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Supreme Court of New South Wales - Court of Appeal |
Last Updated: 20 February 2001
NEW SOUTH WALES COURT OF APPEAL
CITATION: NORTH SYDNEY MUNICIPAL COUNCIL v. HARRISON [2001] NSWCA 4
FILE NUMBER(S):
40802/98
HEARING DATE(S): 20/04/00, 05/05/00
JUDGMENT DATE: 02/02/2001
PARTIES:
NORTH SYDNEY MUNICIPAL COUNCIL (Appellant/Cross-Respondent)
MARGARET HELEN HARRISON (Respondent/Cross-Appellant)
JUDGMENT OF: Powell JA Beazley JA Giles JA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 1088/97
LOWER COURT JUDICIAL OFFICER: Kuner A-DCJ
COUNSEL:
P.R. Garling SC/S.T. White (Appellant/Cross Respondent)
R.J. Burbidge QC/H.J. Marshall (Respondent/Cross-Appellant)
SOLICITORS:
Phillips Fox (Appellant/Cross-Respondent)
Andrew Fegent & Company (Respondent/Cross-Appellant)
CATCHWORDS:
APPEAL AND NEW TRIAL - Point not taken below - When may or may not be raised - Court of conduct of trial - Point raised in Defence but not argued at trial - HIGHWAY AND BRIDGES - Negligence and nuisance - Injuries to user of highway - Liability of highway authority - In respect of what matters - Plaintiff fell down steps in an elevated footpath adjoining road while jogging late at night - Whether defendant liable
INTEREST - Award of interest as damages - Personal injuries - Non-economic loss - Rate of interest appropriate - How to be applied. D
LEGISLATION CITED:
DECISION:
Appeal dismissed; Cross-appeal allowed in part.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40802/98
DC 1088/97
POWELL JA
BEAZLEY JA
GILES JA
2 February 2001
1. ORDER that the Appeal be dismissed.
2. ORDER that the Cross-Appeal be allowed.
3. ORDER that the Judgment entered by Kuner A-DCJ be set aside and that, in lieu thereof, there be entered a Judgment in favour of the Respondent in the sum of (by majority) $120,578.62, such Judgment to take effect as on and from 24 September 1998.
4. ORDER that the Appellant pay the Respondent's costs of the Appeal and Cross-Appeal.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40802/98
DC 1088/97
POWELL JA
BEAZLEY JA
GILES JA
2 February 2001
v. HARRISON
1 POWELL JA: This is an appeal and a cross-appeal from a Judgment delivered and verdict found by Kuner A-DCJ in the District Court on 24 September 1998.
2 In the proceedings with which he was concerned to deal, the Respondent/Cross-Appellant ("Ms. Harrison") sought to recover from the Appellant/Cross-Respondent ("the Council") damages for injuries which she sustained in the early hours of 16 December 1995, while jogging along an elevated footpath adjoining the roadway in Bennett Street, Neutral Bay. The general nature of Ms. Harrison's claim against the Council is revealed by the following paragraphs in the Statement of Claim which was filed on her behalf (RAB 2-3):
"1. The Defendant is a Municipal Council duly constituted under the provisions of the Local Government Act and is liable to be sued in and by its corporate name and style.
2. At all material times the Defendant by itself, its servants and agents had the care and control and management of certain roads, footpaths, gutters, fences, drainage systems, flights of stairs and parks and gardens and associated works situated in Bennett Street, Neutral Bay in the State of New South Wales.
3. At approximately 1.00 a.m. on 16 December 1995, whilst lawfully using the northern footpath and proceeding in an easterly directly along Bennett Street, Neutral Bay the Plaintiff fell down a flight of stairs.
4. The Defendant, at all material times, owned (sic) a duty of care towards the Plaintiff.
5. The Defendant was in breach of the said duty of care and was guilty of negligence and/or nuisance.
6. PARTICULARS OF NEGLIGENCE
It is alleged that the Defendant was guilty of negligence in that the Defendant by its servants and agents:
(a) failed to take any or any adequate precautions for the safety of the Plaintiff;
(b) exposed the Plaintiff to the risk of injury which could have been avoided by the exercise of reasonable care;
(c) failed to inspect the said pavement, steps, lighting and surrounding vegetation under its care and control in order to ensure that the same was (sic) safe and would be readily identifiable to the public when utilising the pavement at night;
(d) failed to prune the vegetation on the southerly side of the northerly footpath situated just prior to the steps to ensure that it did not pass through the white fence and obliterate the light from the telegraph pole so that the steps would be readily identifiable and thereby avoiding any injury being occasioned to persons walking upon the said pavement;
(e) failed to ensure that the steps were adequately lit and that the light was not obliterated by any barrier, tree or other item that may shade the light;
(f) failed to keep the leading edges of the said steps painted white or in a luminous paint which would light up at night so that users of the footpath would be able to identify the steps and thereby avoid injury being occasioned to them;
(l) it is alleged that the Defendant by itself, its servants and agents unlawfully created a nuisance in that it:
(i) failed to keep an electric light and street lighting in a safe and secure position so that the light was not obliterated causing a danger to the public through lack of vision;
(ii) permitted a flight of steps and surrounds to be constructed in a manner so that became (sic) dangerous and defective as the Defendant well knew or ought to have known;
(iii) wrongfully suffered a certain pavement, vegetation and lighting surrounding the said pavement to remain in such fashion that it obliterated vision of a flight of steps and the flight of steps was unfenced or protected by a barrier or identified by a sign so as to be dangerous to persons lawfully passing upon or near the said steps."
3 In the Defence (RAB 17-18) which was filed on its behalf, the Council, in addition to putting in issue the principal allegations in the Statement of Claim, also pleaded:
"5. Further, and in the alternative, if the Plaintiff suffered injury, loss and damage as alleged (which is not admitted), such injury, loss and damage was caused by, or contributed to by the negligence of the Plaintiff.
(a) failing to keep any or any proper lookout for her own safety;
(b) failing to move with care in the area in which she was;
(c) jogging or walking whilst in an intoxicated state;
(d) failing to heed or heed adequately the physical characteristics of the area in which she was.
6. Further, and in answer to the whole of the Plaintiff's Ordinary Statement of Claim the Defendant says that if at all material times the Defendant had the care, control and maintenance of Bennett Street, Neutral Bay, it was in the capacity of a road or highway authority and not otherwise and was under no obligation to maintain the road or highway."
4 Despite the not unexpected defence raised in paragraph 6 of the Council's Defence, the hearing before Kuner A-DCJ did not proceed upon the basis that the Council, as a highway authority, was not liable for nonfeasance, if that were all that were established by the evidence, and was not liable in nuisance; on the contrary, it would appear that, on the hearing, the Council accepted that it owed a general duty of care to Ms. Harrison. That this was so is indicated by the following passage (RAB 37) in the "Introduction" in Kuner A-DJC's Judgment:
"4. The Council accepted that it owed to Ms. Harrison a duty of care but contended as the body having the care, control and management of the footpath and the stairs that it had done all that was reasonably require in response to the risk to which members of the public using the footpath and stairs were exposed. In issue in the proceedings was what it was that the Council had to do in respect of the risk foreseeable to members of the public and whether it had failed to do those things causing Ms. Harrison injury."
5 In the result, his Honour found that the Council had failed to discharge its duty of care to Ms. Harrison in a number of respects which are sufficiently summarised in the following passage (RAB 68) from his Judgment:
"119. Having regard to the evidence as a whole, on which I have based by (sic) findings of fact together with the particular evidence I have referred to when dealing with those matters, I am not satisfied that the Council had in place a satisfactory system to monitor the changes in the painted stair nosings or the vegetation as it affected the ability of a person to identify at night the stairway nor did the Council maintain the paint on the stairs in an adequate state or the vegetation growth in such a manner that it did not prevent a person using the footpath at night from seeing the railing adjacent to the stairs or so that it did not occlude the light illuminating the top of the stairs, the railing and in particular the strip of paint in its then poor condition.
120. I find that the Council failed to satisfy the standard of care imposed on it in all the circumstances resulting in Ms. Harrison not being aware of the stairway causing her to fall thereby sustaining injury."
6 Before considering the question of damages, his Honour considered the evidence insofar as it related to the question of contributory negligence and recorded his conclusions as follows (RAB 71):
"130. The ambulance records record that Ms. Harrison stated that she had consumed approximately eight alcoholic drinks. The hospital records record a number of entries to the effect that Ms. Harrison was intoxicated.
131. Although there is no expert evidence called on the issue of Ms. Harrison's intoxication I consider I am able to make an assessment on common experience based upon the volume of alcoholic beverages she admits she had consumed and her stature. I consider Ms. Harrison would have been affected to some degree by her consumption of alcohol and I propose to take that into account in coming to a view on her contribution to the accident. I consider that a Council in performance of its duty of care must have regard to the fact that persons using a footpath will be in varying states of physical condition either as a result of consumption of alcoholic beverages or infirmity.
132. Of more significance it seems to me in her lack of care for her own safety are that in circumstances where she was on an elevated pathway unable to see well ahead of her due to vegetation pushing into the pathway she continued to jog. Whilst it is not uncommon for people to jog along the footpaths at night, to do so in an area which is unknown to that person along a dark overgrown path exhibits a lack of care by that person for their own safety.
133. In the circumstances, I propose to reduce the damages awarded to Ms. Harrison by 20%."
7 When he came to consider damages, Kuner A-DCJ first assessed them - without reference to contributory negligence - in the sum of $125,360.78 made up as follows (RAB 87):
General Damages $ 35,000.00
Interest on past general damages of $17,500.00
@ 2% for 2.5 years 875.00
Past economic loss 10,792.34
Interest on past economic loss 2,698.09
Future economic loss 44,200.00
Lost superannuation 4,000.00
Past domestic assistance including interest 5,512.50
Future domestic assistance 840.00
Past out of pocket expenses 9,019.25
Future out of pocket expenses - treatment 12,423.60
$ 125,360.78
and, having reduced that sum by 20%, found a verdict for Ms. Harrison in the sum of $100,288.62 and directed the entry of judgment accordingly.
8 In its Notice of Appeal (RAB 89-92), the Council sought to have that verdict set aside and a verdict entered in its favour.
9 In her Notice of Cross-Appeal (RAB 95-96), Ms. Harrison asserted that his Honour erred in reducing her damages by 20% for contributory negligence, that his allowance for general damages was manifestly inadequate and that his allowance for future economic loss was manifestly inadequate.
10 I turn, then, to record the facts which gave rise to the proceedings at first instance.
11 Although, in its Defence, the Council put in issue the allegation in the Statement of Claim that at all material times it had the care, control and management of (inter alia) footpaths, flights of stairs and parks and gardens and associated works situated in Bennett Street, there does not appear to be any real dispute that, at the time of Ms. Harrison's accident, Bennett Street was located within the boundaries of the Municipality of North Sydney.
12 Bennett Street runs in a roughly West to East direction from its intersection with Wycombe Road, Neutral Bay on the West to its intersection with Murdoch Street and Bertha Road, Cremorne at its Eastern end - at that point Murdoch Street runs in a direction roughly South to North while Bertha Road at that point runs in a direction roughly from South-West to North-East.
13 Whatever may be the position further to the West in Bennett Street the land as one approaches the intersection of Bennett and Murdoch Streets and Bertha Road appears to fall from North to South and from West to East.
14 Because of the fall of the land in that area the Southern boundaries of the building allotments on the Northern side of Bennett Street appear to have erected on them what seem to be sandstone retaining walls - at some points as one approaches the intersection of Bennett Street and Murdoch Street the underlying bedrock is exposed.
15 Immediately adjoining those sandstone retaining walls is a cement footpath which appears to be of the usual width - about 1.2 metres or approximately 4 feet - of footpaths which one commonly finds in suburban residential areas. To the South of that footpath and apparently running for a distance of about 50 metres to the West from the intersection of Bennett Street with Murdoch Street (Black AB 200) is a garden which was said in some areas to be 4 or 5 metres (approximately 13 to 16 feet) wide (Black AB 200) - although it is not clear that this is so, some of the photographs which form part of the exhibits which were tendered at trial (see, for example, Exhibit C (Blue AB 42-70) suggest that that garden may be terraced to accommodate the slope from the North to the level of the carriageway of Bennett Street.
16 The footpath on the Northern side of Bennett Street to which I have earlier referred, connects with a footpath of similar dimensions on the Western side of Murdoch Street which footpath then runs in a Northerly direction. At a distance of about 30 metres to the West of the point where the two footpaths meet, one descends a set of 7 steps covering a vertical distance of about 1.2 metres (approximately 4 feet) to a lower level of the footpath. At a distance of approximately 12 metres further to the East one descends another 4 steps to cross a driveway from Bennett Street, which driveway is about 3 metres wide, then descends another 2 steps, and after a further distance of approximately 15 metres, a further 3 steps down to the footpath on the Western side of Murdoch Street. Whether or not this was also the case with the further steps to the East, it would seem that in December 1995, the leading edge of each of the 7 steps in the first set of steps had a white strip painted on it although the white paint had over time become worn.
