. Rather I think Ms Sedgewick was correct when she said, ultimately, that "I did not exactly look down at that particular moment to see where my foot was. I thought I was on a safe platform, but my foot was just a bit too close to the edge."

The construction of the ramp.

15 Evidence was given on behalf of Jerrabomberra relating to the construction of the ramp. It may, perhaps, be more accurately described as a mound. This was the evidence of Ms Woodbury and Mr McClelland, a civil foreman employed by Wodan Contractors. Ms Woodbury appeared to be concerned to justify herself at all stages in her evidence. While I do not go so far as to suggest that she was deliberately not telling the truth it was clear that she was attempting to give her evidence in such a way as to put herself in the best light. There are some difficulties with her evidence. Mr McClellan, who had worked for Wodan Contractors for 24 years was responsible for laying out the work for employees of that company, the work involving civil engineering works, the building of roads and bridges, sewers and stormwater drains and other services in connection with subdivisions.

16 A conversation took place concerning the construction of the mound between Ms Woodbury and Mr McClelland around August 2000. Mr McClelland had no recollection of the conversation. Indeed, his recollection of events was so poor that it is difficult to place any reliance on his evidence at all.

17 According to Ms Woodbury the Waterfall Ridge subdivision consisted of 55 residential blocks at the commencement of the Waterfall Ridge area at the southern end of Jerrabomberra. The blocks were released for sale in approximately February 2000. Initially there was a sales office at an area called Stringybark. A decision was made to establish a temporary sales office in Waterfall Ridge on what was Lot 11 of the subdivision. Ms Woodbury spoke with Mr McClelland and told him that Jerrabomberra needed to place a site office at the front of the block. Some levelling of the lot was necessary. There was a slope, probably overall of some 15 to 20 degrees. A temporary demountable office was hired from Coates Hire and erected. The hire commenced on 18 July 2000. The building measured 6 metres by 3 metres. It remained on site for approximately three months during which time Ms Woodbury was regularly in attendance both during the weekends and during certain hours on week days.

18 At the time of the launch of the subdivision at the particular site office there were some two hundred people there. On weekends Ms Woodbury observed some 30 persons visiting the site office. During the week there could be anywhere from two persons to 10 persons. In the total time during which Ms Woodbury was in attendance at the site office, approximately three to four months, some one thousand people were estimated by her to have used the ramp. So far as she knew there had been no complaints from the public about the ramp.

19 When Ms Woodbury saw the building erected she realised that it was too far off the ground to step into. She estimated the distance from ground to office to be 500 - 600 mm. She asked Mr McClelland to remedy this in some way. Ms Woodbury did not stipulate to Mr McClelland what type of access should be built. She had no input into that decision. In a statement given pre-trial to Jerrabomberra solicitors, Ms Woodbury had said that Mr McClelland had said that he would build a ramp but made no mention of what material he would use to do so. Perhaps he indicated in the conversation that the ramp would be made out of compacted decomposed granite. If he did so, it is likely that she would have said so in the statement she gave much closer to the accident than in the present hearing. But, whether he did so, I doubt that she gave that matter much thought. I do not think that the ramp was a matter which concerned Ms Woodbury to any extent other than that access to the building by prospective buyers of the subdivided land offered for sale was commercially necessary. Despite protestations to the contrary I do not think that she directed her mind to safety matters when arranging for construction of an access to the demountable building. Had she done so it would have been likely that she would have recalled the site office at Stringybark (also demountable, although somewhat larger) where a similar problem of access had been solved by the erection of wooden stairs. The possibility of building stairs as a means of access was certainly not discussed with Mr McClelland by Ms Woodbury. Nor was the possibility of there being marked some clear delineation of the edge of the platform. Ms Woodbury said that she believed the delineation of the edge to be "obvious" and that she had given thought to making access safe and that while the ramp was being constructed she thought it safe. It is clear from the photos that the delineation of the edge is far from obvious. While I have no reason to expect that Ms Woodbury regarded the construction as unsafe, I do not think this was a matter to which she gave much, if any, thought. In so far as it is relevant, it is clear that she had little knowledge of safety standards, if any (I do not criticise her for this) and that she would take advice about such matters, if she thought about it and concluded that such advice was necessary. I do not accept her evidence that she thought about these matters to anything but an insignificant extent. I do not accept that she gave any real attention to the question whether it was safe for members of the public to use the ramp or the more relevant question here, whether a danger existed of a member of the public falling off the edge of the ramp when turning away from the closed office.

20 The conclusion that Ms Woodbury really did not direct her mind to the safety aspects of the ramp is reinforced by a part of the cross-examination where she was being asked about the possibility of delineating the edge of the platform and the batter. At first, Ms Woodbury replied that "We didn't feel it was necessary. I didn't feel it was necessary." She was then asked from the Bench whether this was a matter that at the time she felt she should take into account. Honestly, she answered that it was not. It was then put to her by the cross-examiner that she had not thought about it. She replied "I'm not saying I didn't think about it. I possibly could have thought about it. I can't remember precisely from the time, I'm sorry." She ultimately agreed that at the time, she had given no thought either to a wooden border delineating the edge or a railing to be erected behind the platform. However, when it was put to her that it had not occurred to her (she having previously accepted that she had no recollection of thinking about and dismissing a railing) she then said "No, I didn't feel the need."

21 I find that Ms Woodbury really gave no attention to these matters. She saw no lack of safety. Her concern was commercial access. The form that access should take she left to Mr McClelland. For his part Mr McClelland was content with the mound that was created. Decomposed granite was, in his opinion, a suitable material to use for a ramp. It was compactable material. He could not remember whether he had anything to do with the building of the mound. I would find it likely that the work required to construct the mound was left to employees to do. He assumed that the granite had been properly compacted. There was no reason for him to assume otherwise. He claimed to be able to tell from the photographs that the granite was still tight and well compacted despite some of the photos suggesting to the contrary. He was of the view that the granite was not loose and that this indicated that it was compacted.

22 Mr McClelland said that he was satisfied with the ramp from a safety point of view because it was not a particularly "high piece of earthworks". He did, in cross-examination accept that with exposure to weather the surface could, over time, break down and develop a film of small pieces of granite on the top of the compacted surface. Later he conceded that this breakdown could happen in the space of months rather than years. With some difficulty he accepted that on a slope this could cause the surface to be slippery. That this would be so would seem self evident. Again, with difficulty, he agreed that he had walked on such a surface where there had been breakdown.

23 In later cross-examination Mr McClelland was asked about the possibility of building wooden steps to give access. Strangely, he said he had never constructed a wooden staircase. His evidence was that thinking about alternative means of access other than the ramp/mound was not part of his work. The ramp was the only means of access he thought about. Mr McClelland was also adamant that there was a clear line of delineation at the point where the horizontal ramp met the sloping sides. He accepted, however, that rather than there being an edge, there was a curve at the top where the horizontal and vertical met. He clearly gave no attention to safety matters, including the possibility of sliding down the batter from the curved edge. He agreed that a slope of 30 or more degrees was not safe and particularly if the surface was loose. He agreed too that building a flat path to the bottom of steps leading to the double doors would not have been a difficult undertaking. Probably only three steps would have been necessary.

24 In conclusion I would find that Ms Woodbury, on behalf of Jerrabomberra, required a means of access for members of the public to the site office. She asked Mr McClelland to build it. His was the decision to build the mound using compacted granite. No alternatives were discussed. The mound/ramp was the only solution Mr McClelland thought about. Ms Woodbury gave no thought to solutions at all. She relied upon Mr McClelland. No doubt the building of a mound was a simple solution. Mr McClelland's company had the necessary machinery and staff to build and compact it. Safety was not a matter that received any attention from either Mr McClelland or Ms Woodbury. It simply was not discussed. That there were safer alternatives is obvious. These included a railing at the back of the platform (assuming the right solution was the building of a mound), a level passageway to the commencement of a set of stairs, whether wooden or otherwise leading up to the door of the site office, or even a clear delineation of the edge of the ramp and platform with the batter sloping downwards, so that members of the public were aware of the need to stay away from the edge. Even an appropriate warning sign to members of the public to keep away from the edge of the batter might have provided an element of safety missing from the mound in the form it was constructed. None of the alternatives would be likely to have been expensive. None would require any unreasonable expenditure on the part of Jerrabomberra engaged, as it was, in selling subdivisional land to members of the public.

Was Jerrabomberra liable to Ms Sedgewick?

25 The past decade has seen a great simplification in the law concerning the liability of occupiers, whether commercial or councils to those who enter upon (and are in the result injured upon) premises, be they commercial premises or even footpaths. The defining judgment of the High Court was Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512. In it the High Court swept away distinctions which had for generations caused difficulties; distinctions such as non-feasance and misfeasance which bedevilled the "highway rule" and which seemed to create an immunity to local road authorities were no longer to be regarded as relevant to the common law of Australia. Rather the liability of occupiers to those injured upon their premises is now recognised as being required to be determined by the law of negligence which provides what Gaudron, McHugh and Gummow JJ in Brodie referred to as "the criterion of liability in such cases" at [55]: see also Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 at 487-488 per Mason, Wilson, Deane and Dawson JJ.

26 There may, perhaps, be different policy considerations relevant where at issue is the liability of local governmental authorities. Certainly such cases will require consideration of statutory powers and duties. That consideration will not normally be present when at issue is the liability of the occupier of commercial premises to members of the public who enter upon land owned or occupied by the occupier, and being persons whom the occupier wishes to attract to the premises. In Ghantous, decided at the same time as Brodie the High Court noted that the duty of a local authority was to take reasonable care for the safety of persons who take reasonable care for their own safety (see, eg Gleeson CJ at [6] - [8], Gaudron, McHugh and Gummow JJ at [163], Kirby J at [248], Hayne J at [339] and Callinan J at [355]). It is perhaps because the policy considerations differ between highway authorities on the one hand and occupiers of commercial premises on the other that in the case of the liability of occupiers of commercial premises, the duty of care of the occupier might be more onerous than that applicable to a highway authority: David Jones Ltd v Bates [2001] NSWCA 233 per Davies AJA , with whom Heydon JA agreed in this respect, at [16] - [26]. There will be a duty to take that care which a reasonable person would take having regard to foreseeable damages. In Rasic v Cruz [2000] NSWCA 66 at [42] in a passage cited by Davies AJA in Bates at [17] Fitzgerald JA (in what otherwise was a dissenting judgment) said:

"A shopkeeper owes a duty of care even to careless customers. However, a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved."

27 Whether there is in fact a more onerous duty imposed upon the occupier of commercial premises than upon a highway authority, for example, and particularly whether the duty of care should itself be defined by reference to persons who themselves take reasonable care for their own safety are not questions which need detain us here if only because I would not find that Ms Sedgwick failed to take reasonable care for her own safety in the sense those words are used in Ghantous. Rather, what is clear from the judgment of Brennan CJ in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431, at [15] is that:

"It is not simply possession or occupation of premises which founds the duty of care but power to determine the terms on which an entrant may enter and power to safeguard the entrant against dangers in the condition of the premises entered."

28 Accordingly, an occupier, such as Jerrabomberra which constructs an access ramp/platform for commercial access to its premises determines the terms of entry and will therefore be under a duty of care to take reasonable steps in the construction to ensure that there is not created a foreseeable risk of harm to a class of persons - those intended to use it for the purpose for which it was constructed, ie to gain access to the site office or the doors of the site office on which are pasted plans designed to be viewed by the public. That class of persons included here Ms Sedgewick. The discharge of that duty involved the taking by the occupier of reasonable steps to prevent a source of risk which gave way to a foreseeable risk of harm: Brodie at [150] per Gaudron, McHugh and Gummow JJ.

29 The issue of breach of a duty of care will fall to be determined in accordance with the principles stated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-8. In that case his Honour said:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

30 In Australian Postal Corporation v Gallard [2000] NSWCA 316 at [10] Heydon JA stated the law to be:

"The liability of an occupier is simply a duty to take reasonable care to avoid a reasonably foreseeable real risk of injury.... Neither those cases nor any other good authority supports the proposition that the defendant could not be liable unless it knew of, or had reason to suspect, unsafeness in the ramp."(citations omitted).

31 In the same case his Honour noted that a ramp was something which, in the mind of a reasonable occupier would raise the risk of falls by slipping. That is rather a matter of common sense than a matter of law. The fact that Ms Woodbury had no reason to suspect that the ramp was not safe will, however, in accordance with what his Honour has said, not absolve Jerrabomberra from liability.

32 I have no doubt that Jerrabomberra owed a duty of care to Ms Sedgewick in constructing or arranging for the construction of the ramp. In my opinion there was a reasonable risk of injury to anyone using that ramp and looking at the plans which were pasted to the double doors of slipping down the side of the batter when turning around after doing so with the intention of proceeding back down the ramp. A reasonable person would have foreseen that in building such a mound to provide the access it did there was a reasonably foreseeable risk of injury to a person such as Ms Sedgewick. That risk was not fanciful or remote. It was real. And it is no answer to that reality to say that to the knowledge of Jerrabomberra no other members of the public were injured in the three or so months during which the mound existed.

33 A reasonable occupier if it had directed attention to the question could have identified a number of possible solutions to avoid the risk of danger to members of the public who were implicitly being invited to use the ramp. A railing at the edge of the mound itself to prevent a person falling off the mound; a set of steps leading to the site office door from an even pathway from the road, or even the use of sleepers or some other wood to delineate the edge of the mound from the batter were all possible and quite reasonable alternatives which would have prevented the foreseeable risk of injury to members of the public. Perhaps, as I have already suggested, all that was necessary was a sign warning members of the public to be particularly careful using the platform and to avoid slipping down the batter. In the scheme of a business of selling off 55 subdivisional lots the cost of preventing risk by such alternatives would be minuscule. I find that Jerrabomberra breached its duty of care. The risk of injury to Ms Sedgewick was, in the result, foreseeable. Jerrabomberra was liable in negligence to Ms Sedgewick subject to any question of contributory negligence to which I now turn.

Contributory negligence?

34 On behalf of Jerrabomberra it was submitted in effect that the question of contributory negligence could not arise because, assuming that Ms Sedgewick was, as it was submitted, negligent in not looking to see where her feet would land when she swivelled around from looking at the plans pasted on the double doors of the site office, she would not have been acting reasonably and so Jerrabomberra would not be liable at all, whatever contribution her negligence might have. This is said to arise from the decision of the High Court in Ghantous and Brodie.

35 I do not think that the submission should be accepted. First, Ghantous was a decision relating to the liability of local councils. While clearly the High Court was of the view that the issues in that case should be determined in accordance with the law of negligence it does not follow from that, that the requirement that a plaintiff act reasonably while using a road or a footpath is a requirement of the ordinary law of negligence applicable to members of the public invited to use premises of an occupier in commercial circumstances. All members of the High Court in Ghantous were careful to indicate that they were formulating the duty of care applicable in highway cases involving the exercise by an authority of statutory powers and not generally in all cases dealing with the liability of occupiers.

36 Secondly, the public policy matrix applicable to the liability of local government authorities for the use of public roads or streets differs from that applicable to the liability of occupiers more generally. That this is so follows, it seems to me, from the endorsement by the High Court of the decision in Australian Safeway Stores Pty Ltd v Zaluzna as a "comprehensive" formulation of the duty owed by occupiers of private land to entrants upon that land. Further the fact, as Callinan J pointed out in Ghantous that persons using roads or footpaths will ordinarily be expected to exercise sufficient care by looking where they are going and perceiving or avoiding "obvious hazards", for example, uneven paving is not to the point on the facts of the present case. What his Honour there referred to (and it was echoed by Kirby J in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 at 478 [123]) were risks which were "obvious". The differential in height between the earthen surface and the concreted part of the footway was, as Callinan J observed at [355] "plain to be seen". As Kirby J said in the same case the plaintiff failed because she failed to show that her damage was the result of negligence on the part of the Council. It was not because of any lack of attention on her own part. It was not because of an "enlarged assumption...about a pedestrian's need for vigilance for his or her own safety." I do not think that the risk to Ms Sedgewick in the present case was properly to be called "obvious". It was not plain to see. To the contrary, the edge between the platform and the batter was not at all defined.

37 Another difficulty with the submission is that it would render nugatory the statutory provision for apportionment of liability for contributory negligence: originally created by s 15(1) of the Law Reform (Miscellaneous Provisions)Act 1955 (ACT), but now contained in the Civil Law (Wrongs) Act 2002 (ACT). In my view it is incumbent upon me to consider whether Ms Sedgewick contributed, in the relevant sense, by her own acts such that she was herself negligent. The question is did her negligent act or omission materially contribute to the occurrence of the damage: March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 532 per McHugh J? If so liability must be apportioned "in accordance with what the Court thinks to be just and equitable having regard to the comparative responsibility of the parties": March v Stramare (E & MH) Pty Ltd at 533-4 per McHugh J.