17 The retaining walls to which I have earlier referred which were to the West of the first set of stairs were covered with a form of climbing fig which appears to have been clipped back. The walls adjacent to the stairs and the exposed bedrock beyond it to the East had patches of low growth, as for example Fishbone Fern, protruding from the crevices but not obscuring the steps.
18 Immediately to the South of the pathway and extending for a distance of about 20 metres to the West of the set of 7 steps is a post and rail fence through which some of the vegetation - which appears to include Fishbone Fern and other types of fern - protruded and along the rails of which there appear to have been vines such as Boston Ivy and Honeysuckle. That fence continued alongside the first set of steps. It is not possible to be sure of what adjoined the path beyond the first set of steps but it appears as if it may have been a low stone wall covered by the Boston Ivy. A little to the West of the top of the steps were what appear to have been 2 conifers. At the top of the steps was an electric light pole the light fitting attached to which faced, not the steps, but to the South. Adjacent to that pole was a laurustinus (viburnum tinus), a dense growing medium sized shrub, about 2 metres (approximately 7 feet) high.
19 Although it would appear that, at the time of Ms. Harrison's accident, the laurustinus may have been clipped back to about the level of the post and rail fence, it would appear that the creepers and, in particular, the Boston Ivy had grown through the post and rail fence as it descended alongside the first set of steps and tended to obscure that part of the path and the steps immediately adjacent to the lower rail of the fence.
20 Situated at a distance of about 25-30 metres in a roughly South-Easterly direction from the electric light pole adjoining the first set of steps was a further electric light pole located on the Southern side of Bennett Street at its intersection with Bertha Road. The light on that light pole is directed to the North, that is, towards the carriageway of Bennett Street. Situated at a distance of about 55 metres to the East from the electric light pole adjoining the first set of steps is an electric light pole located on the Eastern side of Murdoch Street - the light on that light pole faces West, that is, over the carriageway of Murdoch Street.
21 The materials which are before the Court do not disclose when it was that any of Bennett Street, the footpath, the steps, the post and rail fence or the garden were constructed or installed, or whether, at the time of their construction or installation, Bennett Street and the surrounding area was located within the Municipality of North Sydney; or by whom, or by what - a developer or the relevant local government authority or some other body - Bennett Street, the footpath, the steps, the fence or the garden were or was constructed or installed. The absence of such materials, despite the terms of paragraph 6 of the Defence which had been filed on behalf of the Council - all of which matters would have borne on the question whether or not the Council ought to have been held liable to Ms. Harrison in respect of the injuries which she sustained (see, for example, Lake Macquarie City Council v. Bottomley [1999] NSWCA 28 - road constructed by a developer; Gosford City Council v. Timbs [2000] NSWCA 31 - driveway constructed for owners of residence under construction; Sisson v. North Sydney Municipal Council [1966] 1 NSWR 80; Yass Shire Council v. Burnett [1999] NSWCA 35; The Council of the City of Wagga Wagga v. Fuller [1999] NSWCA 440 - pipe installed for drainage of stormwater from an adjoining property prior to construction of footpath; Florence v. Marrickville Municipal Council [1960] SR 562 - Council of a united area not liable for an injury incurred after the union but caused by the negligent act of the council of any constituent area before the union) - provides further support for the statement made by Kuner A-DCJ in his Judgment (see para. 4 (above)) as to the basis upon which the hearing before him proceeded.
22 Whatever may have been the position as to the time at which Bennett Street, the footpath, the steps, the fence and the gardens were built or installed, or the person or body by whom or by which they were built or installed, it seems clear enough that, at least of more recent times, the Council assumed a degree of responsibility for the highlighting of some at least of the many thousands of steps in the public footpaths in and around the Municipality of North Sydney and, as well, for the maintenance of the various public gardens situated within the Municipality.
23 Such evidence as there was as to the painting of steps in the Municipality was given by Mr. Harrison, a painter and signwriter employed by the Council for a little more than 10 years at the date of trial (Black AB 169-182) and a leading hand painter and signwriter for 10 years. In his capacity as leading hand painter and signwriter, Mr. Harrison's duties included the supervising and managing of his staff - which in 1995 amounted to 4 painters - carrying out inspections of, and organising the general maintenance of, Council buildings and properties, as well as the painting of signs and, where necessary, the highlighting of steps.
24 As best as one can judge it (Black AB 170-171), there was no regular system of inspection of steps with a view to determining whether or not they needed repainting, and repainting was done only when a complaint was received from a member of the public, or a report was made by a member of the Council's staff, or when, in the course of other maintenance being carried out in the area, the need for repainting was observed. The paint which was used by the Council's painters was an acrylic water based low sheen white paint, a quick drying paint, two coats normally being applied. The Council did not use "illuminated paint" because, so Mr. Harrison said (Black AB 172) it was not practicable as it needed to be sprayed, required too much equipment, was too labour intensive and too costly. Nor, so far as Mr. Harrison was aware, did the Council use built in anti-slip strips which, in his experience, were not suitable for exterior use and, so far as Mr. Harrison was aware, there were no warning signs erected in relation to any of the sets of steps in the Municipality (Black AB 173).
25 The system which the Council had for the maintenance of the public gardens within the Municipality was more extensive and, as far as one can judge it, far better organised than was the system described by Mr. Harrison for the highlighting of steps and the like. The evidence as to that system was given by Mr. Takans, the Supervisor of Garden Maintenance, and by Mr. Wickham, a team leader in the Garden Maintenance Section of the Council. Mr. Takans held a horticultural certificate - which required a course of study of some 3 years - and an Associate Diploma in Horticulture, which required a course of study of a further 2 years - his particular course of study for his Diploma being in the parks management area. Although he may not have any formal qualifications as a horticulturalist, Mr. Wickham appears to have had extensive experience in the field - he had worked as a groundsman at the Pine Trees Lodge on Lord Howe Island for about 3½ years, had been employed in the Garden Maintenance Section of Newcastle Council for about 6 years, had been employed by the Forestry Commission at Muswellbrook for 6 years prior to being employed by the Council and at the time of trial, had been employed by the Council as a team leader for approximately 6 years.
26 Mr. Takans' evidence (Black AB 182-194) was that he had been the Council's supervisor of garden maintenance for a period of 12 years, in which capacity he supervised the various maintenance teams employed by the Council - the duties of those maintenance teams were to maintain the horticultural aspects of public areas, gardens and parks. In 1995 there were four such maintenance teams, each comprising three people, a team leader and two others, and each assigned a particular area of responsibility. In 1995 the team responsible for garden maintenance of the Bennett Street area was Garden Plot Maintenance 4 ("GPM 4") of which Mr. Wickham was the team leader. Although, at an earlier stage, each team would work through the gardens in its area over a 12 week cycle, by no later than October 1995 the cycles had been reduced to 10 week cycles. The garden maintenance schedules for GPM 4 (Exhibit 4 - Blue AB 244-248) and the extracts from Mr. Wickham's diaries (Exhibit 5 - Blue AB 250-294) recorded that, on 12 October 1995, GPM 4 had carried out general maintenance in the garden in Bennett Street and had carried out some spraying in the gardens in Bertha Road and Murdoch Street (Blue AB 253) and that the maintenance in the Bennett Street gardens had been completed by 31 October 1995 (Blue AB 244).
27 Mr. Wickham's evidence (Black AB 194-219) was that within the area for which GPM 4 was responsible, there were approximately 65 garden areas (Black AB 195), the approximate total area of which was 32,000 square metres (Black AB 195). GPM 4 was responsible for the maintenance of those gardens, maintenance being described by him (Black AB 195) as "weeding, pruning, picking up litter, planting when need be, landscaping". Although, when he commenced his employment with the Council, the 12 week cycle to which Mr. Takans referred was in existence, within the period of about 2 years prior to the hearing, so it would seem, the system had been changed as the following passage in Mr. Wickham's evidence (Black AB 195) would indicate:
"Q. Is there a system in place as to when the team, if I can call them that, will go out and conduct maintenance work? A. Yes, we have a cycle that garden (sic), it depends of what's that word, some gardens have a higher priority than others. That may be on a one week cycle, a two week cycle, a ten week cycle or a twenty week cycle.
Q. And what determines in what category a particular garden plot falls? A. There is a system of, we give each garden a set of points depending on whether its close to public transport or close to a highway or close to sporting grounds, to how many people walk past. Some areas are out of the way and around the corner, they get on a twenty week cycle. Some areas for instance around the Civic Centre are on a one week cycle.
Q. And the categorisation of gardens in particular cycles, how long has that system been in place? A. Well, that current system with the 1, 2, 10 and 20 about two years. Prior to that all gardens were on a twelve week cycle.
Q. And had that twelve week cycle been in existence for some period of time? A. For as long as I've worked there yes."
28 In addition to the general description which he had earlier given as to the nature of the work carried out by his team, not only in the area for which the team had responsibility but also in relation to the garden area in Bennett Street, Mr. Wickham gave evidence as to the specific tasks that were carried out from time to time in the area of and adjacent to the garden in Bennett Street. That work included the trimming of the Boston Ivy from the post and rail fence to the West of the 7 stairs so that the vegetation did not become too bulky, the trimming back of the laurustinus "to be vertical from the fence" (Black AB 209), the removal of the Boston Ivy from the pole or the pruning of the Boston Ivy on the pole in such a way as to kill it (Black AB 203) and the removal of the Boston Ivy from the handrail of the post and rail fence as it descends alongside the steps.
29 As is apparent from what I have earlier recorded, except for the cyclical nature of the work carried out by each of the garden maintenance teams, the Council did not maintain a system of inspection of the various gardens within the Municipality (Black AB 213).
30 At the time of her accident in December 1995, Ms. Harrison was aged 23 years and was living with her parents in their home at 1 Dugald Road, Mosman. Ms. Harrison had completed her secondary education to Higher School Certificate level in 1990, following which she undertook a course of study in office administration at a TAFE college, a course which, as I understand it, she undertook as her family had interests in the fashion industry and she had aspirations in that industry (Black AB 13).
31 Having completed her TAFE course, Ms. Harrison commenced to work as a sales assistant in a clothing shop, a position which she held for a number of years, following which, so she said (Black AB 13), she "went into the manufacturing side", which she said involved "just organising the fabrics and making sure the orders were getting out, and a bit of computer work, cutting". Then, so Ms. Harrison said (Black AB 13), in 1995 she took a second job - as a sales assistant - as she was planning on going overseas and this was a means of enabling her to save in order to pay for her trip.
32 Some of the oral evidence which Ms. Harrison gave as to her employment in this period is difficult to reconcile with some of the financial records (Exhibit A - Blue AB 1-27) which were tendered on her behalf at trial. The Group Certificates (Blue AB 5,6,8) for the taxation years ended 30 June 1993, 1994 and 1995 tend to indicate that in the first two taxation years Ms. Harrison was employed full-time by "Petherton Pty. Limited t/a Hot Skies" and that, in the third taxation year Ms. Harrison was employed from 1 July to 29 September 1994 by Petherton Pty. Limited. Further Group Certificates for the taxation year ended 30 June 1995 (Blue AB 8) appear to indicate, first, that, between 29 October 1994 and 29 December 1994 Ms. Harrison was employed by a Mrs. Cherry and, as well, that between 25 October 1994 and 6 December 1994, Ms. Harrison received some form of benefit from the Department of Social Security. A letter from Ms. Harrison's accountants (Blue AB 4) and further Group Certificates for the taxation year ended 30 June 1995 (Blue AB 7) would indicate that between 15 March 1995 and 28 April 1995, Ms. Harrison was employed by Lopmosa Pty. Limited - which company apparently carried on business under the name of "Gulp Clothing Company" (Blue AB 2) and that between 28 April 1995 and 30 June 1995 Ms. Harrison was employed by Dalsan Corporation Pty. Limited - which company apparently carried on business as "Crows Nest Stock House" (RAB 32). Group Certificates for that taxation year ended 30 June 1996 (Blue AB 10-11) and Ms. Harrison's taxation return for that taxation year (Blue AB 24-27) would indicate that, between 1 July 1995 and 15 December 1995, Ms. Harrison was employed by Lopmosa Pty. Limited - as a second job - and by Dalsan Corporation Pty. Limited. Further Group Certificates for the same taxation year would indicate that between 1 July 1995 and 15 May 1996 Ms. Harrison was also employed by Commercial Nominees of Australia ATF Strategy One Master Trust (Blue AB 11) and that between 23 January 1996 and 28 June 1996 she received some $4,241.35 gross as some form of social security pension (Blue AB 10). This all very curious as, in her evidence in chief at trial (Black AB 14), Ms. Harrison described her "main job" as being "Gulp Clothing Company" and her second job (Black AB 13) as "at Crows Nest Stock House as a sales assistant".
33 In her evidence in chief at trial (Black AB 14) Ms. Harrison described herself at the date of her accident as being fit, with no health impediments of which she was aware; that she had an active social life; that she played sport - social tennis and occasional netball - and that she would go to the beach and swim. At the time of her accident Ms. Harrison had a boyfriend, Wesley Allan.
34 After she finished work on 15 December 1995, Ms. Harrison, who was planning to go to a party that evening with Mr. Allan, went home to change and to have something to eat. Later in the evening she and Mr. Allan went to the party - which she said was in Neutral Bay (Black AB 15) but he said was in Cremorne (Black AB 99) - travelling by taxi, so Ms. Harrison said, from Mr. Allan's house (Black AB 15) - Mr. Allen had no recollection of "how (he) met up with (Ms. Harrison) before going to the party" (Black AB 106). According to Ms. Harrison (Black AB 15) they reached the party at 8 p.m. or some time after and left about midnight or a little after - Mr. Allan's recollection (Black AB 106) was that they were at the party for about 4 hours.
35 According to Ms. Harrison (Black AB 15-16) while at the party she had 4 or 5 glasses of wine and, at the time when she left the party, she was not affected by alcohol. According to Mr. Allan (Black AB 99, 106) although he noticed that Ms. Harrison had a glass of wine at one stage, he had no recollection of how many drinks she might have had at the party - for his part (Black AB 106) Mr. Allan said that he had about 6 schooners of beer while at the party. Mr. Allan's recollection (Black AB 99-100) was that he noticed nothing extraordinary, or out of the ordinary, about Ms. Harrison's behaviour while at the party or after they had left.
36 The evidence of Ms. Harrison and of Mr. Allan as to the number of drinks that Ms. Harrison had while at the party and as to the apparent lack of effect upon her is, in the light of other evidence, curious - and that other evidence casts more than a shade of doubt over the accuracy of the evidence of Ms. Harrison and Mr. Allan. Thus, in the Ambulance Report (Blue AB 129-130) prepared by Officer Edgar, one of the ambulance officers who attended following Ms. Harrison's accident, appears:
"Pt states consuming approx 8 x alcoholic drinks this pm/am."
Further, the Triage Form (Blue AB 131), apparently prepared by Nurse McMullen following Ms. Harrison being taken to the Emergency Department of the Royal North Shore Hospital - the time of presentation being recorded as 01:44 - contains the following:
"Fell over ETOH last drank - 1/24 hours ago."
Further still, the Accident & Emergency Nursing Admission and Assessment Sheet (Blue AB 132-134) records the following (Blue AB 133):
"- Intoxicated this evening
Last ate/drank 0030h."
and again (Blue AB 134):
"- Intoxicated"
those notations having apparently been made by a Dr. Short, one of the resident medical officers at the hospital.
A further note, apparently made at 0255 on that morning by an orthopaedic registrar (Blue AB 136), reads (inter alia):
"Intoxicated - fell down steps this evening."
37 However, to return to the strict order of the narrative: Ms. Harrison's evidence in chief as to the circumstances leading up to and including her accident was as follows (Black AB 16-19):
"Q. When you left the party, did you leave with anyone? A. Yes I left with Wes.
Q. What was the plan about getting home? A. Well, there was (sic) no cabs because it was close to Christmas, so we were going to go up to the main road to get one.
Q. Where was the main road? A. Well, either Murdoch or Military Road we thought we'd get one.
Q. From where the party was, did you know where those roads were? A. Yeah, I knew in what direction.
Q. Were you familiar with Bennett Street as at December 1995? A. No.
Q. Have you ever walked along the footpath on the northern aide of Bennett Street - that's the uphill side, before this? A. No. No, I hadn't.
Q. In any event, some time in the early hours, between midnight and 1am, you were walking along the northern footpath in Bennett Street, is that right? A. Yes.
Q. In a direction towards Mosman? A. Yes.
Q. I think that's a generally easterly - general easterly direction, isn't it? A. Yes.
Q. What was the weather like at this time? A. It had been a bit drizzly, but it wasn't raining or anything.
Q. Was the footpath wet? A. Not that I recall.
Q. What were you wearing, do you remember? A. Yes. I was wearing shoes and pants, and a blouse.
Q. Can you have a look at this photograph? Do you recognise what's depicted in the photograph? A. They're my shoes I was wearing.
Q. You were wearing those shoes the night you fell? A. Yes.
EXHIBIT #E PHOTOGRAPH OF PLAINTIFF'S SHOES TENDERED, ADMITTED WITHOUT OBJECTION
MARSHALL: Q. Were you conscious, as you walked along the footpath, or - were you conscious of whether the footpath was straight or whether it went around a corner, or what? A. I was conscious it had a - it went up a bit.
Q. What was (sic) the lighting conditions like? A. It was quite dark.
Q. Could you see the footpath as you were proceeding along it? A. Yes.
Q. What were you and Wes doing? Were you walking side by side, or what? A. No, we were jogging.
Q. Was there some reason why you were jogging? A. We just wanted to go home and I had to work, so we just wanted to get a cab.
Q. Were you jogging fast or slow, running or what? A. No, I was just jogging at normal pace, not fast ---
Q. Were you in front, or was Wes in front, or - A. I was in front.
Q. By how far? A. I don't know exactly, because he was behind me.
Q. Was there a point along Bennett Street that the footpath levelled out? A. Yes.
Q. Could you tell them Honour from that point until where you fell what you observed? A. What do you mean?
Q. What did you see? A. Just along a path, it was overgrown and the railing had vines on it.
Q. Is this on your right hand side, or your left hand side? A. It was on my right hand side.
Q. What else did you observe on the right hand side? A. The balustrade had vines growing over it, and the bushes--
Q. Sorry, before you go onto the bushes, were you able to see the balustrade as you went along? A. Not for some distance before the stairs.
Q. After the stairs, did you see the balustrade? A. When I was at the bottom I did.
Q. We'll come to that in due course. As you proceeded along, were you aware of the balustrade? A. Yeah, I'd seen it.
Q. I beg your pardon? A. I had seen it.
Q. Where had you seen it? How far back from the stairs? A. Probably a metre, 2 metres.
Q. What did you see? A. The balustrade of what--
Q. What did you see? A. Just the handrail.
Q. You mentioned earlier bushes. Where were the bushes? A. They were all coming out underneath the balustrade, and coming across onto the pathway.
Q. Were they on the right hand side? A. Yes.
Q. In relation to the stairs, how close were they to the stairs? A. Can you ask that again?
Q. In relation to the top stair, how close were these bushes to that area? A. Oh, they were close. They were all over it, just before it.
Q. Did you see any lights in the vicinity of the stairs? A. There was one on the other side but not--
OBJECTION. LEGAL ARGUMENT ON USE OF WORD 'BUT'. USE OF 'BUT' NOT PRESSED.
MARSHALL: Q. Ms. Harrison, were you aware or not of any light illuminating the area of the stairs? A. No.
Q. Did you see the stairs as you approached? A. No.
Q. Did you see any sign warning you of the positioning of the stairs? A. No.
Q. Did you know the stairs were there? A. No.
Q. Were there any shadow (sic) that you could see in the area of the stairs or before the stairs? A. No.
Q. You told us about the balustrade, as you approached the stairs, did you see the balustrade clearly? A. No.
Q. Did you see the balustrade before you fell? A. No.
Q. Was there some reason why you couldn't? A. Yeah, there were vines on it, and there was all bushes coming out.
Q. What happened to you? A. At the bottom?
Q. Well, as you came to the area where the stairs were, at the top, what happened? A. I didn't see the stairwell and I landed at the bottom.
Q. How did you land? A. I must have caught my knee and I landed back and hit my head, on my back.
Q. Sorry, you-- A. On my back I landed.
Q. Where was your head? A. Sort of on - in the bushes on - sort of landing on the first - the last step.
Q. Did you look back up the stairs at any point? A. Well, I just sort of looked up.
Q. What did you see? A. A bit of the balustrading.
Q. Had you seen that balustrading before you looked up? A. No.
Q. What condition was the balustrading? A. It was still very overgrown."
(Ms. Harrison's shoes were described by Kuner A-DCJ in the course of his Judgment (RAB 38) as "flat shoes, commonly known as boat or deck shoes".)
38 Mr. Allen's evidence in chief as to the circumstances leading up to, including, and following Mr. Harrison's accident was as follows (Black AB 100-104):
"Q. At some stage you were walking along Bennett Street? A. That's correct.
Q. Had you been in Bennett Street before this evening? A. Not - no.
Q. Was there some purpose why you were walking in Bennett Street? A. We were walking from the party in Cremorne to Military Road to get a taxi.
Q. How did you know to walk along Bennett Street? A. I knew that the top of, I think it's Murdoch Street, was Military Road so we walked from the party the most direct route.
Q. Whereabouts on Bennett Street were you walking? A. We walked, I don't know where we entered Bennett Street but we walked from wherever we entered it to I think some lights at Bennett Street and Murdoch Street.
Q. Can I take you back from there. Was there a footpath? A. Yes we were walking along the footpath.
Q. What side of the road was that on? A. As you approached Murdoch Street it was the left hand side.
Q. Was that beside the road, below the road, elevated from the road? A. It was elevated above the road level.
Q. As you walked along, as you proceeded along the footpath were you abreast of Margaret, behind her or in front of her? A. I was slightly behind her at the time of the accident.
Q. If I could take you back about 10 or 15 metres before the accident what were the conditions like, what was the light like? A. We were I guess jogging along a very dark passageway, trees on one side, a wall on the other and Margaret was slightly in front of me.
Q. Did you see any overhead lighting? A. I did notice an overhead light at the time.
HIS HONOUR: Q. You did or didn't sorry? A. Did not.
MARSHALL: Q. Were you looking particularly or? A. No I wasn't looking for an overhead light.
Q. Did you see any source of light that illuminated the passageway along which you were proceeding? A. To me the passageway was very dark so no, I didn't see a source of light.
Q. Now in the, let's say five metres before the place where Margaret fell, can you describe the surroundings? A. They would be the same, trees ono the right hand side of me, a rock, I think a rock wall on the left. As I said it was very dark so I don't remember distinguishing characteristics.
Q. I think you appreciate Margaret fell down some stairs? A. Mm.
Q. Were you aware that there were stairs there? A. No.
Q. Could you see anything that indicated the footpath continuing or not continuing: A. At five metres away, no.
Q. Did you see any railings on your right hand side? A. I don't remember seeing a railing until after the accident.
Q. Did you see any shrubbery or vegetation on the right hand side? A. Certainly I remember there were trees on the right hand side as we were running down, jogging down.
Q. Could you describe them in the sense of whether they were--A. No, dark bushes.
Q. In relation to the passageway along which you were proceeding where were the bushes in relation to that passageway? A. They were on the right hand side which was the side I was on, certainly I'm not sure about the left. They were - they were thick on the right hand side.
Q. Did they appear to be pruned in a straight line or were they bushy or how were they? A. No, they didn't appear to be pruned. I don't remember them growing, you know more - I don't remember how much over the path they would have been growing but they certainly did appear to be a mass of bushes that were not pruned on the site.
Q. As you proceeded to the place where Margaret fell what sort of pace were you travelling at? A. I'd say a moderate jog, the pace at which I'd jog.
Q. Did something happen to Margaret? A. Yes.
Q. What was that? A. Margaret seemed to disappear into mid air in front of me. As that happened I looked down and I saw a thin white line and realised it was a staircase and Margaret had fallen down.
Q. Had you seen that staircase before then? A. No.
Q. Had you seen any evidence or any indication that there was a staircase? A. No.
Q. If Margaret had not fallen before you what would have happened to you?
OBJECTION. QUESTION WITHDRAWN.
Q. What drew your attention to the staircase or to--A. Seeing Margaret disappear and then looking down and seeing the white line.
Q. I take it you were able to stop? A. I was able to stop.
Q. Now did you go down the stairs? A. I heard Margaret land and went down the stairs, obviously looking--
Q. How was Margaret? A. Margaret was in a great deal of pain. Her head was stuck in some bushes at the bottom of the stairs.
Q. Which side? A. Her head was on the right hand side.
Q. Did you see the bottom of the stairs? A. I did see the bottom of the stairs when I'd looked back, Margaret was - I don't remember any part of Margaret being on the stairs, she'd cleared, she'd missed the whole staircase.
Q. Her head I think you said was in the bushes near the bottom of the stairs? A. That's right.
Q. Did you see any railing at that portion, at that point? A. I didn't, when I looked back up there was a railing on the staircase but I didn't see a railing where Margaret's head had landed.
Q. When you were at the bottom of the stairs looking up did you see any light? A. Yes, looking back up I could see there was a staircase and there was a light above it.
Q. In relation to that night what if any illumination shone from it onto the stairwell when you observed it from the bottom of the stairs? A. I'd say a largely filtered light.
Q. What do you mean filtered? A. It was filtered by I guess there must have been trees or something underneath it. The light that hit - it was clearly in shadow.
Q. I think I'd asked you and you said you'd not observed this light beforehand, before you got to the bottom of the stairs, is that right? A. That's correct.