38 It is clear enough that Ms Sedgewick did not direct her attention to the risk of danger when she swivelled around. Put shortly, she did not look where her feet would land her. It was, in my view, an act of momentary negligence on her part. However, it contributed to the ultimate injury she received. In my view contributory negligence should be calculated as amounting to 15%.

DAMAGES - General.

39 Two particular difficult questions arise in the present case in the calculation of damages in addition to the normal difficulties which arise in the assessment of damages. First there is the question, raised on behalf of Jerrabomberra, whether Ms Sedgewick was simulating or exaggerating the extent of the damage she suffered such that, away from the confines of the Court, she was perfectly capable of normal walking and thus of performing the ordinary household duties which she says she was, as a result of the accident, unable to perform. Second, there is the question whether any injuries now suffered by Ms Sedgewick were caused by an earlier accident which Ms Sedgewick had suffered in 1993. These questions are in addition to more usual damage issues. They must be addressed.

Simulation?

40 There seems little doubt that Ms Sedgewick suffers pain as a result of her ankle injuries. It is also clear from the medical evidence which I shall discuss later that Ms Sedgewick suffered a dislocated fracture of her ankle as a result of the accident. None of the doctors who have examined Ms Sedgewick suggested that she had no injury. Save as hereafter mentioned, none suggested that her complaints of pain or difficulty of movement were contrived. Indeed, as will be seen, the most recent report suggests that further surgery including fusion of the ankle, is a likely outcome. It is, thus, rather unlikely that Ms Sedgewick is merely simulating injuries which she does not suffer from, although there is a possibility that she may be exaggerating the extent of them.

41 As will be seen Ms Sedgewick has constantly, since the time of the accident, taken medication to alleviate pain (pain killers and anti-inflammatories) and has also taken anti-depressant medication to relieve symptoms of depression which have, she says, developed since the accident. She claims to be unable to bend or squat down in such a way as to perform the normal cleaning tasks around the home, such as mopping or vacuuming the floors and cleaning bathrooms, or to walk any distance without pain which has to be relieved with the medication. She claims also to be unable, at least without breaks to mow the outside lawns using a ride-on mower or to whipper snip grass, let alone do general outdoors maintenance, for example, repairing fences. Standing on a ladder induces pain, she says. Painting is not possible she says because she is unable to do it. She claims to be unable to do the shopping without resting the ankle upon her return home for some time before being able to do anything else. She claims to be unable to care for her mother and in circumstances where such care is needed. She claims to be unable to care for her partner, and in circumstances where such care is needed. She claims no longer to be able to be as active in the local rural volunteer fire service as she had been in the past when she had been a member of the active fire crew. She is now confined to being a first aid officer and support crew leader, answering phones, handling the radio and so on. She says that she is never without pain now. Her emotional state has deteriorated.

42 Ms Sedgewick summarised her present position as follows (T at 82):

"I can mow the lawns over a period of about a week. I can whipper snipper over about a period of a week. I can do the shopping, I can do some light housework. I can do sweeping up. I can bring the wood down and load it up and look after the fire so I've taken on all of those types of responsibilities again."

The heavier household tasks, are, however, unable to be performed by her, at least to the standard to which she is accustomed.

43 When asked about her pain level doing these things she said it was "there constantly" and the activities she did increased the pain level. She said that her ankle was permanently swollen. As for walking she said that she could walk for a couple of hours if she had taken pain relief beforehand but then had to stop and rest. Before the accident, on the other hand, she said that she could walk all day without problem. Thus, before shopping, she took pain relief. Once she returned home she would need to sit for two or three hours and rest before doing anything else. The maximum ironing she could do was one hour before sitting for some time. The garden was overrun with weeds and the plants were out of control because she could no longer maintain it.

44 In cross-examination Ms Sedgewick said that ever since the accident she had been limping virtually all the time. Painkillers would sometimes do away with the limp. She said "I can take half a dozen steps without limping but on the whole I limp virtually all the time." She rejected the suggestion made to her shortly after the commencement of her cross-examination that this was a fabrication. There the matter stood until the next morning of the hearing when counsel for Jerrabomberra showed a video taken by a surveillance team on 1 October 2001. The same team attended at Ms Sedgewick's home for surveillance in addition on 4 October and on other occasions but no video output was produced. It is hard to draw any inference from this lack of output. Ms Sedgewick may have stayed indoors on those occasions, she may have noticed the surveillance team and not wished to be photographed, or she may have been unable to walk. It is impossible to know and hardly devalues the material in fact captured on 1 October 2001.

45 The video occupied some 47 minutes. The first 18 minutes were merely distance shots of the farm and accordingly were fast forwarded. The balance of the film showed Ms Sedgewick doing deliveries from her car for her partner from a Toyota Cressida automatic car. She is shown getting out of the car at a number of destinations including Rural Printing, a hair salon at the Hackett shopping centre, at the Watson Shopping Centre, at the Bungendore post office area, a shopping arcade in Bungendore where she walked up and down steps, before returning home, all in a time period from 11am in the morning until around 4pm in the afternoon. Ms Sedgewick is shown stopping off for lunch at the Dickson Tradesman Club for about two hours where she played the poker machines, presumably while seated on a stool. She also broke the journey in the afternoon to have a drink (Coca Cola in accordance with her evidence) at a hotel in Bungendore. Asked about the various deliveries of books and games for children which she was making, Ms Sedgewick said that she used a lot of painkillers to make the deliveries - indeed every four hours. The video shows Ms Sedgewick walking with no apparent difficulty and certainly more than a few steps without limping.

46 It is difficult to recognise in the video Ms Sedgewick as she presented in the witness box, where, it seemed she had some discomfort with her leg requiring her to change position with some frequency. As she presented in the video she was, it would seem, able to walk without a limp and go up and down stairs with no apparent discomfort. The question is whether I should conclude from the video that she was attempting in Court to simulate the pain and discomfort she said she had and if so, the extent that this was the case. Were it not the case that the medical evidence suggested with some objectivity that Ms Sedgewick's ankle was swollen and that it impeded her ability to perform certain tasks (although no doubt in part it draws upon her descriptions of her pain and other symptoms) I would have been inclined not to have believed her. As it is, I think that the video shows that her disability is not as great as she says and that, at least, when she is unaware that she is observed her limp is not visible, although perhaps pain relievers and anti-inflammatories assisted this. It certainly is not the case that she can not go more than a few steps without limping, even with the aid of pain relievers. The video demonstrates that. Her credit is certainly affected by it and it has the result that I must discount, at least somewhat, what she says about her disabilities. I turn now to summarise the medical evidence.

The Plaintiffs medical reports.

47 None of the doctors who had seen Ms Sedgewick were required for cross-examination. To the extent that their views differ, I am unable to choose between them on any rational basis by reference to how the doctors present in the witness box. It seems to me that in general terms where Ms Sedgewick's doctors differ in their views from the doctors employed by Jerrabomberra, I should generally accept the reports of the company's witnesses simply on the basis of onus of proof, unless there is some reason to do otherwise. This having been said, however, there is less difference in the views than might be expected.

48 There is little doubt from the x-rays taken upon her admission to hospital immediately after the accident that there was "a comminuted fracture of the distal fibular" at the level of the ankle joint but extending above it. There was an associated disruption of the ankle joint itself with fractures of the medial and posterior malleoli. A plate and screws were inserted. She was given physiotherapy and hydrotherapy. A casemix report dated October 2000 predicted an "uncomplicated recovery". By April 2001 a radiology report suggested that the plate and screws had fixated the fracture "into a satisfactory alignment". Around the same time Ms Sedgewick's complaint of pain is noted as is the existence of a "spur". By February 2003 an arthroscopy of the left ankle was performed and the screws and plate were removed - an operation which it was expected, so Ms Sedgewick said, to alleviate her pain just as a similar operation had done so with the 1993 injury. Before that operation (25 October 2001) Dr Smith, an orthopaedic and trauma surgeon noted that "Unfortunately the ankle is significantly worse symptomatically". Ms Sedgewick had reported to Dr Smith that she was "experiencing ongoing pain of an increasing nature secondary to her left ankle".

49 On 20 November 2002 Dr Cross, Ms Sedgewick's general practitioner, noted that Ms Sedgewick had "very troublesome Right plantar fasciitis." This was apparently brought about because she favoured the painful left ankle to the detriment of her right foot. She reported that her patient was "in significant pain".

50 On 19 November 2002 Dr Griffith, a consultant surgeon, wrote a report for Ms Sedgewick's solicitors. That report dealt with the prior history, particularly the 1993 injury. It noted that she had been assessed in 1995 (that is to say after the 1993 accident, but before the 2000 accident) as fit for any work which did not require "prolonged standing and repeated locomotion." She had, however, developed symptoms referable to her right heal which were diagnosed as chronic plantar fasciitis. This was noted as perhaps related to the 1993 ankle injury and "gait disturbance associated with that injury." By the time of the report Dr Griffith was able to report that plantar fascilitis was no longer a problem since orthoses had been provided to Ms Sedgewick and since, presumably these were thereafter worn by her. He noted, however, complaints of pain in the left ankle with discomfort and stiffness and associated restrictions of movements. He noted as well sleep difficulty and depression. He noted too that Ms Sedgewick was "obese" but that her "posture and gait did not appear grossly abnormal. He indicated that he had formed the view that Ms Sedgewick was "genuine in her presentation". He supported an arthroscopic re-exploration of the left ankle and the removal of the plate, and screws and the excision of the spur. He expected marked improvement in the range of dorsiflexion and relief of local discomfort. His view at the time was that fusion was not likely to be required.

51 In the report Dr Griffith seeks to assess the degree to which Ms Sedgewick's difficulties were related to the 1993 injury and the degree they were related to the present accident. He expresses the view that it was more likely that the majority of the current symptoms were attributable to the second fracture and not the first. His conclusion is as follows:

"...I am of the opinion that approximately 70% of the current symptoms are attributable to the index injury, 30% to the initial fracture. Notwithstanding the radiological appearances and the possibility (unproven) of a medial plafond depression and possible predisposition to arthritis, the fact remains that she was minimally symptomatic prior to the second (index) injury of October 2000, and has remained markedly symptomatic since."

52 The doctor was of the view that Ms Sedgewick, while not fit for any activity involving locomotion, prolonged standing or repeatedly traversing stairs could work, for example, at window framing. The prognosis of the facture was, the report concluded, excellent and significant improvement in reduced swelling and pain was expected following the proposed operation to remove the spur. Fusion was, it was said, unlikely.

53 On 27 November 2002 Dr Voss gave a report to Ms Sedgewick's solicitors, it would seem in response to a request to apportion the injuries between the 1993 and 2000 fractures. He noted that the symptoms in the left ankle showed no ongoing improvement and were deteriorating. The left ankle was swollen all the time and was painful should she walk for about an hour shopping or stand for half an hour. She was unable to squat and was developing some pain in the right ankle "due to strain placed on it because of the bad left ankle." The doctor noted that apportionment involved conjecture. His conclusion was, as follows:

"Noting that the earlier fracture had already produced a demonstrable deficit of the weight bearing surface and the medial part of the distal tibial articular surface, I would be inclined to think that this initial facture would play a greater role in any future problems, with regard to the development of arthritis. This would, however, not exclude a significant role of the second fracture in influencing such changes. I think a reasonable approximation would be to apportion 60% to the effects of the first fracture, and 40% to the effects of the second fracture."

54 There is a report of 24 September 2003 from Lisa Castles and Associates, Rehabilitation and Occupational Health Consultants. The report notes that the left ankle was constantly swollen and stiff with reduced range of motion. There was an occasional twinge in the left knee and that while there was no apparent restriction in vertical reaching Ms Sedgewick was unable to crouch due to restriction of ankle joint, There were no problems reported with lifting and handling. It is said that Ms Sedgewick had severe difficulty with many cleaning tasks such as vacuuming, cleaning showers, sweeping or cleaning windows where the activities involved long periods of standing or walking and caused increase pain. The vibration of the ride on mower was said to aggravate (through vibration) the ankle pain so that mowing needed to be completed in several sessions. Whipper snipping was said now to take longer and bring about irritability, and her ability to shop was limited by the inability to walk for more than an hour. The report recommends outside assistance from an external cleaning agency for household tasks such as vacuuming and cleaning, and outside assistance with grass mowing and edging in three to four hour sessions.

55 On 27 April 2004 Dr (by now, Associate Professor) Smith reported to Dr Cross that the operation for the removal of the implants which took place in February 2003 was such that Ms Sedgewick had "recovered and healed well... without complication." Her ongoing problem was "ongoing activity related pain in the left ankle on a daily basis...only marginally relieved with anti-inflammatory medication and analgesia." He noted that an MRI scan had been performed which demonstrated "post traumatic degenerative change in the anterior aspect of the talo-tibial joint." However, the subtalar joint was in good condition without any degenerate change. He recommended that Ms Sedgewick see a Dr Klar one of the new orthopaedic surgeons in Canberra to consider further treatment such as a possible ankle fusion given that Ms Sedgewick had "the need for a high activity profile in her day to day activities."

56 On 29 April 2004 Dr Knox reported to Ms Sedgewick's solicitors. Ms Sedgewick is reported as having said of her ankle injury, "It hasn't let up since day one." The report notes that Ms Sedgewick is unable to do heavier work around the home although she was able to do some lighter work. It is noted that Ms Sedgewick suffered from "chronic, moderately severe, Adjustment Disorder with Depressed Mood". However, she had not undertaken a course of antidepressant medication. The report recommends that she do so. The report notes that there were other issues which might have contributed "to a minor degree" to her emotional state, for example, the fact that her partner had suffered a myocardil infarction in March 2002 and the multiple illnesses from which her mother suffered. However, it is said that the present depressed mood arose directly from the 2000 injury where Ms Sedgewick suffered chronic pain and disability. The report notes that the physical injury was likely permanent, although there could be some prospect of improvement with treatment. Dr Knox recommended 10 sessions of psychiatric treatment costing $240 per 45 minute session plus treatment of a psychologist costing in the order of $170 per 15 minutes.

57 On 18 May 2003 Dr Griffith, a consultant surgeon, reported to Ms Sedgewick's solicitors after seeing her for an updated assessment and report. He noted "significant wasting of the left calf and significant movement restriction in the left ankle". He noted, too, that Ms Sedgewick has stated to him that there had been a "marginal improvement" in her symptoms since removal of the plates although she still had "periodic burning and throbbing pain". Her level of discomfort was proportional to her level of physical activity. However, Dr Griffith found significant improvement to her condition, while accepting that she was not symptom free. He recommended an arthroscopy to assess her current situation and a trial of injection of depot-steroid for symptomatic relief. He felt it was unlikely that she would require fusion but if so this would be deferred for many years. He repeated his view that Ms Sedgewick's problems were 70% related to the 2000 accident and 30% related to the earlier accident in 1993. His prognosis was as follows:

"The prognosis remains as previously set out - there is marginal improvement in movement, but she may expect continued symptoms consistent with degenerative changes in the ankle. The natural history of such a condition at a pathological level is for unrelenting progression, albeit slow over a period of years rather than months. The symptomatic manifestations are those of periodic exacerbations and remissions are superimposed on a level of underlying discomfort associated with the conditions listed."

58 On 1 June 2004 Dr Cross gave a report to Ms Sedgewick's solicitors. She noted that Ms Sedgewick had "ongoing persistent pain" and that she had developed "an adjustment disorder with depressive symptoms". In consequence she was emotional, angry, moody, sleep deprived and felt guilty because she could not work. She had gained weight and generally felt unfit and unhealthy. It was Dr Cross' view that the depression could resolve if the pain could be reduced.