Q. Was that because you hadn't looked or was it because it was blocked or was there another reason? A. The light wasn't obvious to me to be connected with the staircases (sic) as I was running along before and I don't remember seeing it.
Q. I think you summoned an ambulance with the use of a mobile phone? A. That's correct.
Q. Do you have a recollection of the length of time Margaret lay there waiting for the ambulance to arrive? A. I'd say 10 minutes.
Q. Was she conscious during this time? A. Barely conscious, in a great deal of pain.
Q. When the ambulance crew arrived did they provide her with some gas? A. Yes, gas was used while they splintered (sic) the leg.
Q. Did you travel in the ambulance with Margaret to the hospital? A. Yes.
Q. How was she during the course of the transportation? A. I'd say subdued, barely coherent.
Q. When you say barely coherent did you notice just from your observations whether there was any discernible effect upon her, amount of gas she was given? A. Certainly when the gas was given to her she did go into less of a state of consciousness. There was a great deal of pain so I remember quite a lot of gas being used.
Q. You mentioned the phrase earlier 'barely coherent.' What did you mean by that? A. I mean literally going quiet.
Q. Did you hear her say any words or make noises that were difficult to discern as words? A. There was sort of I guess a lot of, you know, sort of grunts and moans are the only thing I remember.
Q. Was this the way she was communicating at the time you left the party? A. No."
39 Mr. Allan's evidence as to Ms. Harrison's state following the accident and prior to her admission to hospital is difficult to reconcile with the various matters recorded in the ambulance report and in the records of the Royal North Shore Hospital to which I have earlier (para. 3 (above)) referred.
40 On her admission to hospital, Ms. Harrison was diagnosed as having:
(a) a complete dislocation of her right knee; and
(b) a laceration to the head.
41 Following diagnosis, Ms. Harrison underwent a closed reduction of the right knee that manipulation being carried out by a Dr. Farey - apparently the orthopaedic registrar at the hospital - under a general anaesthetic at about 4.00 a.m. on the day of admission. Following that reduction, gross instability to the valgus strain was noted along with a positive posterior drawer consistent with ruptures of at least the medial collateral and posterior cruciate ligaments. Long leg back and side slabs were applied. Following the reduction Dr. Farey asked Dr. Coolican an orthopaedic surgeon, to treat Ms. Harrison.
42 Dr. Coolican's treatment of Ms. Harrison and her response to that treatment is recorded in a report dated 18 March 1997 (Exhibit B (part) - Blue AB 29-31) as follows:
"I first saw Miss Harrison on 19 December where the knee was evaluated and gross ligamentous instability was noted. Miss Harrison was taken to theatre on that day where the right knee was examined under anaesthetic. At surgery complete ruptures of the anterior and posterior cruciate ligaments were noted along with a grade 2 medial collateral ligament injury. This required surgery in the form of a middle third patellar tendon posterior cruciate ligament reconstruction combined with semi-tendonosis and gracilis anterior cruciate ligament reconstruction. Grafts were isometric and following surgery the knee was stable.
Miss Harrison gradually mobilised following surgery and was discharged home on 24 December for follow-up in my office. The wounds healed primarily and Miss Harrison commenced a rehabilitation program. When seen on 18 January 1996 some four weeks following surgery, Miss Harrison was mobilising, non weight bearing with crutches. The wounds had primarily healed but the knee was quite stiff. Physiotherapy was commenced and Ms. Harrison was reviewed on 1 February, 1996, six weeks following surgery. At that time her knee moved from 0 to 35 degrees with solid anterior and posterior cruciate grafts. Physiotherapy continued and when seen on 29 February the range of motion had increased from 0 to 50 degrees. Following this range of motion plateaued despite ongoing physiotherapy. Ms. Harrison was admitted to Royal North Shore Hospital on 7 May 1996 for manipulation of the right knee under epidural anaesthetic. At surgery, both the anterior and posterior cruciate grafts were stable. The medical collateral ligament had healed nicely and there was minor lateral ligament laxity. Following surgery, Miss Harrison remained on a continuous passive motion machine and worked hard at range of motion. She was reviewed in my office on 23 May at which time her knee moved from 0 to 90 degrees. She continued with physiotherapy and on 20 June had a range of motion from 0 to 120 degrees. Both grafts remain stable. Miss Harrison was again reviewed on 28 August 1996 some eight months following her injury. At that time her knee moved from 0 to 130 degrees. The posterior cruciate graft was stable as was the anterior cruciate but there was a minor increase in translocation of the Lachman's sign. There was a prominent screw anchoring the posterior cruciate ligament graft which was irritating the soft tissues around the medial femoral condyle. It was decided to admit Miss Harrison to hospital for removal of this screw and at the same time arthroscopically evaluate the knee. Surgery was performed at the Mater Hospital on 27 September 1996. At this time, some broken fibres were noted in the ACL graft. The posterior cruciate graft was intact and there were normal articular surfaces. The screw was removed without difficulty.
Miss Harrison recovered well following this procedure, she rapidly regained her range of motion and worked hard at her quadriceps exercises."
43 A letter from Lopmosa Pty. Limited to Ms. Harrison's solicitors of 6 June 1997 (Exhibit A (part) - Blue AB 2) coupled with a Group Certificate for the taxation year ended 30 June 1997 (Exhibit A (part) - Blue AB 9) would tend to indicate that Ms. Harrison resumed work with Lopmosa Pty. Limited on 1 July 1996, her duties then being confined to that of general administration and sales, and that she resigned her employment on or from 22 May 1997. Ms. Harrison's resignation was tendered as it was her intention then to take the overseas trip which she had contemplated prior to her accident.
44 Meantime, these proceedings were commenced on 5 March 1997 when there was filed the Statement of Claim to which I have earlier (see para. 2 (above)) referred.
45 Before the proceedings were commenced, Ms. Harrison was examined again by Dr. Coolican who, in his report of 18 March 1997, reported further as follows (Blue AB 30-31):
"Miss Harrison was seen for the last time on 5 February 1997, a little over thirteen months following her injury. At this time, the quadriceps remained atrophied and Miss Harrison was developing stiffness with prolonged sitting in the Buddha position for more than five minutes.
Examination on 5 February 1997 demonstrated atrophy of the right quadriceps with full extension of the right knee and flexion to 135 degrees. There was no effusion. There was increased translocation of the Lachman's sign with a hard-end point and a mildly positive pivot shift. There was some laxity to the posterior cruciate graft in the vicinity of six to eight millimetres with a hard end point.
Miss Harrison's knee has gradually become more unstable following the major reconstruction. She was advised not to play netball but could play some turning sports with a graduated return to skiing and tennis. She will be reviewed in twelve months time.
Your note asked some specific questions most of which have been answered in the previous text. At this time it is too early to provide an estimate of the permanent impairment of Miss Harrison's right knee but I could safely state that Miss Harrison's right knee is far from normal and she will have ongoing permanent troubles as a legacy of her injury. At this stage I have no plan for further surgery but would add that Miss Harrison is likely to develop arthritis in the distant future and may require some surgery for this in the long term."
46 In a further report to Ms. Harrison's solicitors of 15 October 1997, Dr. Coolican wrote as follows (Blue AB 32):
"Thank you for your note of 30 April 1997 requesting further information on Miss Harrison. In answer to your question concerning further surgery, Miss Harrison is likely to develop arthritis in the knee in the long term future and is likely to require a total knee replacement. At present there is little in the way of arthritis but the natural history of posterior cruciate deficient knees and also on knees following posterior cruciate reconstruction is the gradual development of medial compartment and patello-femoral arthritis. If Miss Harrison were to require a knee replacement in the future, the all up cost in todays (sic) terms is somewhere in the vicinity of $15,000 to $20,000. Miss Harrison's knee is not stable despite reconstructive surgery and this will increase the chance of her suffering a meniscal tear in the future. If this were the case, Miss Harrison may require arthroscopic surgery at an approximately all up cost of $3,000.
In answer to question 3, concerning physiotherapy, Miss Harrison may require physiotherapy from time to time particularly if she develops patello-femoral pain in association with her posterior cruciate graft laxity. I would estimate that she may require approximately five visits per annum at a cost of $40 per visit. Miss Harrison may also require occasional medication such as simple analgesics and in the distant future may require some non steroidal anti-inflammatories but the cost would not be more than approximately $50 per annum.
I plan to review Miss Harrison's progress in February 1998 with fresh x-rays and at that time will be able to provide you with a prognosis."
47 On 9 May 1997, Ms. Harrison was examined on behalf of the Council by Dr. Morris, an orthopaedic surgeon. In a report (Exhibit 2 (part)) written by him to the Council's solicitors on that day, Dr. Morris wrote (inter alia) as follows (Blue AB 121-122):
"OPINION
DIAGNOSIS: There would appear little doubt that this lady suffered a total dislocation of her knee with rupture of significant ligaments within the knee; these have been repaired with what would in all the circumstances appear to be quite a good result though there is still some laxity and presumably instability as a result, with some residual wasting of the quadriceps.
At this time, there is no evidence of degenerative change within the knee joint but I would not rule out a distinct possibility that she could develop longterm degenerative change within the right knee.
The circumstances surrounding the fall would be of some interest. She was coming home from a party at midnight and she actually made the statement to me that she did not see the stairwell.
As indicated in the first paragraph due to not being aware of your additional letter of 8.5.97 I made no further enquiries regarding the circumstance of her fall.
In regard to the other points you raise regarding physiotherapist's notes; I have seen this but I think one would have to accept the fact that there are ongoing demonstrable problems within the knee and that she required a manipulation under anaesthetic for restitution of full range of knee movement subsequent to that note being made, so that I think it would have to be seen in the full context of what is undoubtedly a severe knee injury with even at this time, some definite residual disability.
ATTRIBUTABILITY: The present state of affairs would certainly appear to be a direct consequence of her fall.
FITNESS FOR WORK: This lady's present disabilities are genuine enough and work involving running would clearly be unsuitable and even a job involving a lot of walking might well be somewhat difficult. However, an ordinary range of duties, standing or sitting and normal housework would be reasonable.
I can see no reason why she should have problems lifting weights with her arms and shoulders or any particular difficulty carrying children. I think the risk of arthritis is a real risk.
I would assess some twenty percent permanent loss of efficient use of her right leg but no problem with the head."
48 At the time of Ms. Harrison's resignation from the employ of Lopmosa Pty. Limited and prior to her leaving for overseas, she was examined by Dr. J. M. Ellis, another orthopaedic surgeon, who reported to her solicitors on 27 May 1997. As that report (Exhibit B (part)) was the latest of the reports tendered on Ms. Harrison's behalf at trial, it is convenient, here, to set out a significant part of it. It was (inter alia) as follows (Blue AB 34-37):
"PRESENT COMPLAINTS: She has pain in her right knee which she feels anteromedially, especially if she is in one position for too long, such as sitting on the floor. She has some sharp pain on movement which she thinks is due to movement of the kneecap. She has been advised not to play netball. She does not ski or waterski.
She works as a production organiser manufacturing fashion garments. She cannot kneel on the cutting tables because of pain in the right knee. Sometimes this is really painful.
Three months ago she had to go home from work for half a day because of pain felt in the 'whole front of the knee'. She had got up too quickly and the 'kneecap moved over'. A physiotherapist taped the knee for six weeks and she felt better. She changed the tape herself every day. About twice weekly she has sharp pain on movement felt in the centre of the front of the knee. This is becoming less frequent.
She can run slowly but limps. She swims with no pain. She plays no other sport.
She has pins and needles in her legs after sitting for long periods. This is present in both legs equally. She sleeps ten hours. If she has a very busy day, the right knee is more limited in movement range on waking and she has a hot shower and exercises the knee in the shower. She drives 40 minutes to work from Mosman to Alexandria. She has no trouble driving. She works forty hours a week, stands/sits 70/30. There are no stairs at work. If she has to go up and down stairs she holds the rail because the right knee feels unstable. It does not, however, give way. She does exercises regularly and the stability of the knee is improving.. Her friends think she limps. Her productivity is slightly limited because of her right knee condition.
She lives at home, her mother does most of the household duties for a household of four people.
The right knee does not lock, does not swell, does not give way. It clicks in the morning.
Otherwise she is a healthy, active person.
ON EXAMINATION: Her height is 5 ft 2 ins (158 cm), her weight is 9 st 11 lbs (62 kg).
Right knee: The knee flexes to bring the heel 9 inches from the buttock, compared with the left which has full flexion.
The right knee has slight AP laxity which is chiefly due to anterior cruciate ligament slackness. There is, however, a slight increase of genu recurvatum indicating slight posterior cruciate lazity.
She walks well, walks on heels and on toes, trots normally, squats two-thirds the normal range.
Forward flexion enables her to touch her toes. She sits upright from the supine position without difficulty. EHL contracts strongly in each leg. Straight leg raising is within normal limits (over 60° on each side). Pedal pulses are present, leg lengths are equal. The right thigh is 2cm less in circumference than the left and the right calf 1½ cm less in circumference than the left.