59 On 9 September 2004 Dr Brendan Klar, an othopaedic surgeon reported after reviewing Ms Sedgewick on 7 June 2004 and 9 August 2004 on reference from Professor Smith. Ms Sedgewick had told Dr Klar that she had disabling pain "all day every day" for which she took medication. She said that she could not walk further than 120 metres before the ankle "became disablingly uncomfortable." The doctor noted a loss of 10 degrees of dorsi flexion and 10 degrees of plantar flexion in the ankle joint, that she had an antalgic gait and that her symptoms were consistent with moderately severe osteoarthritis on the left ankle joint "as a result of her fractures in the past". He recommended further surgery in the future, possibly an ankle fusion or an ankle replacement. It seems that at the moment ankle replacement is not available, although modern developments in medicine could permit it in the future. The cost would be in the vicinity of $15,000 for hospitalisation and medical fees. He was of the view that before that surgery she could benefit from an ankle arthroscopy and debridment which could delay reconstruction for a period of time and at a cost of $5,000. His view was that she could expect increasing pain with activity, inability to walk long distances and sleeping problems as a result of the ankle. He was of the view that she would require ongoing medical reviews following fusion or arthroplasty. His summary view is presented as follows:

"In summary Mrs Sedgewick has suffered two ankle fracture dislocations in the last eleven years. No doubt these have contributed significantly to the development of post traumatic osteoarthritis in her left ankle joint. I am satisfied that the treatment she had had to date has been expert and appropriate."

60 On 17 September 2004 Dr Voss was asked to reconsider his apportionment of the contribution of the two fractures in 1993 and 2000 respectively following a further examination of Ms Sedgewick. He revised his view, saying that about 40% was the contribution of the first (1993) injury and 60% the contribution of the 2000 injury. He noted that prior to the October 2000 injury surgical intervention might have been avoided, but that now she experienced increasing pain and disability such that surgical intervention was, in his view "inevitable". He recommended that an opinion be obtained from an orthopaedic surgeon as to whether fusion would be necessary in the future.

61 Finally there is a further report from Dr Klar given on 24 September 2004, in effect, the eve of the hearing. That report was in response to the question whether the injuries suffered by Ms Sedgewick were related to the 1993 injury, or the injury in 2000 and the relative proportion. As Dr Klar notes both were fractures involving the joint surface of the left ankle and both could thus have contributed to the areas of degenerative joint disease and arthritis from which Ms Sedgwick suffered. Dr Klar expressed the view, not surprisingly, perhaps, that the exact contribution of each injury was impossible to estimate. Both injuries contributed. Both were of similar severity. The doctor concludes merely that the 2000 injury was a fracture dislocation of the ankle joint and that such injury typically had a worse prognosis than a simple fracture without dislocation as happened in 1993.

The Defendant's medical reports.

62 Four medical reports were tendered by the defendant. The first was a report of Professor Oakeshott of 24 September 2002. The second and third were reports of Dr Battlay, being respectively of 2 December 2001 and 31 October 2003 and the final report was a report of Dr Prior of 6 July 2004. Although Ms Sedgewick was seen by a medical expert on the second day of the hearing and at the defendant's request a report written (the matter related to the need for further surgical intervention) the report was not tendered. It may be assumed that the report would not have assisted the case of the Defendant.

63 Professor Oakeshott notes in summarising Ms Sedgewick's history that she attempted everything at home, although paced herself. He said that she appeared to be in constant left ankle discomfort throughout the interview and favoured her left leg, walking with a limp. He noted reduced movement of the left ankle with dorsiflexion limited to 90 degrees and plantar flexion limited to some 70% of the normal range. He saw no wasting of the left calf muscle. He found she had "ongoing discomfort" of the left ankle, that the fracture had healed well although there was a propensity to develop degenerative changes in the ankle as a result of the 1993 injury. He estimated that one-half of the condition of the ankle should be attributed to the earlier injury and one half to the 2000 injury. He expressed the opinion that she was partially incapacitated for work should she wish to return to the work force, that she should not stand for prolonged periods, push or pull heavy objects or engage in heavy lifting. "She should not walk up and down flights of stairs nor should she work in confined spaces." He concluded that the October 2000 injury had had "a significant effect on her ability to lead a normal life to date" but that the then pending removal of the plate and screws should bring considerable relief of the symptoms she showed.

64 Dr Battlay in his first report noted that Ms Sedgewick walked with "a slight limp favouring the left leg but that there was no measurable calf muscle wasting on the left side. He found no instability of the ankle and that x-rays showed the fractures to be "anatomically aligned and substantially healed" although at the time there was evidence of a small spur. (This was later operated upon and removed). He concluded that Ms Sedgewick had "developed a fair range of movements" and "excellent rehabilitation of the calf muscles." He said she had a good exercise tolerance but should lose weight. He said that the ankle was "most probably" stiffer than before and that there was still pain. He found that she had made a good recovery from the 1993 fracture so that her symptoms were largely the result of the October 2000 injury. His prognosis was that there should not ultimately be further restriction on her activities.

65 In his October 2003 report Dr Battlay noted that Ms Sedgewick's impairment had not stabilized as a result of the subsequent surgery involving the removal of the plate and screws as well as the spur. He noted that after an initial two weeks of non- weight bearing activity on the ankle Ms Sedgewick had resumed walking and could walk for up to 1 ½ to 2 hours but that after that she was "laid up for a day". The ankle would swell after long periods of weight bearing. The doctor noted that Ms Sedgewick was taking pain killers for arthritis. He said that symptomatically, Ms Sedgewick was no different, save that there was better ankle movement but some minimal loss of extension. He said that she continued to complain of disabling symptoma, but, significantly thought that they were overstated.

66 Dr Battlay was of the view that further surgery was not medically indicated. It was possible that beyond normal retirement age she could need an arthrodesis of her ankle. He recommended that she avoid continuous walking but said that her incapacity for work following the accident was no more than six months. His ultimate conclusions are to be found in the following two paragraphs:

"In my opinion, she was significantly restricted in walking even prior to the accident. I would accept, however, that prolonged weight bearing activities would now cause more symptoms, than if it had not been for her second fracture.

She is at risk of further degeneration of the ankle. She will never quite return to her pre accident status. However, her first injury and operation have largely predisposed her to the development of osteoarthritis with the second injury producing only about one third of her total impairment."

Dr Prior, who gave the final report of this series, is a consultant psychiatrist. He set out Ms Sedgewick's history noting that she had said that her emotional symptoms had been chronic and that they had fluctuated with the pain, being most intense in winter when the pain was also intense. Ms Sedgewick suffered from mild insomnia, "plummeting" self esteem and guilt surrounding her inability to look after her mother and her partner. He energy was diminished, although her appetite was normal. She said that she covered up her emotional state. She said that there had been a significant improvement in her affective state over the previous two months when her irritability, crankiness and "snappiness" had decreased. She was now more optimistic and her self esteem and confidence had improved. Dr Prior's diagnosis was of "Adjustment Disorder with Depressed Mood (chronic sub-type, moderate severity)". It was caused by pain and the physical limitations on her, both in lifestyle and in her caring relationships with the mother and partner. The flatmate's heart attack in 2001 and subsequent return to the workforce had exacerbated Ms Sedgewick's condition. However, Dr Prior concluded that any psychiatric or psychological disabilities had only a minimal impact on Ms Sedgewick's ability to lead a normal life. Her real disability was the pain of which she complained and her physical limitation. Her general prognosis was that the adjustment disorder:

"... should remit fully when the causative stressor remits or when any of the enduring consequences of that causative stressor remit, or when the individual is able to make an independent adjustment to these new changed circumstances."

Conclusions from the medical evidence.

67 It is obvious that each of the medical opinions repeats the symptoms told to the relevant doctor by Ms Sedgewick in addition to providing results of a medical examination conducted by the doctor. If she was attempting to project symptoms more serious than those from which she was suffering so as to be inconsistent with the medical examination itself, it can be expected that the reports would more likely than not reflect that projection. Perhaps that was the view which Dr Battlay in fact formed. None of the other reporting doctors said that. Having regard to the video evidence which showed Ms Sedgewick moving without a limp over a lengthy period, albeit interrupted by car driving and lunch, I am not satisfied that Ms Sedgewick did have the severe symptoms she claimed.

68 On the other hand it seems incontrovertible that Ms Sedgewick did indeed fracture her ankle, did indeed suffer from a swollen ankle, did indeed have restricted movement and did indeed suffer pain, whether or not she overstated the symptoms she had to some extent as indeed I think she did. The psychiatric condition was clearly not greatly significant and it is clear from Dr Prior that she thought it would clear. Clearly Ms Sedgewick was regarded by the doctors as overweight and this is likely to have exacerbated her pain which was related to putting weight upon the ankle. No doubt it has some consequence, whether as a cause or as an effect I do not know. It is not a matter that is discussed in the evidence and accordingly I do not propose to take it into account.

The 1993 accident and its significance.