Ankle jerks, knee jerks are present and equal. Systematic examination of feet, ankles, left knee and both hip joints show no abnormality. There is a 13 cm scar antero-medially in the front of the right knee.
Upper limbs: No abnormality. There is a full range of active, painless movement of all joints of both upper limbs. Biceps, triceps and BRJ jerks are normal. The shoulders are not tender. Sensation is normal. The right grasp is 210 mm/Hg and the left is the same. This is a powerful adult woman's grasp.
The cervical spine and lumbar spine have a normal range of movement and are not tender.
X-rays 16.12.95 right knee shows complete dislocation of the right knee with the tibia and the patella being dislocated anteriorly and upwards. Both cruciate ligaments must have been ruptured and the collateral ligaments must have been damaged.
The right ankle shows no abnormality.
27.8.96 x-ray shows two screws in the tibia, one screw in the medial femoral condyle and one clip of the upper medial aspect of the femur.
Arthroscopy photographs are labelled anterior cruciate ligament graft and posterior ligament graft and the x-ray shows two tunnels in the bone which correspond to cruciate ligament repair.
COMMENT: This patient has had a severe disruption of the ligamentous structures of the right knee in a fall 16.12.95. She has had an extensive reconstruction of the knee (a six hour reconstruction by a skilled knee surgeon). The knee is very much more stable than it would have been without reconstruction but there is still some laxity and the knee and the calf and thigh muscles are still wasted. She continues with exercise and can do most of her work in fashion clothing. She cannot kneel on the cutting table because of her knee pain.
She has been advised not to play vigorous sport.
She will be able to swim, to dance and to do activities of daily living which do not require the most strenuous and prolonged use of her right knee. It is likely that she will eventually suffer from osteoarthritis of the right knee but this may not be for many years. It would help in an assessment of the patient's prognosis to know exactly what was found in the knee. The photographs from the arthroscopy appear to show a normal medial meniscus but the lateral meniscus and the whole of the medial meniscus cannot be seen.
The permanent impairment of the right leg at and above the knee is assessed at 30%.
It is likely that she will eventually develop osteoarthritis in the knee and probably in the remote future will come to right total knee replacement, the cost of which is enclosed.
In answer to the particular questions in your letter 23.1.97:
1,2,3,4, are answered above.
5. The initial injuries and present complaints are directly referable to the accident 16.12.95.
6. The patient was totally unfit for seven months after the accident and was then fit for part-time work for four months. She now works full-time and is fit for the work she is doing except that she cannot kneel on the cutting table.
7. She should continue with exercises of the right knee with some physiotherapy supervision at least until she has built up the muscles of her right thigh and calf to parity with the left.
I think that it is likely that she will eventually come to total knee replacement but this is likely to be many years in the future.
8. At present she needs no further medication than an occasional pain-killing tablet and occasionally inelastic strapping to strap the right knee.
She would require physiotherapy supervision once monthly for the next year ($50.00 per session), three rolls of inelastic strapping over the same period of time ($30) and mild analgesics (should cost no more than $10 per year).
9. Her prognosis at first sight is good in that she has a fairly stable knee which has been expertly reconstructed. The damage to the ligamentous structures of the knee, however, was extreme. The details of the reconstruction are not available. If artificial ligament was used in the reconstruction it is understood that this does not have a permanent 'life' and will weaken eventually. The x-rays taken at the time of the accident show that the patient had a complete dislocation of the knee so that most of the major ligaments of the knee have been either destroyed or damaged. It is unlikely that she will live a normal life for the next thirty years, even a life free of strenuous sport, without suffering complications of knee injury. Certainly it can be expected that she will develop osteoarthritis earlier than she would in the normal course of events and likely that she will come to total knee replacement before completing a normal life span."
49 On 8 August 1997, Dr. Morris, having been asked to provide a supplementary report in the light of Dr. Ellis' report of 27 May 1997, wrote to the Council's solicitors as follows (Blue AB 123-124):
"I have reconsidered my original notes and reports to you as well as Dr. Ellis' report.
In response to Question 1, I did indicate in my original report that there is a definite possibility of arthritis developing within the knee; the time of development of arthritis is entirely unpredictable but in a very approximate way it is unlikely that it would progress with sufficient severity to require performance in less than 10 years, and it may of course be that it will never progress to this point.
In response to Question 2, I have considered the list of fees; by and large the list set out by Dr. Ellis is correct; the only possible question I would raise would be the necessity for inpatient treatment in a convalescent hospital for fourteen day; you will note that the per day charge listed for a convalescent hospital is more than that for an acute care hospital which would be surprising; I would also point out that although in certain cases where people have no home support and are particularly aged and frail, convalescent hospitals are employed in such circumstances but the majority of such post-operative cases on my understanding would go home by ten days, and fourteen days would I think be an outside estimate even for an acute care hospital.
This therefore would I imagine bring the estimate down by the appropriate amount namely $6,202.00.
In response to Question 3, it may well be that this lady will require physiotherapy in the years ahead if or when degenerative change within the knee joint develops.
In a general way one would recommend course (sic) of not more than three months at a time, and typically much less than that, perhaps once every year at a maximum.
The program set out by Dr. Ellis for physiotherapy once a month over the ensuing year following the accident would be reasonable in my view, but would not be continued with this frequency past one year.
If the patient underwent total knee replacement then of course there would be intensive physiotherapy in the months following surgery and the estimates of costs set out by Dr. Ellis in my view are probably reasonable.
In response to Question 4, I think this person is even now suffering the complications of knee injury, and the present level of complications are likely to remain, and as indicated previously there is a real chance that the complications will become more severe, namely that she will develop osteoarthritis in the knee; it is impossible to put a precise figure on this probability other than to say that it is definite.
Furthermore the possibility is raised by Dr. Ellis that if synthetic material was used for the ligament reconstruction or for that matter even if tendon was used, there is also the possibility of delayed re-rupture of the reconstructed ligaments, quite apart from the possibility of development of arthritis.
I think therefore on any view of it one could say that she is unlikely to live a normal life for the next thirty years without suffering some complications of knee injury.
Precisely what these may be is of course not certain.
In regard to the final question you raised I doubt that the overall course of events for her knee in the years ahead is going to be altered one way or the other by not having physiotherapy treatment once a month for the next year as set out by Dr. Ellis; in any event Dr. Ellis is not the treating doctor and I am not sure that his proposed course of post-operative physiotherapy was in fact to have been followed."
50 On 9 January 1998, Dr. Ellis, apparently in response to a request from Ms. Harrison's solicitors, wrote to them as follows (Blue AB 39):
"A. The claim for future out of pocket expenses for medical treatment and medication appears to me to be reasonable. Her age is 25 years. It is likely that she will need a total knee replacement for the right knee because of osteoarthritis of the right knee which is developing as a result of the injury sustained 16.12.95.
If the knee replacement becomes necessary in the next twenty years, which is indeed probable, it will mean that the total right knee replacement will be necessary before the patient is 45 years of age and if she lives a normal lifespan, she probably will need a revision total knee replacement of similar type. The cost of revised knee replacement is enclosed. It is noted that there probably will need to be bone graft used for a revised replacement.
B. There is no doubt that her earning capacity will be diminished because of her right knee injury. She will be unfit for the most strenuous and rapid use of her right knee. This will become progressively limited as the osteoarthritis in the right knee increases.
C. It is likely that she will have to retire from work which requires strenuous, active and repetitive movement of her right leg, in particular the right knee, at an earlier age than she would in the normal course of events. I cannot tell, of course, what other work in the industry she could enter. In terms of the ordinary work which she does at present, I think it not unreasonable that she will be forced to have an early retirement, ten years prior to the statistically average retirement age of 65 years."
51 That letter and other material having been referred to him by the Council's solicitors, Dr. Morris, on 5 March 1998, wrote to the Council's solicitors (inter alia) as follows (Blue AB 126-127):
"In regard to the proposition of five visits per annum to a physiotherapist for twenty-eight years, this may possibly be so on an average basis, but it would be an unusual pattern of attendance; if arthritic or painful problems were to develop within the knee she might well have courses of physiotherapy which would normally be rather more intensive, over a short period of time, say a few weeks or a month or two.
I would accept however that some allowance might be reasonable.
In regards the question of possible development of osteoarthrosis, I would refer you to my earlier supplementary report of 8/8/97 where I canvassed this at some length, and although this specific development of osteoarthritis in my view is probably less likely than not, the potential for some form of future problem is undeniable.
I have already considered Dr. Ellis' original estimates of costs and my own view on these and I would refer you to this.
However I note that in his letter of January 1988, what is being proposed is that if she undergoes a knee replacement in the next twenty years, that it will not last the remainder of her life and a revision operation would be required.
While this sequence of events is certainly possible, I think it would have to be regarded as being of low probability given that at this time she has no evidence of degenerative change, and furthermore that the history of development of joint replacement is such that their durability has steadily improved, and it would be speculative to suggest that a knee replacement in say twenty years, would not be capable of lasting a patient's life span.
Whether such a hypothetical further knee replacement would in addition require bone grafting, again is speculative.
I would have little doubt that this person would be able to engage in full-time employment of a clerical or retail nature including a shop assistant."
52 The proceedings came on for hearing before Kuner A-DCJ on 28 August 1998 and continued thereafter until 2 September 1998.
53 Ms. Harrison's evidence in chief at trial as to what she had done after she resigned from her employment with Lopmosa Pty. Limited, as to her then present employment and as to what she said were her continuing disabilities were summarised by Kuner A-DCJ in the course of his Judgment as follows (RAB 73-74):
"144. On 22 May 1997 Ms. Harrison resigned from GULP Clothing to undertake the trip she planned before her accident. She visited New York, Paris, Spain, London, Turkey and Greece and that required a lot of walking. Her right leg was sore and swollen on many occasions and she was required to attend a doctor in London. Travelling by aeroplane causes her knee to swell and she was incapacitated during the trip on occasions, particularly being unable to play sport with her friends during that time. She was very conscious of her knee and found it difficult to carry packs with weight and had to be careful when she walked about. Provided she walked on even terrain, she could walk for 3 to 4 hours at a time but her knee did get sore. She has no confidence in the strength of her knee over uneven surfaces.
145. Ms. Harrison is now employed as the manger of a card shop in Hammersmith near London. Her duties include buying, managing staff and doing the cash registers.
146. Her present difficulties are that she has problems using a ladder to reach high shelves, she has difficulty kneeling on hard floors, she cannot squat for any length of time, she cannot carry heavy objects but she has no problem shopping for groceries.
147. Ms. Harrison also has difficulty playing with her nieces and nephews as she considers she is unbalanced when she tries to pick them up and carry them. She has difficulty with domestic chores requiring kneeling on the floor or other hard surfaces. She considers that her scarring is unsightly and she is concerned about her different sized quadriceps.
148. Ms. Harrison's right knee has remained the same for the past year and not caused particular difficulty to her, although she sometimes favours her right leg in cold weather and is nervous that she may slip. She is unable to snow or water ski and not able to walk as far as she could before her accident. She has not returned to tennis, although she tried on one occasion but found her knee was unstable. She has difficulty running.
149. Ms. Harrison is conscious of her scar and did not go to the beach during the summer of 1996/97 and only wears shorts when she goes to the beach, whereas in the past she had done so on other occasions.
150. Her leg feels different when it is touched and she does not like others to touch her knee. One part of her leg has no feeling which is on the opposite side of the scar below the holes which are evidence (sic) on her knee.
151. Ms. Harrison occasionally sees doctors for her knee but has not done so for about the last 6 months. She wears a woollen brace when she needs relief from her knee soreness and that costs about £5 on each occasion.
152. She has visited Australia on a number of occasions for this case, travelling from England by plane. On each occasion her knee has swollen up and was quite painful. She undertakes exercises when that occurs and it takes about 4 hours for her knee to recover."
54 The evidence tendered at trial on behalf of Ms. Harrison comprised, in addition to Ms. Harrison's own evidence, the evidence of Mr. Allan, of Mr. Richard Harrison, the plaintiff's brother, whose evidence as to what he claimed he observed as to the state of the vegetation adjacent to the steps in 1995 was not accepted by Kuner A-DCJ as accurate; of a Ms. Thomas; of Mrs. Harrison, the plaintiff's mother as to Ms. Harrison's need for domestic assistance; of a Mr. Castor, a consulting arborist, from Tree Wise Men Australia Pty. Limited, as to matters relating to the vegetation adjacent to the path and the steps; and of Dr. Adams, a consultant in ergonomics and occupational safety management, who dealt with such questions as the foreseeability of the risk of injury to people using the path and the steps, and such actions as could have been done to avoid or at least reduce the risk of injury to such person.
55 Both Mr. Castor's report (Exhibit C (part)) and Dr. Adams' second report (Exhibit C (part)) disclosed that the light fitting which had previously been attached to the electric light pole adjacent to the top of the stairs had been removed and that there had been installed a new pole located some 3.5 metres down the slope with the light fitting positioned considerably lower than had been the case with the former light fitting and with the position and design of the light fitting such that the light would be projected onto the steps. Information revealed by documents in the Council's records (Exhibit K - Blue AB 91-92) appeared to indicate that alteration had been sought by the Council from Energy Australia prior to, or in, July 1997.
56 The evidence which, in addition to that of Mr. Justin Harrison, Mr. Takans and Mr. Wickham to whom I have earlier referred, was tendered on behalf of the Council at trial was that of Mr. Watson an electrical and lighting consultant, whose reports (Exhibit 2 - Blue AB 120-127) were directed to the adequacy of the street lighting in the vicinity of the intersection of Bennett Street, Murdoch Street and Bertha Road and, in particular, adjacent to the steps, and, as well, to the visibility of the steps at the time of the accident, Mr. Watson's inspections having taken place prior to the change in the lighting adjacent to the steps to which Mr. Castor and Dr. Adams had referred in their reports.
57 Reduced to its most simple form, the case which, at the conclusion of the evidence, Ms. Harrison sought to advance was that the Council failed to take all reasonable steps to ensure that the steps were visible to persons taking care for their safety, the particular matters of which she complained being:
(a) failure to ensure that the nosing strip on each of the steps was adequately maintained; and
(b) failure to ensure the vegetation in and around the steps was adequately pruned to ensure it did not interfere with the light cast from the light pole adjacent to the steps.
58 In the course of his Judgment, Kuner A-DCJ, having recounted the evidence tendered in respect of each matter of complaint then recorded his findings of fact.
59 Under a heading "The painted white line at the top of the stairs" his Honour recorded his findings of fact as follows (RAB 59-60):
"89. Having regard to the whole of the evidence and particularly on the issue of the state and visibility of the painted white line the evidence of:
(a) Ms. Harrison that she did not see the white line;
(b) Mr. Allen that he saw the white line but only after Ms. Harrison had fallen and would not have done so unless Ms. Harrison had fallen and his vision was directed towards the white line as a reaction to that event.
and having regard to the state of the painted white line is shown in Exhibits G3 and photograph 9 in the report of Dr. Adams being photographs taken over a period of about 18 months I find that the line at the top of the stairs had not been repainted and was worn and required repainting at the time Ms. Harrison suffered her fall."
60 Under the heading "Dimensions of and effect of the vegetation" his Honour recorded his findings as follows (RAB 50-52):
"54. Having regard to the whole of the evidence and on the question of the dimensions and effect of the viburnum particularly the evidence:
(a) of Ms. Harrison that the bush was thicker, bushier and coming over the railing;
(b) of Mr. Allen that he did not see the railing as he was at the top of the stairs;
(c) of Mr. Castor that there had been no pruning undertaken on the viburnum for about 3 to 4 years before 1995 and that it was as it is shown in Exhibit G1;
and taking into account the evidence of Messrs. Takins (sic) and Wickham of the cyclical attention to the gardens at Bennett Street and the attention given to the area by other gardeners on their visits, but absent specific evidence that when the gardens were visited by Mr. Wickham and his team in October 1995 that any pruning was carried out of the viburnum I find that the viburnum at 16 December 1995 had the dimensions shown in Exhibit G1 and that it was around the light pole extending out into the pathway upon which Ms. Harrison was passing at the time of her accident hindering her views of the stairway and the railing adjacent to the stairway.
55. Having regard to the whole of the evidence and particularly on the question of the dimensions and effect of the Boston Ivy the evidence of:
(a) Ms. Harrison that:
(i) the Boston Ivy along the railing as she approached the steps was in leaf and that there were bushes and ivy pushing out into the pathway as she proceeded along towards the stairs;
(ii) at the top of the stairs there was ivy and shrubbery around and on the railing to the extent that it obscured her vision as she approached the stairway;
(b) Mr. Allen that he did not see the railing when he was at the top of the stairs;
(c) Mr. Castor and Mr. Wickham that the Boston Ivy did exist on the railing at the top of the stairs as is evidenced by the sucker marks shown in photographs 2,3, 7 and 8 in the report of Dr. Adams and photographs B and C in the report of Mr. Castor.
and taking into account:
(d) the only person who gave evidence that the Boston Ivy extended down the entire railing as it proceeded down the stairway as Mr. Harrison, the plaintiff's brother whose evidence in this regard I consider unreliable; and
(e) there is no evidence from markings on the railway adjacent to the stairway in contrast with other parts of the railing where Boston Ivy has been present and since removed.
I find that at the time of the accident, the railing adjacent to the stairway from about 1 foot after commencement of the decline to the top of the bottom post was not covered with Boston Ivy or other vegetation, but the top of the railing was covered with Boston Ivy and other vegetation also hindering Ms. Harrison in seeing the stairway and the railing adjacent to the stairway."
61 Under heading "Lighting at the top and down the stairway -visibility of the railing" his Honour recorded his finding as follows (RAB 56):
"74. Having regard to all this evidence and particularly the photograph Exhibit G1 and the light above, I am not satisfied from the evidence of Mr. Watson that the illumination of the area at the top of the stairway would not have been occluded by the viburnum and I find that the top of the stairs were probably in shadow on 16 December 1995 when Ms. Harrison fell and that Ms. Harrison did not see the railing adjacent to the stairs and in all the circumstances could not have been aware of the presence of the stairs due to the existence of the railing."
62 Having recorded his various findings of fact, Kuner A-DCJ, having recorded (RAB 66) that "at the conclusion of the hearing there was no dispute between the parties that the Council had a duty of care to Ms. Harrison in the course of her use of the footpath and the stairway in Bennett Street on 16 December 1998", turned then to consider what, in the circumstances, was the content of that duty of care. Having referred first to the decision of the High Court in Adelaide Chemical & Fertiliser Co. Limited v. Carlisle [1940] HCA 44; (1940) 64 CLR 514 and the well known passage in the Judgment of Mason J (as he then was) in Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 his Honour continued (RAB 67):
"115. The Council in the circumstances of the position of the footpath and stairway and vegetation about the footpath and stairway must have expected that persons using the footpath and the stairway were exposed to risk if:
(a) no warning was given of or no steps taken to identify the fact that the footpath descended by stairs; and
(b) having put things in place there was no satisfactory system to identify changes to or deterioration of those warnings or change in the environment to make ineffective the steps taken by the Council."
and then, a little later (RAB 68):
"118. I am satisfied on the evidence of Dr. Adams that there were steps that could have been taken by the Council at a reasonable cost to protect persons using the footpath at night in varying conditions and at various speeds; including:
(a) touching up the paint on the nosing of the stairs on a regular basis rather than on demand by complaint;
(b) directing the gardening staff of the Council when carrying out routine maintenance of gardens in the area of pathways to check for overgrowth and if found to prune that overgrowth;
(c) the installation of a sign on the pathway before the steps or a light more proximate to the stairways.
All of those are steps that the Council could have undertaken without great expense and would in the circumstances have been reasonable in exercise of its duty of care."
Having done so, his Honour then recorded his conclusions on this aspect of the matter in the terms which I have earlier (para. 5 (above)) set out.
63 After recording the evidence relating to, and his conclusion on, the question of contributory negligence (para. 6 (above)), his Honour then considered and recorded his findings on the various matters which had been advanced in relation to the question of damages. That having been done, his Honour then turned to record his assessment of the amount appropriate to be allowed under each of the various heads of damage. As, in her Cross-Appeal, Ms. Harrison, as I have earlier noted, challenged only the amount awarded by his Honour for general damages and the amount awarded by his Honour for future economic loss, I record, here, only what his Honour wrote in respect of those two matters.
64 Under a heading "Determination of Damages" Kuner A-DCJ wrote (inter alia) as follows (RAB 81-84):
"General Damages
182. Having regard to the whole of the evidence including the medical reports which I have referred to I find:
(a) that Ms Harrison suffered the following injuries in the accident:
(i) a total dislocation of her right knee;
(ii) a laceration to the head; and
(iii) bruising and trauma
and as a result of her injuries and disabilities:
(iv) she was in considerable pain and discomfort and that pain and discomfort continued with decreasing degrees of severity for at least 8 months; and
(v) she required physiotherapy, which was painful, over an extended period and will continue to require treatment for the degenerative changes likely to occur to her right knee.
(b) She has undergone four operative procedures, three under general anaesthetic and one with epidural anaesthesia including:
(i) reduction of the dislocation of her right knee;
(ii) a total reconstruction of her right knee;
(iii) manipulation of the right knee; and
(iv) arthroscopy.
She will probably require a further knee replacement during her lifetime.
(c) As a result of the operative procedures Ms. Harrison is left with a scar on her left knee of about 12 cm and marks on the side of her knee and her disabilities have caused wasting of her right quadriceps. She is sensitive to the moderate disfigurement caused by the scarring and wasting.
(d) Ms. Harrison is unable to pursue active sports; she has not returned to tennis and is unable to snow or water ski.
(e) Ms. Harrison's injuries and disabilities will result in her having a right knee which will give her permanent trouble and she will develop osteoarthritis earlier than she otherwise would.
(f) I assess general damages in the sum of $35,000. Interest is payable on general damages at 2% on that portion of the award which is attributable to the past, which I assess is 50%. Interest allowed therefore is $875.
Economic Loss, Past and Future
183. Ms. Harrison worked two jobs prior to her accident, the second particularly directed to her proposal to take a holiday overseas. After the accident Ms. Harrison did not work until 17 June 1996. She resumed work on a part-time basis until 18 December 1996 and remained in full-time employment until she left to travel overseas on 22 May 1997.
184. Ms. Harrison is now working full-time in a position in London. Her evidence is that she experiences some difficulty at work but agreed that her right knee has remained the same for the past year and causes only some problems at work such as when she is using a ladder, kneeling on hard floors or carrying heavy objects.
185. When Ms. Harrison saw Dr. Ellis in May 1997 Ms. Harrison was working 40 hours a week and regarded her productivity as slightly limited because of her right knee condition. She was able to do most of her work in fashion clothing but could not at that time kneel on the cutting table because of her knee pain. Dr. Ellis regarded Ms. Harrison as fit for the work that she was doing at that time in the clothing industry. He did however regard her as having a permanent impairment of the right leg at and above the knee. In his opinion it was likely that Ms. Harrison would develop osteoarthritis and as a result of her earning capacity will be diminished because of her injury although he could not tell when the osteoarthritis would cause that to occur. It was his view that she would be forced to retire from her present form of work approximately 10 years prior to age 65.
186. Dr. Morris who saw Ms. Harrison in May 1997 agreed that it was unlikely that Ms. Harrison would live a normal life for the next 30 years without suffering some complications of the injury. He did not doubt that she would suffer from osteoarthritis at some time but could not estimate when that would occur. In his opinion Ms. Harrison would be unsuited for work involving running and a job involving a lot of walking would be difficult. He regarded an ordinary range of duties, standing or sitting and normal housework would be within her capacity. He did not see any reason she could not lift weights with her arms and shoulders and he concluded in his report of 5 March 1998 with the observation that Ms. Harrison would be able to engage in full-time employment of a clerical or retail nature including as a shop assistant.
187. Having regard to the evidence of Ms. Harrison and each of Drs. Ellis and Morris I am of the view that Ms. Harrison has suffered a loss or impairment of her earning capacity although she is not presently affected by that incapacity in her present work. I propose to make an allowance in the form of a lump sum in my assessment of damages payable to the plaintiff.
188. Past economic loss is agreed between the parties as follows:
$127.00pw for 26 weeks (18.12.95-17.6.96) $3,302.00
$288.89pw for 26 weeks (18.12.95-17.6.96) 7,490.34 $10,792.34
Interest on past economic loss
$10,792.34 at 10% for 2.5 years $2,698.09
$13,490.43
189. I make the following allowance for future economic loss.
$52,000 less 15% = $7,800.00 $44,200.00
190. On the basis that I have allowed a sum in respect of future economic loss in the form of a lump sum allowance I propose to appropriate to make some minor allowance for loss of superannuation benefits in the sum of $4,000."
65 In the Notice of Appeal (RAB 89-91) which was filed on its behalf, the Council relied upon the following grounds of appeal:
"1. His Honour erred in finding that the Appellant failed to satisfy the standard of care imposed on it.
2. His Honour should have found that the Appellant had satisfied the standard of care imposed on it.
3. His Honour erred in failing to have regard to the expense, difficulty and inconvenience of requiring the Appellant to adopt the procedure for the repair and maintenance of steps and gardens throughout the Municipality of North Sydney as contended for by the Respondent.
4. His Honour erred in finding that the system adopted by the Appellant in relation to the repair of stairs in the Municipality of North Sydney was inadequate.
5. His Honour should have found that the system adopted by the Appellant in relation to the repair of stairs throughout the Municipality of North Sydney was adequate.
6. His Honour erred in finding that the Appellant adopted an inadequate system in relation to the maintenance of gardens throughout the Municipality of North Sydney.