69 Reference has already been made on a number of occasions to the 1993 accident. Evidence concerning that accident did not occupy a great deal of hearing time. Ms Sedgewick also had an accident involving her left knee in 1989 when she was injured moving a wardrobe but it is not suggested that any present injury was related to that accident.

70 According to Ms Sedgewick's evidence in chief, the 1993 accident occurred on 28 May 1993 when Ms Sedgwick fell from a work bench while working with Framing Corner. She suffered a fracture of the left ankle and was treated by an orthopaedic surgeon. She had surgery to repair the fracture in May 1993 but continued to have problems with the ankle. Eventually it became necessary in January 1994 to remove the plates which had been inserted at the time of the original surgery. She was in considerable pain for some 6-8 weeks after the plates were removed but said that thereafter the ankle began gradually to get better and that it continued to improve for some years thereafter. She was away from work for some four months. Upon her return it seems she was able to work and did so for some four or five months until the business closed. Thereafter she was self employed for a while doing framing and also worked for two years running a video shop. Some time thereafter she stopped working and went on the sole parents pension. Despite a suggestion that her ankle really gave her no problem at least after 1995, she said in evidence that her going on the pension was, at least in part, because of the ankle injury which had the result that she could not stand for long periods of time or walk great distances. I have difficulty accepting without reservation her evidence that the 1993 accident was completely cured by the year 2000 with the consequence that it contributed nothing to the injuries she suffered as a result of the October 2000 accident. That is inconsistent with the medical evidence.

71 In 1995 she was examined by a doctor in connection with workers compensation proceedings she brought in respect of the 1993 accident. At that time she complained of some stiffness and difficulty in walking and standing. However, she said that by the time the year 2000 came around she was a lot better save that, she did develop in 1995 plantar fasciitis, ie irritation of the sole of the foot as a result of the way she walked after the 1993 fracture. She received treatment and was given orthotics which she wore thereafter so that, she said, the problem in the right foot went away.

72 Her evidence, which is not wholly inconsistent with the medical evidence in the present case, was that by the year 2000 she was left with a weakness in the left ankle and a slight "niggle" but otherwise no disability. As I have said I have some reservations in accepting this evidence completely. At the least, I think the medical evidence supports the view that by the year 2000 there was some degeneration (see Dr Klar's report of 24 August 2004) and a real likelihood that Ms Sedgewick would develop arthritis in the future that would cause her both pain and difficulty in movement. I think it is likely that she also had some stiffness, but not such as to cause her real difficulty in doing housework or other work around the home.

73 There is, clearly, a problem whether the 1993 accident contributed to the injuries which Ms Sedgewick now suffers from and if so what the extent of that contribution is. As a matter of principle the defendant is only liable to compensate Ms Sedgewick for the damages suffered as a result of its negligence in the 2000 accident. There is no liability to compensate her for damages caused by the 1993 accident. On the other hand, as counsel for Ms Sedgewick submitted, the defendant must take the plaintiff as she is and with such defects as she might have. This is popularly known as the "egg shell skull principle": Commonwealth of Australia v McLean (1997) 41 NSWLR 389. Under this principle a defendant will be liable for additional damage of a foreseeable kind suffered by a person who has some "special vulnerability". The damages must, as McLean makes clear at 407 be foreseeable and of the same kind as the damages otherwise caused by the accident. However, the principle does not extend to make a defendant liable for damages he or she has not caused, but which were caused by some other accident.

74 In the present case it may be accepted that in the period from the time of the 2000 accident and up to the present time, the injuries which Ms Sedgewick has suffered arose substantially if not wholly out of the 2000 accident. So, for example, the pain she has suffered to date had little or no relationship to the 1993 accident. It was brought about by the accident in 2000. She had no, or at any rate, insignificant pain immediately before the accident (the "niggle"). On the other hand, it is clear from the medical evidence that as time progressed, the 1993 accident was likely, to some extent, to contribute to her condition so that some proportion of her injury in the future will not really have been caused by the 2000 accident, but instead will be caused by the 1993 accident. The question then is to decide the contribution which the 1993 accident will have to the injuries which Ms Sedgewick will suffer in the future and the contribution which should properly be attributed to the October 2000 accident.

75 This was a matter upon which the various doctors who were asked to express an opinion differed. The percentages varied from 30/70, 60/40, 50/50 and 40/60, the latter representing a change of mind by Dr Voss from his original assessment of 60/40. As I have already noted, without seeing the doctors or hearing them cross-examined it is difficult for me to form a view as to which percentage to adopt. The burden lies on the plaintiff to establish her loss and if evidence adverse to the plaintiff's case given by a particular doctor is not challenged I can see no real alternative to the conclusion that unless they can be reconciled I can not simply ignore the evidence adverse to the plaintiff's case.

76 Counsel for Ms Sedgewick sought to submit that the evidence of percentages was irrelevant having regard to the egg shell skull principle. If that were the case I would have expected that counsel would have objected to the evidence being received on the grounds of relevancy. I do not, however, think that evidence was, as submitted, irrelevant. I would accept the evidence at least so far as the future that the 1993 accident will contribute 50% to the injuries and the 2000 accident 50%. A percentage of 50% is not inconsistent with what may be expected, seeing as how both occasions produced a fracture of the same ankle although the second fracture was a dislocated fracture whereas the 1993 fracture was more simple. Further, the predisposition to arthritis was likely to have come about as a consequence of the first accident but to emerge later as time passed. I note, also that there seems little disagreement among the medical experts that the second fracture appeared to have healed well and some opinions would suggest the prognosis for recovery was good. While that may conflict with the most recent evidence which suggests future surgery could be necessary, for example, fusion or even new technology such as a replacement ankle, (evidence which I accept) it may well be that the apparent conflict can be resolved by the fact that the present pain is related not as such to the 2000 accident but to the developing arthritis from which, it would seem, Ms Sedgewick now suffers. Reference should be made to the report of Dr Griffith (May 2004), the report of Dr Klar (24 September 2004) and the report of Dr Smith (27 April 2004).

77 It is necessary now to turn to the various heads of damage.

The heads of damages - general damages.

78 Under this head counsel for Ms Sedgewick claimed $75,000 having regard to her actual pain and suffering, in the past and into the future, the loss of enjoyment of pre-October 2000 activities (for example, her volunteer fire fighting activities), her age (56 years) and life expectancy, namely 28 years. I am conscious that there were two particular periods when pain was greatest being the two or more weeks immediately after the accident and a period, say again two weeks, after the plate and screws were removed. However, I accept that Ms Sedgewick has suffered pain outside these periods in addition to loss of mobility. I accept the submission of counsel for Ms Sedgewick that the discount for age should be a modest discount, say 5% and that what is to be compensated for here is not all the pain and suffering of Ms Sedgewick in the future, but only such as was really caused by the present injury; not such as was caused, for example, by the 1993 injury.

79 It is also relevant that if Ms Sedgewick is to have, as it is suggested, fusion in the future or ankle replacement and the assessment of damages takes that into account, that would likely reduce the pain and suffering which Ms Sedgewick may suffer in the future. There would be little point, otherwise, in the operation.

80 But for the first accident it might be appropriate to assess general damages without discount for age at around $50,000. It is necessary to reduce this to some extent, particularly so far as the assessment relates to the future, having regard to the contribution of the first accident. I accept that immediately before the 2000 accident Ms Sedgewick did not suffer pain as a result of the 1993 accident, although, as she said, there was a "niggle", presumably representing the arthritic condition which thereafter developed. Doing the best I can I would assess general damages after allowing for the contribution of the first accident and a small discount for age at $40,000. That assessment is made on the basis that say 70% of the final amount relates to the time from the accident until the present and the balance relates to the period hereafter. In diverging from the suggestion that I should adopt 50% as relating to the past and 50% to the future, I do so as well on the basis of the medical evidence that the fracture appears to have healed well and that in the event of a fusion operation or ankle replacement, it should not be expected that a high level of pain should continue unabated.

Interest on general damages.

81 I would allow interest on $28,000 for past loss at 2% per annum for 1478 days. This amounts to $2,267.62.

Past out of Pocket expenses.

82 The parties have agreed mathematically upon the amounts which Ms Sedgewick has expended since the time of the accident on medication including pain killers, anti-inflammatories and anti-depressants. Some part of that medication may relate to the previous accident in 1993, although I accept that the pain since the accident was probably not greatly affected by the 1993 accident. Given the psychiatric evidence which would suggest that the depression should abate I do not think that expenditure on future medication, to be shortly assessed should be regarded as continuing at the same rate. The agreed figure is $7,957.53.