7. His Honour should have found that the system adopted by the Appellant in relation to the maintenance of gardens throughout the Municipality of North Sydney was adequate.
8. His Honour erred in finding that the Appellant should have installed a sign on the pathway before the steps or a light more proximate to the stairway.
9. His Honour should have found that the procedures adopted by the Appellant were adequate and did not necessitate a sign on the pathway before the steps or a light more proximate to the stairway.
10. His Honour erred in ordering the Appellant to pay the Respondent's costs.
11. His Honour should have ordered that the Respondent pay the Appellant's costs on the basis that the Respondent did not call at the hearing of the arbitration the evidence which was tendered at the hearing before His Honour, namely, the evidence of Mr. Allen, Mr. Richard Harrison and Mr. Castor."
66 In the Notice of Cross-Appeal (RAB 95-96) which was filed on her behalf, Ms. Harrison relied upon the following grounds of appeal:
"1. That His Honour erred in reducing Ms. Harrison's damages by 20% for contributory negligence.
(a) His Honour substituted his own views as to the effect of alcohol upon the plaintiff in circumstances where he ought not to have done so; vis (sic), where the appellant had failed to call any evidence on that point, it bearing the onus of proof.
(b) His Honour, in any event, ought not have allowed any discount for contributory negligence for the effect of alcohol upon the plaintiff.
(c) His Honour ought to have taken the view that the plaintiff was entitled to jog along the footpath and it was not a lack of care on her part that contributed to the accident.
(d) The allowance of 20% was too high in the circumstances.
2. That His Honour's allowance for general damages was manifestly inadequate.
3. That His Honour's allowance for future economic loss was manifestly inadequate."
67 In what one can only describe as an extraordinary lengthy Affidavit (RAB 97-320) sworn by him - one assumes, because of the provisions of s.127(2)(c) of the District Court Act 1973 and of SCR Pt 51 r 8 - Ms. Harrison's solicitor claimed (RAB 320) that the amount of general damages awarded by Kuner A-DCJ ought to have been $70,000.00; that the amount of interest on general damages ought to have been $1,750.00; that the amount of future economic loss and superannuation contributions ought to have been $100,000.00 and that no deduction from his Honour's award ought to have been made for contributory negligence, the consequence being that, if the Cross-Appeal were allowed and the increased amounts for general damages, interest and future economic loss substituted for those awarded by his Honour, the amount awarded to Ms. Harrison would be increased by the sum of $112,747.16.
68 When the appeal and cross-appeal were called on for hearing, Mr. P.R. Garling SC appeared with Mr. S.T. White for the Council and Mr. R. J. Burbidge QC appeared with Mr. H.J. Marshall for Ms. Harrison.
69 Before turning to consider what is the proper fate of this appeal and cross-appeal it is necessary to deal with a preliminary matter, that is, what are the issues which the Court is called upon to determine. Although, as I have earlier (para. 3 (above)) noted, the Council in its Defence sought to rely upon its position as a highway authority as a defence to the action, and although, as I have also earlier (para. 4 (above)) noted, Kuner A-DCJ, at the outset of his Judgment, recorded that the Council accepted that it owed to Ms. Harrison a duty of care but contended that it had done all that was reasonably required of it in response to the risk which members of the public using the footpath and stairs were exposed, as will be apparent from the form of the grounds of appeal taken by the Council in its Notice of Appeal, the Council did not there contend that his Honour erred in proceeding upon the basis that he there, and also later in his Judgment (para. 112 - RAB 66), recorded. Further, although the Written Submissions lodged on behalf of the Council prior to the commencement of the hearing contained under a heading "Procedural Background" the following (inter alia):
"4. The appellant admitted that it owed a duty to the respondent but denied that it was in breach of that duty and further pleaded that to the extent that it was under any duty, such duty did not extend to acts of misfeasance."
those submissions did not contain any submission based upon what might be called the nonfeasance/misfeasance distinction. On the contrary, those submissions under a title "Notice of Appeal" contained the following:
"16. The Notice of Appeal in short challenges the findings of the trial judge that the Council's system was inadequate (Grounds 4, 5, 6, 7 and 9); challenges the fact that any failure on the part of the Council could constitute a breach of its duty (Grounds 1, 2 and 3) and findings with respect to a sign (Ground 8)."
70 Despite this, and despite the fact that the principal submissions advanced by Mr. Garling on behalf of the Council on the hearing of the appeal were directed to what I might call the content of the Council's duty of care and the question of whether or not the Council had failed to take those steps which were reasonably called for in order to avoid exposing pedestrians to an unnecessary risk of injury, the transcript record of the latter part of Mr. Garling's submissions (T. 35-36) reveals the following (inter alia):
"GARLING: May I move to the alternative position, having in mind the time? I put to your Honours that one could deal with this case on two levels. One was that there was a general duty of supply (sic) to the Council and in my submission I put to your Honours that the evidence would not have established a breach of that duty.
The second level at which I indicated we wished to put a submission was that the question of nonfeasance and misfeasance remained a live issue. May I just put this to your Honours in support of that proposition.
Your Honours I'm (sic) quickly trying to deal with this issue this morning and perhaps a little to (sic) quickly. I took your Honours to some parts of the transcript to which I wish to return and pause for a moment or two over it, because it my submission what's happened is, as is apparent from what the Judge is told and at least the absence of evidence, one area was not put in issue and the Judge was persuaded that from that position what flowed was a general duty, but there was no concession of that fact and indeed the nonfeasance issue remained alive. I don't need to remind your Honours of the pleading, which I took you to this morning. Can I just take you back to Black 3 and if you will bear with me so that you see how this unfolded. May I say that in putting this submission I am conscious that I don't wish to be seen to advance any evidence from the bar table and I don't intend to.
At l 28 in opening his Honour is told that the case brought (sic) both in negligence and in nuisance against the Council. It was admitted and my learned friend will correct me if I've overstated it, the defendant either by itself or servants or agents had the care, control and management of the relevant area at Bennett Street, North Sydney (sic). We're content that was, if not, if the term admission wasn't precisely right, that that was a fact that was not taken to be an issue.
... the fact is that was the extent of and that's the only recorded evidence of any concession, so called, or agreement that somethings not in issue. And the fact that we admit or, and may I use it in those terms rather than to say not put in issue, but the fact that we admit that we had the care, control and management of the relevant area of course doesn't say anything at all about the content of a duty and certainly doesn't carry with it an admission that a general duty of care arises."
71 Despite the care with which Mr. Garling sought to demonstrate by reference to passages in the transcript at trial that the trial did not proceed upon the basis recorded by Kuner A-DCJ in his Judgment, I am not persuaded that Mr. Garling's submissions in this respect have been made good. Although, as I have earlier (para. 21 (above)) noted, the materials which are before the Court do not disclose when it was that any of Bennett Street, the footpath, the steps, the post and rail fence or the garden were constructed or installed; or whether, at the time of their construction or installation, Bennett Street and the surrounding area was located within the Municipality of North Sydney; or by whom, or by what - a developer or the relevant local government authority or some other body - Bennett Street, the footpath, the steps, the fence or the garden were, or was, constructed or installed, the absence from Kuner A-DCJ's Judgment of any reference to a submission based on the misfeasance/nonfeasance distinction and the fact, which appears to be conceded (T. 42), that counsel appearing for the Council at trial did not draw his Honour's attention to or base any submission upon the decisions of the High Court in Buckle v. Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259 or Gorringe v. The Transport Commission [1950] HCA 6; (1950) 80 CLR 357, in my view, make it impossible to avoid the conclusion that his Honour was led by the manner of conduct of the trial to believe that the only issues which he was called upon to determine were those which he recorded in his Judgment.
72 Despite the submission which was advanced by Mr. Garling, no application was made on the hearing of the appeal for leave to amend the Notice of Appeal so as to add a ground of appeal based upon the misfeasance/nonfeasance distinction. However, it seems to me that, even if such an application had been made, it would have been contrary to principle to accede to it, as evidence which would have gone to that question was not tendered at trial and no explanation is offered for the Council's failure to direct any submission to the distinction, or to refer Kuner A-DCJ to the relevant authorities (see, for example, Coulton v. Holcombe [1986] HCA 33; (1986) 162 CLR 1; Water Board v. Moustakas [1988] HCA 12; (1988) 180 CLR 491).
73 I turn, then, to deal with those attacks which, as I have recorded, were in the Council's Written Submissions made on the Judgment of Kuner A-DCJ.
74 The general nature of the Council's attacks upon his Honour's finding that the Council's system was inadequate is revealed by the following passages in the Council's Written Submissions:
"17. The Council called evidence of its system. That system is described in detail from Red 46 through to Red 47. In short the evidence disclosed that in 1995 the Council had about 260 garden areas comprising about 128,000 square metres of garden (Black 195.10-.23). There were 12 maintenance staff divided into four teams of 3 people, with assigned areas of the Council's municipality to maintain. The system adopted by the Council was for garden maintenance teams to carry out their work in particular areas on a 12 week cycle. In the particular circumstance the garden maintenance team which had as part of its area of work, the location where the plaintiff fell, carried out work at the location on 31 October 1995. They were therefore due to return to carry out further work in January 1996. The garden maintenance team had, as part of its ordinary duties, the pruning of vegetation, removal of rubbish and reporting on any hazards which might exist in the location. There was no evidence which suggested that, having regard to the size of the Council, its budget, the areas under control, that such a system was in any way inadequate, let alone negligent.
24. There was no evidence called by the plaintiff, or sought to be adduced by the plaintiff, nor were there any admissions by way of interrogatory or the like, tendered by the plaintiff which suggested that having regard to the size of the Council, its budget, the areas under control that its systems were in any way inadequate, let alone negligent."
75 The general nature of the Council's attack on Kuner A-DCJ's finding that there had been a breach by Council of its duty of care is disclosed by the following passage in the Council's Written Submissions:
"25. In determining whether a failure on the part of a statutory authority constitutes a breach of their duty, all of the circumstances of the case, including the terms of the function or power and the competing demands on the authority's resources, need to be examined (see Pyrenees Shire Council v. Day [1998] HCA 3; (1998) 192 CLR 330 at 371 per McHugh J; 394-395 per Gummow J) the relevant test in formulating a duty of care referable to a statutory authority is to formulate what a reasonable authority would have done (or not done) in all the circumstances of the case: see McHugh J in Crimmins v. Stevedoring Industry Finance Committee (1999) HCA 59 para. 89, 90 see also now 74 ALJR 1, 18[1999] HCA 59; ; 167 ALR 1, 23-24.
26. The trial judge seems to have directed himself (para. 114 - Red 67) to the classic statement on breach of duty to be found in Shirt's case. However, in so doing he seems to have ignored that part of the statement where His Honour poses the balancing issue by asking what the other conflicting responsibilities, which the defendant may have, are and noting that they are to be taken into account. The trial judge seems to have overlooked this. This is notwithstanding that he had evidence on the general nature of the Council's obligations, the size and extent of them and the system which was in place to deal with them. He had no evidence generally speaking which suggested the system was inadequate. Para. 119 at Red 68 seems to involve no discussion of the kind contemplated by the test in Shirt's case but merely sets out a statement of findings."
76 I am unable to accept the validity of the attacks which I have recorded in the two preceding paragraphs.
77 The Council having accepted that it owed a duty of care to Ms. Harrison, as a member of the public lawfully using the footpath, it follows that the real question which arises is what was the extent of that duty, for, unless and until, that question is answered, it is not possible to determine whether or not a breach of the duty of care has occurred. That this is so is made clear by the well known passage in the Judgment of Mason J (as he then was) in Wyong Shire Council v. Shirt [1980] HCA 12; (1979-1980) 146 CLR 40, 47-48 where 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 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."
78 Given the reference in that passage to the question of "expense", it is as well to add, here, a reference to the passages in the Judgments of McHugh and Gummow JJ in Pyrenees Shire Council v. Day [1998] HCA 3; (1998) 192 CLR 330 to which reference was made in the Council's Written Submissions. In his Judgment in that case supra at 371 McHugh J said:
"Third, the fact that the authority owes a common law duty of care because it is invested with a function or power does not mean that the total or partial failure to exercise that function or power constitutes a breach of that duty. Whether it does will depend upon all the circumstances of the case including the terms of the function or power and the competing demands on the authority's resources"
while, in his Judgment supra at 394-395 Gummow J said:
"On the other hand, questions of resource allocation and diversion, and budgetary imperatives should fall for consideration along with other factual matters to be 'balanced out' when determining what should have been done to discharge a duty of care. In Just v. British Columbia ([1989] 2 SCR 122, 1243-1244) Cory J. explained that the standard of care which is owed to a plaintiff by a government agency may be less than that which would be owed by a private party.
In Just, the Supreme Court of Canada was concerned with the duty of care owed by the British Columbia Department of Highways with respect to the reasonable inspection and maintenance of a major road between Vancouver and ski resorts at Whistler Mountain. Cory J distinguished between the duty of care owed by a government agency, which might be the same as that owed between individuals, and the standard of care. He continued ([1989] 2 SCR at 1244):
'Nevertheless the standard of care imposed upon the Crown may not be the same as that owed by an individual. An individual is expected to maintain his or her sidewalk or driveway reasonably, while a government agency such as the respondent may be responsible for the maintenance of hundreds of miles of highway. The frequency and the nature of inspection required of the individual may well be different from that required of the Crown. In each case the frequency and method must be reasonable in the light of all the surrounding circumstances. The governmental agency should be entitled to demonstrate that balanced against the nature and quantity of the risk involved, its system of inspection was reasonable in light of all the circumstances including budgetary limits, the personnel and equipment available to it and that it had met the standard duty of care imposed upon it.'"
Similar observations may be found in the Judgment of Priestley JA, with whom Meagher JA and I agreed, in Hatch v. Central Sydney Area Health Service [1999] NSWCA 168 paras. 29-30. However, while it is clear that the various demands which might be made upon the finances of a local authority are a factor relevant to be taken into account in determining the content of any duty of care owed by that authority to members of the public, it seems to me that, if, in a given case, a Council seeks to say that what might otherwise appear to have been a step which a reasonable authority ought to have taken to avoid a risk to members of the public was not one which its finances permitted it to take, the Council would bear the onus of demonstrating that that was so rather than the onus of demonstrating that that was not so lying on the person who was injured - support for that approach is to be found in the passage from the Judgment of Cory J in Just v. British Columbia included by Gummow J in the passage from his Judgment in Pyrenees Shire Council v. Day which I have set out above.
79 Such steps as were taken by the Council's staff would indicate that the Council appreciated that a set of steps occurring in an otherwise quite ordinary footpath would represent an unusual hazard for persons who were unfamiliar with the path and the vicinity in general using the path during the hours of darkness unless steps were taken to highlight of existence of the steps. Further, the fact that the height of the steps was approximately 1.2 metres (approximately 4 feet) meant that if one were to fall the risk of serious injury was very real.
80 The steps which, in his first report (Exhibit C (part)) Dr. Adams suggested might reasonably have been taken by the Council included the following (Blue AB 53-54):
"
(1)(b) The paint that had been applied could have been refreshed at suitable intervals so as to remain always bright and easily seen.
(2) The street light which was installed at that location could have had the luminaire positioned so that it would cast light directly down on the steps and the path at the top of the steps.
(3) Alternatively, a lower level of light could have been installed directly against the top of the stairway in a position where it could not be obscured by plant growth.
(4) The defendant could have ensured that any shrubs or plants which were to be cultivated in that area would have a style of growth and/or would be so placed that they would not cast a shadow over the steps during the hours of darkness.
(5) Having planted or allowed the planting of vegetation of a type which would grow so high and so dense as to cast shadows over the steps, the defendant could have ensured that an appropriate inspection and maintenance regime would keep the bushes and trees pruned or trimmed in such a way as to avoid any shadow being cast on the stairway.
(6) Similar comments to those made above would apply to the vine that was planted and allowed to grow over the handrail, hiding it from clear view.
81 Such evidence as there was would tend to indicate that the cost to the Council of taking such steps would not have been great. Thus, as Mr. Harrison agreed (Black AB 175), "It's not a big job to touch up 7 steps" and would take only "about half an hour to an hour" and yet there was no regular programme to ensure that the steps were highlighted. Further, although the evidence of Mr. Wickham and Mr. Takans was to the effect that there was a regular garden maintenance programme, in the course of which - in the case of Mr. Wickham's team - part of that programme involved pruning, the findings made by Kuner A-DCJ would indicate that, at the relevant time, that pruning had not been adequately carried out. Finally, the evidence from the Council's records (Blue AB 91-92) would indicate that, when the new light was installed adjacent to the steps in 1997, the cost to the Council was minimal. Although, in the course of his evidence in chief (Black AB 172), Mr. Harrison expressed the view that using illuminated paint to highlight the steps would have been too costly, there was no other evidence tendered on behalf of the Council to suggest that, because of the various demands upon the Council's finances, the Council could not reasonably be expected to have taken the steps which were suggested.
82 In the circumstances, it seems to me that Kuner A-DCJ did not err when he found that the Council had failed to discharge its duty of care and that its failure to do so caused or at least contributed to, Ms. Harrison's fall. This being so, I am of the opinion that the appeal should be dismissed.
83 I turn, then, to Ms. Harrison's cross-appeal.
84 As I have recorded, the first ground in the Cross-Appeal challenged Kuner A-DCJ's finding that Ms. Harrison had been guilty of contributory negligence and, that, in any event, the allowance which his Honour made for contributory negligence was too high in the circumstances.
85 It is said that his Honour substituted his own views as to the effect of alcohol upon Ms. Harrison in circumstances where he ought not to have done so as the Council had failed to call any evidence on the point. With respect, it seems to me that that submission is totally without substance.
86 Although, as I have earlier (paras. 34-35 (above)) recorded, Ms. Harrison's evidence was that, in the period of 4 hours or thereabouts when she and Mr. Black were at the party, she had 4 or 5 glasses of wine and that, at the time when she left the party, she was not affected by alcohol, as I have also noted (para. 36 (above)) the Ambulance Report (Exhibit 3 (part) - Blue AB 129-130) records:
"Pt states consuming approx 8 x alcoholic drinks this pm/am"
the Triage Form (Blue AB 131) - the time of presentation being recorded as 01.44 - contains the following
"Fell over ETOH last drank - 1/24 hours ago."
while the Accident & Emergency Nursing Admission and Assessment Sheet contains a number of references to Ms. Harrison being "intoxicated". These various notations - particularly that in the Ambulance Report, which Ms. Harrison was not prepared to deny (Black AB 43 - which are given evidentiary effect (Evidence Act 1995 s.69) provided a basis upon which Kuner A-DCJ could have held that Ms. Harrison had drunk far more than she asserted in the course of cross-examination, and that, later, when she was examined by both Dr. Short and the orthopaedic registrar, she was intoxicated, facts which would support his Honour's finding that at the time of the accident she was affected by alcohol. If this be so, and if, at the time - as seems to have been the fact (Black AB 46) Ms. Harrison was unacquainted with Bennett Street, never having been along it before, she was jogging in an attempt to find a cab as it was late and she had to work on the following day, it seems to me that his Honour was entitled to find that she failed to take reasonable care for her own safety.
87 Nor am I persuaded that the apportionment as between the Council and Ms. Harrison of their respective shares in the responsibility for the accident which Kuner A-DCJ made was in error. In this regard it is as well to bear in mind what was said by the High Court in Podrebersek v. Australian Iron & Steel Pty. Limited [1985] HCA 34; (1989) 59 ALJR 492, 493-4:
"A finding of a question of apportionment is a finding upon a 'question not of principle or of positive findings of fact or law, but of proportion, of balance of relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v. Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v. Lowenstern [1958] VR 594. In the circumstances to which reference has been made, it is not possible to say that it was unreasonable for the jury to place almost the entire responsibility for the damage on the appellant himself, and to make the apportionment that they did.
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage : Stapley v. Gypsum Mines Limited [1953] UKHL 4; [1953] AC 663 at 682; Smith v. McIntyre [1958] Tas. SR 36 at 42-49 and Broadhurst v. Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
88 I turn, then, to the second ground of appeal, that is, that the amount allowed by Kuner
A-DCJ for general damages was inadequate.
89 I have already recorded (para. 64 (above)) Kuner A-DCJ's findings as to Ms. Harrison's injuries, the treatment to which she was subjected, the disabilities which she has already suffered and will continue to suffer, and the further disabilities which, in later years, she may come to suffer, and I therefore do not repeat them here; however, it should be pointed out that, as she was but 23 years of age at the time of the accident, the period over which Ms. Harrison has been, and in the future will be, subjected to those disabilities could well exceed 50 years. In these circumstances, it seems to me, with respect, that, in allowing only the sum of $35,000.00 for general damages, his Honour erred and that the amount to be allowed should have been significantly greater. Although other minds may differ, it seems to me that the appropriate amount to be allowed is $60,000.00, it following that, at least to that extent, the Cross-Appeal should be allowed. Although no ground of appeal is taken in respect of his Honour's approach to the question of interest, I note that his Honour proceeded on the basis that interest at the rate of 2% should be allowed on that portion of the award for general damages which was attributable to the past, a portion which his Honour assessed at 50%. It seems to me, with respect, that his Honour erred in that approach. That this is so is demonstrated by the following passage in the Judgment of this Court in Metropolitan Meat Industry Board v. Williams (1991) 24 NSWLR 54, 58-59:
"... in our opinion, courts in New South Wales should award interest on damages for non-economic loss accrued from injury to trial at the rate of 4% per annum, reserving to trial judges discretion to adopt a different rate in cases where there is evidence that the delay in recovering damages occasioned particular detriment to the plaintiff. It was submitted by the plaintiff in the present case that the figure of 4% per annum, adopted by the High Court in MBP (SA) Pty. Ltd v. Gogic as an appropriate uniform figure to be applied in South Australia, should be applied to the whole of the period between the date of injury and trial, and not halved. This is a submission which is, we understand, still being made in cases at first instance.
Such an approach would be contrary to the approach of this Court in Bennett v. Jones ... in which it was held that it will generally be appropriate to apply half the rate of interest to the whole amount awarded by way of non-economic damages.
While 4% per annum is adopted as the appropriate uniform rate of interest in the courts in this State, therefore, it should be applied by allowing 2% per annum over the whole of the period."
90 In the circumstances, it seems to me appropriate to substitute for the amount of $875.00 - which, in any event, represents interest at the rate of 2% for only 2 years and 6 months - allowed by Kuner A-DCJ the sum of $3,300.00 representing interest at 2% for the period of 2 years and 9 months from the date of the accident to the date of Judgment on the sum of $60,000.00.
91 Finally, I turn to the ground of appeal relating to the amount allowed by Kuner A-DCJ for future economic loss. While it is true that, as his Honour recognised, Ms. Harrison's injury rendered her less able to work in certain types of employment and, thus, to an extent, impaired her earning capacity, the evidence clearly demonstrated that, at the time of the trial, Ms. Harrison was not affected by that impairment in her then employment, and the reports of both Dr. Ellis - who, as I have noted, was qualified on behalf of Ms. Harrison - and Dr. Morris - who was qualified on behalf of the Council - tended to indicate that Ms. Harrison was fit, and would continue to be fit, to carry out the duties involved in full-time employment of a clerical or retail nature and, as well, that if - as had once been her intention - Ms. Harrison undertook employment of an administrative nature in the fashion industry, she would be able to carry out whatever duties might be involved in such a position. This being so, it seems to me, that it was open to Kuner A-DCJ to adopt the course which he did of providing "a cushion" against the possibility that, at some time in the future, Ms. Harrison's impairment might manifest itself in a reduction of earning capacity. I would therefore reject this ground of appeal.
92 For these reasons, I propose the following Orders;
1. ORDER that the Appeal be dismissed.
2. ORDER that the Cross-Appeal be allowed.
3. ORDER that the Judgment entered by Kuner A-DCJ be set aside and that in lieu thereof, there be entered a Judgment in favour of the Respondent in the sum of $122,228.62, such Judgment to take effect as on and from 24 September 1998.
4. ORDER that the Appellant pay the Respondent's costs of the Appeal and the Cross-Appeal.
93 BEAZLEY JA: I have had the advantage of reading in draft the Judgments of Powell and Giles JJA. Save for the question of the quantification of interest, I agree with the reasons of Powell JA.
94 In relation to the quantification of interest I agree with the calculation of Giles JA and with his reasons in relation thereto. I also agree with his additional comments on liability.
95 GILES JA: I have had the advantage of reading the reasons of Powell JA in draft. Save as to the matter next mentioned, I agree with them, and add that regard to the financial resources of a local authority or other body providing mandatory services has been considered also in Stovin v Wise [1996] UKHL 15; [1996] AC 923 and Cekan v Haines (1990) 21 NSWLR 296. This is not a case calling for extended discussion of that subject, or of the burden of proof in relation to financial resources. The Council took up responsibility for painting the steps and controlling vegetation so that they would readily be seen, and its failure properly to discharge the responsibility was not because of financial constraints. It did not have a proper system for refreshing the paint, and on the findings of Kuner ADCJ the pruning in October 1995 had been deficient.
96 I am unable to agree with his Honour in relation to interest on past general damages. On my understanding of Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54 at 58-9, and according to the inherent reasoning, the relevant "whole amount awarded by way of non-economic damages" is the amount awarded for the period between injury and trial. Half the rate of interest is applied to that amount to reflect that the general damages are taken to have accrued progressively over the period. Thus the interest in the present case should be calculated at the rate of 2 per cent per annum on $30,000 for two years and nine months, an amount of $1,650.
97 I agree with the orders proposed by Powell JA, save that the substituted judgment should be for $120,578.62.
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LAST UPDATED: 20/02/2001
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