Interest on past out of pocket expenses.

I allow interest at the rate of 5% per annum (one-half the Supreme Court rate of 10% per annum) for the period of 1478 days, being the period from the accident to today. This amounts to $1611.13.

Future Treatment Expenses.

83 I accept the evidence of Dr Klar that it is likely that Ms Sedgewick will require future surgery - initially an arthroscopy, and then either fusion or perhaps ankle replacement if that technique develops in the future. In so doing I realise this is contrary to the evidence of Dr Griffith in his report of 18 May 2004. However, I note that Ms Sedgewick was examined on the second day of the trial in respect of this aspect of the matter by a doctor employed by Jerrabomberra who gave a report which was not thereafter tendered. It may be inferred from this that the evidence of the doctor would not have assisted the case of Jerrabomberra. I also note that the future surgery may have some consequences on other heads of damage in that it should reduce the cost of medication in the future and to some extent, at least, the cost of specialist attendance, not to mention other costs. I would make allowance to take the sum of $20,000 into account for a future arthroscopy and the cost of fusion, including hospitalisation and medical costs. This is dealt with in [85].

84 There must then be taken into account the future costs of the general practitioner, specialists and medication. The claim for general practitioner is based upon 6 yearly attendances continuing for life totalling $5,160; for specialists it is based upon 2 attendances per year totalling $5734.22; for medication it is based upon $9.74 per week which totals $9,679.60 over the course of Ms Sedgewick's life. Each of these amounts incorporates the "3% multiplier", which converts them into a present value assuming an interest rate of 3%.

85 The evidence is not clear as to what medical services Ms Sedgewick would need if she undertook the future surgery contemplated. One might expect that the need for general practitioners, specialist treatment and medication would decline, and not stay the same as at present, or continue for life. The plaintiff has the onus of proof. Further, some part of these costs, if indeed they arise, would come from the 1993 injury and not the 2000 accident. Accordingly, in accepting the evidence of Dr Klar that the additional surgery would be likely to be necessary in the next five years, I think it is reasonable to allow claims for a general practitioner, specialists and medication for 5 years from now without making any adjustment for the contribution of the 1993 accident. I would then reduce the remaining part of the claim by 50% taking into account both the probability that the continuing necessity of medical treatment at this rate should not continue and taking into account the contribution of the 1993 accident, the effects of which are likely to become more pronounced the longer the period of time which elapses and which has not been taken into account in the initial five year period. On this basis I would allow for the first 5 years 30 attendances of General Practitioners at $45 per visit ($1350), 10 specialist attendances (2 per year at $150 per visit for 5 years) amounting to $1500 and medication at $9.74 per week. This amounts to $5,014.91 for the first 5 years, taking into account the 3% multiplier. In addition I would allow for the period commencing in five years time and continuing for the rest of Ms Sedgewick's life, 3 general practitioner attendances per annum at $45 per visit ($135 per annum) and 1 specialist attendance at $150 per annum and $4.87 per week for medication, which all amounts to $9,001.41 given a life expectancy of a further 23 years taking into account the 3% multiplier. To this will be added the cost of arthroscopy, $5,000, and fusion (cost $15,000 deferred for 5 years, $15,000 x 0.784 = $11,760). However I would reduce the damages for the future fusion by 50% to take into account the contribution of the 1993 accident. The total for this head of damages is thus $24,896.32.

Ankle brace.

86 It is hard to see why Ms Sedgewick should continue to need an ankle brace after a fusion operation. I would accordingly restrict this item to the period of 5 years from today. The amount allowed is therefore $443.96, after taking into account the 3% multiplier.

Psychiatric Treatment.

87 Having regard to the report of Dr Knox which recommended 10 sessions of psychiatric treatment (per session cost, $240) a claim is made for $2400. Dr Prior, on the other hand recommended no treatment, and, as at July this year, at least, suggested that the problem had somewhat subsided. Clearly the problem is related to the pain which Ms Sedgewick claims to suffer from. I accept the plaintiff's submission that the sum of $2400 should be allowed.

Care and assistance - Griffith v Kirkmeyer.

88 This claim is broken up into different periods. First there is the period of 2 weeks from the time Ms Sedgewick returned home from hospital. Ms Sedgewick in this period was bed ridden. The amount is calculated at 4 hours per day at $20 per hour. In principle this is not challenged. The care was provided by Ms Sedgewick's partner, Patricia. I would award $1120 as claimed.

89 Next there was a period of some 8 weeks thereafter when less assistance was required. According to the evidence, Ms Sedgewick's leg was in full plaster and she was able to walk only with crutches for six weeks (she later said 8 weeks from the hospitalisation) after she got out of hospital. The amount claimed is $1680. It was not really challenged. In fact the amount of care on the evidence may well have exceeded the amount claimed. I would award the sum of $1680 as claimed.

90 Next there was a period of two weeks following the operation for removal of the plate and screws and the spur. The claim is for a period of two weeks for 4 hours a day during which time Ms Sedgewick was cared for by her partner Patricia. Again this is not challenged. I accordingly allow the sum of $1120 as claimed.

91 After that 2 weeks Ms Sedgewick was again only able to walk with crutches and required personal care. She was unable for 8 weeks to do any housework. It is unclear in the evidence whether that 8 weeks includes the 2 weeks when she was bedridden. The evidence is that in this period Pat and Sam did whatever they could. As will appear, a paid cleaner was being employed in the period. The claim is for 1.5 hours per day notwithstanding that in the period Pat, as will appear was working 3 days a week. It seems to me that an allowance of 1 hour per day for 6 weeks is actually very generous in the circumstances. I would allow $840.

92 The next part of the claim is for 1 hour per day at $20 per hour from 10 weeks after the accident to 7 June 2002 when, for the first time a cleaner was employed. In this time the evidence was that Ms Sedgewick was able to resume doing some housework. She took over all the cooking, but could not clean the floors or the bathroom. Her partner did most of the shopping. (Before the accident Ms Sedgewick had done the shopping and driving). As Ms Sedgewick regained greater mobility she took on more and more of the housework. Her evidence was that she could not do vacuuming or mopping, particularly in the bathrooms. In the past she had shared housework to some extent with her partner (although not the cooking). Ms Sedgewick said that she did most of the things in the house before the accident, including the cooking and the cleaning and washing. Pat did the ironing, the washing up and dusting but not the heavy work. She suffered from an auto-immune disease (Sjogrens syndrome) which restricted her ability to do heavy work. In the period when Ms Sedgewick was immobile, Patricia had done the heavier work with some, but little contribution, it would seem from Sam. The claim made is for one hour a day care at $20 per hour for 66.6 weeks. The claim is resisted upon the basis that Ms Sedgewick and her partner were really sharing the housework as they always had, although the division of work differed from time to time. Around March 2002 (perhaps April) Patricia suffered a heart attack. Thereafter Ms Sedgewick did all the cleaning. Sam helped "whenever she could". It seems that was not too often. She did help with the vacuuming to some extent and the bathrooms.

93 In my view the amount claimed is too high. Obviously between March 2002 and 7 June 2002 no one cared for Ms Sedgewick in a physical sense. Pat, who no doubt did, at least help in the earlier period while Ms Sedgewick was on crutches and for some time thereafter, was unable to do so after her heart attack. The claim must therefore be reduced by say 13 weeks at $140 per week to reflect this. Further, as I have said, I think Ms Sedgewick has somewhat exaggerated her inability to do household work as illustrated by the video. It is also the case that there are reaons not associated with the accident which make it difficult for her to do heavy house work. Like many nurses she suffers from lower back problems - a result of lifting heavy loads as a nurse. She suffers also, as the report of Dr Cross accompanying her application for a disability pension states, osteo-arthritis in both hands. This developed in about 1998 and, in Ms Sedgewick's words "continues to get worse over the years." These matters, plus the residual effect of the 1993 injury make it likely that housework, particularly housework which requires bending or squatting, would be difficult for Ms Sedgewick even without taking into account the ankle injury in 2000. Furthermore, as I have found, Ms Sedgewick has somewhat exaggerated the extent of her disability, a matter I must also take into account.

94 This is not to say that Ms Sedgewick has obtained no assistance in the period in question, particularly the early period. However, it rather suggests that Patricia's assistance was more related to her normal assistance with household chores than care for Ms Sedgewick as a result of her inability to do household work as a result of the accident. I would allow in respect of the initial period of approximately 53 weeks one half of the amount claimed, that is to say, assistance for one half an hour per day to March 2002 at $20 per hour, namely, $3710.

95 Thereafter a claim is made for one half an hour per day from 7 June 2002 (108 weeks) to date again at $20 per hour, totalling $7560. This period overlaps with the period from September 2002 when Patricia returned to work, nursing for three days a week. No doubt she was unable to contribute greatly to housework in that period. It is unclear whether the earlier heart attack continued to manifest itself in this period. It is, however, more likely than not that only nominal assistance, was being provided to Ms Sedgewick in the period by Pat. In other words, unless there was paid help, a matter the subject of an additional claim, there was no one who cared for Ms Sedgewick in the period (at least so much of it as coincided with Patricia working) so as to entitle her to compensation, assuming, that is, that such care may have been necessary as a result of the accident. I discount any contribution from Sam who may perhaps have looked after herself.

96 I should, for completeness, say that since September 2002 Patricia has continued to work as a registered nurse. She returned to work, she said, and I accept her evidence, because Ms Sedgewick and she had run into financial difficulties so that it was necessary for her to earn money. She is 65 years of age and says that she is not coping well at work. Clearly she would like to cease work if that were possible.

97 I would not allow any amount for care and assistance of Ms Sedgewick from 7 June 2002. The cleaner most likely did such of the housework as Pat might have done had she not returned to work.

Interest on Past care and Assistance.

98 Ms Sedgewick is entitled to interest on her claim for past care and assistance at the rate of 5% per annum from the date of the accident until the date judgment is entered. The amount is $1714.88.

Paid assistance with cleaning.

99 Since 7 June 2002 a cleaner has been engaged to do the cleaning work. Initially Ms Vincent initiated the employment of a cleaner when she stayed some time with Ms Sedgewick's mother and paid for that cleaner. She had noted that some cleaning tasks had not been done. Thereafter a cleaner had been engaged. In part, no doubt, this came about because Patricia returned to work and was unable to assist with housework. In part a cleaner may have been necessary because housework presented difficulty for Ms Sedgewick not merely because of her ankle, but also because of her lower back injury and because of the osteoarthritis she suffered in her hands. Some of the need was also contributed to by the 1993 accident. I note here that these three matters themselves had not, prior to the 2000 accident stopped Ms Sedgewick doing house work. On the other hand the arthritic conditions, arising both from the 2000 accident and the osteoarthritis in the hands are such as to deteriorate over time. The total amount paid for a cleaner was $4,640.00. I would not discount the amount claimed by reference to the 1993 accident or the other conditions to which reference has been made. Interest on that amount should also be allowed for 871 weeks at 5% from 7.06.2002 which amounts to $553.62.

Future care and assistance.

100 In addition a claim is made over and above the paid cleaning which was the subject of the previous claim of one half an hour per day at $20 per week for life, totalling $69,566. I reject this claim. For the reasons I have given I do not think that anyone is providing care for Ms Sedgewick and further do not accept that she is unable in a continuing way, to do ordinary housework, particularly when she has the assistance of a cleaner to do the hard cleaning work. To the extent there is a difficulty it is clearly contributed to by the 1993 accident.

Cleaning in the future - Ms Sedgewick's home and her mother's home.

101 As I have already noted Ms Sedgewick pays a cleaner. The cleaner not only does the ordinary household cleaning of the living accommodation occupied by Ms Sedgewick, her partner and Sam, but also the self contained unit occupier by Ms Sedgewick's mother. The total cost is $80 per fortnight. A claim is made for the cleaning cost of the two living units for 5 years with the amount declining to $30 per week (that presumably representing cleaning only of the residential accommodation occupied by Ms Sedgewick and Patricia). The assumption that is made, presumably, is that the mother will live for 5 years. Since the amount is calculated to continue for the whole of Ms Sedgewick's life expectancy the calculation is made, presumably, on the basis that Patricia will live at least as long as Ms Sedgewick.

102 There is no basis in the evidence for assuming the mother will live for five years. That period could be the ordinary life expectancy of the mother if in average health. Such evidence as there is, is that the mother is in bad health. Ms Sedgewick said of her that her mother had a "massive amount of medical problems which could mean that she'd die in her sleep at any particular time, but there's been up and down with her health, but there's been nothing gross, no huge emergencies." The mother is presently 88 years of age. While Ms Sedgewick agreed that she would expect from her mother's health that she would not have much longer to live she said also that she could be here in 10 years time. In the circumstances, where Ms Sedgewick has the burden of proof and taking into account the mother's bad health I would find that for cleaning of the mother's flat, for the purposes of a Sullivan v Gordon claim, the additional cost should only be taken into account for a period of 2 years and not 5.

103 To the extent that the claim is a Sullivan v Gordon claim in respect of the partner there is a similar problem. There is certainly no basis for assuming that Patricia would outlive Ms Sedgewick. Apart from the fact that Patricia is considerably older than Ms Sedgewick, Patricia, like the mother, is not in good health. From the evidence it seems she has had cardiac problems since she was a child and had a heart attack in 2002. Again the onus would be on Ms Sedgewick to show on the balance of probabilities how long Patricia was likely to live. She has not done so. But clearly her life expectancy is considerably less than that of Ms Sedgewick. On the other hand she will continue to live in that part of the house where she lives with Pat whether or not Pat is alive.

104 As I have already said I have difficulty in concluding that the need for continuing cleaning assistance stems wholly from the accident in 2000. There are a number of factors including the 1993 accident, the lower back injury and the osteo-arthritic condition of Ms Sedgewick's hands which contribute to the difficulties she may have doing house work and, as I have found, those difficulties are exaggerated anyway.

105 I would allow one half of the amount currently being paid per fortnight for cleaning of the two homes for a period of two years, ie $20 a week for 2 years. I allow one half of $30 per week after the expiration of the 2 year period for life after taking into account the contribution of the 1993 accident. The total for future paid cleaning amounts to $16,228, after taking into account the 3% multiplier.

Paid outdoor maintenance.

106 Finally a claim is made for future lawn mowing, gardening, home maintenance and repairs. The claim is for an amount of $181.50 per session on the basis that four sessions would be required per year. Accordingly the claim is $13.96 per week multiplied by 993.8 (the 3% multiplier) totalling $13,875.00.

107 It seems that the property on which Ms Sedgewick lives was new or at least required no painting when it was purchased by her. In consequence little in the way of maintenance has been necessary to date. Such little as has been done has, it seems, been done by Mr Newman or neighbours. The evidence of Ms Sedgewick was that she can do the mowing (indeed it seems she has been doing it, although perhaps not with the same degree of frequency as before the accident) although it takes much longer to do it and she needs to rest in between times. The mower used is a ride on mower. She says that the vibration causes her pain. I accept her evidence that the ground of the property is uneven with bumps and cow manure making walking over it difficult. Before the accident she had, at least on one occasion, the assistance of a neighbour to make holes for fence posts and positioning cement. Neighbours have, as is not uncommon in the country, helped with repairs from time to time, repairs such as minor woodwork and fencing repairs, straightening fences and restringing wire on the fences.

108 I accept, also, that Ms Sedgewick is unable to do heavy work around the farm, although I find she can mow the property with the ride on mower. I find that her inability to do so stems in part from the accident but in part from the 1993 accident. I would, accordingly, reduce the amount of damages to take account of the contribution of the 1993 accident to the extent of 50%. Accordingly this head of damage is assessed at $6937.

Conclusion as to damages.

109 The above amounts, including interest, total $118,120.05. As I have held, Ms Sedgewick's own negligence contributed to the damages to the extent of 15%. It is accordingly necessary to reduce the sum arrived at by this percentage. I would accordingly enter judgment in the sum of $100,402.05.

110 Jerrabomberra should pay the costs of Ms Sedgewick.

111 I certify that the preceding One Hundred and Ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Hill.

Associate:

Date: 25 October 2004

Counsel for the Plaintiff R J taylor

Solicitor for the Plaintiff Pappas, j attorney

Counsel for the Defendant D Wilkins

Solicitor for the Defendant Hunt & Hunt

Dates of hearing: 27, 28, 29 and 30 September 2004

Date of judgment: 25 October 2004