Supreme Court New South Wales

• Medium Neutral Citation: Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280
• Hearing dates: 2 to 13 December 2013
• Decision date: 19 September 2014
• Jurisdiction: Common Law
• Before: Beech-Jones J

Decision

(1) The proceedings stand over to 17 October 2014 at 9:00am for directions.

(2) There be liberty to apply.

• Catchwords: NEGLIGENCE - deceased's vehicle passed through exterior fence on second level of commercial car park - fact finding - role of faulty wheel stop in cause of accident - fence non-compliant with relevant standard - role of fence in cause of accident.; DUTY OF CARE AND BREACH - owner of commercial car park - duty owed to users of car park - obligation to inspect for repairs and defects - scope of obligation to take action in response - burden of doing so.; TRADE PRACTICES ACT 1974 (CTH) - implied term - whether contract between driver of vehicle and operator of car park - whether contract for supply of services to consumer - whether wife of deceased driver can bring claim under Compensation to Relatives Act 1897 (NSW) in respect of breach of contract containing term implied by Trade Practices Act - whether such a claim is governed by Civil Liability Act 2002 (NSW).; NEGLIGENCE - liability of Council - power and functions exercised by Council from 1985 to 1991 in relation to development approval for car park, building approval for car park, inspection and licensing of car park - whether Council owed user and occupants of car park a duty of care in respect of exercise of statutory powers - whether Council committed misfeasance or non-feasance - whether Council breached duty - whether Council protected from liability by s 43A of Civil Liability Act - applicability of s 44 of Civil Liability Act.; DAMAGES - nervous shock and claim under Compensation to Relatives Act - relevance of possibility that but for husband's death plaintiff would raise adopted child - plaintiff's economic loss - mixture of contract income and wages - plaintiff's share of late husband's likely income.
• Legislation Cited: - Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5E, s 5R, s 5T, s 12, s 13, s 16, s 17A, s 30, s 31, s 32, s43A; - Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (No 92 of 2002); - Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW), s 46; - Compensation to Relatives Act 1897 (NSW), s 3, s 4; - Environmental Planning and Assessment Act 1979 (NSW), s 90, s 91; - Judiciary Act 1903 (Cth), s 80; - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5; - Local Government Act 1919 (NSW), Part XI, s 305, s 306, s 310, s 311, Div 4, s 312, s 313, s 314, s 316, s 317AB, s 317AD, s 317AE, s 317AG, Div 4D, s 317B, s 319, s 586, s 591, s 615, s 632; - Local Government Act 1993 (NSW), s 674; - Local Government (Building and Construction Industry Long Service Payments) Amendment Act 1986 (NSW) (No 20 of 1986); - Local Government (Building Regulation) Amendment Act 1989 (NSW) (No 80 of 1989); - Local Government (Residential Flat Buildings) Amendment Act 1986 (NSW) (No 131 of 1986), s 4 and Sch 7; - Statute Law (Miscellaneous Provisions) Act (No 1) 1987 (NSW) (No 48 of 1987); - Trade Practices Act 1974 (Cth), s 4, s 4B, s 74
• Cases Cited: - Austin v Bonney [1999] 1 Qd R 114; - Baden Cranes Pty Ltd v Smith; Brambles Australia Ltd v Smith [2013] NSWCA 136; - Benic v State of New South Wales [2010] NSWSC 1039; - Blatch v Archer [1774] Eng R 2; 98 ER 969; - Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; - Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202; - Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; 173 CLR 33; - Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; - Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1; - Curtis v Harden Shire Council [2014] NSWCA 314; - De Sales v Ingrilli [2002] HCA 52; 212 CLR 338; - Drotem Pty Ltd v Manning [2000] NSWCA 320; - G v H [1994] HCA 48; 181 CLR 387; - Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151; - Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1; - Harris v Empress Motors Ltd; Cole v Crown Poultry Packers Ltd [1983] 3 All ER 561; - Insight Vacations Pty Ltd v Young [2010] NSWCA 137; 78 NSWLR 641; - Jones v Bartlett [2000] HCA 56; 205 CLR 166; - Jones v Dunkel [1959] HCA 8; 101 CLR 298; - Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; 171 LGERA 165; - Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154; - Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; - MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416; - Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727; - Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49; - Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313; - Paul Dainty Corporation Pty Ltd v Sydney City Council [1983] 2 NSWLR 147; - Payne v Parker [1976] 1 NSWLR 191; - Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330; - Rasmussen v South Western Sydney Local Health District [2013] NSWSC 656; - Roads and Traffic Authority v Cremona [2001] NSWCA 338; - Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330; - Roads and Traffic Authority v McGregor [2005] NSWCA 388; - Ryan v A F Concrete Pumping Pty Ltd [2013] NSWSC 113; - Shaw v Thomas [2010] NSWCA 169; - Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182; - Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215; - Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424; - Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317; - Taylor v The Owners - Strata Plan No 11564 [2013] NSWCA 55, 83 NSWLR 1; - Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; - Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234; - Tweed Shire Council v Hancomatic Music Pty Ltd [2007] NSWCA 350; - Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; - Wallace v Kam [2012] NSWCA 82; - Wallace v Kam [2013] HCA 19; - Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388; - Warren Shire Council v Kuehne [2012] NSWCA 81; 188 LGERA 362; - Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515; - Woolworths Ltd v Crotty [1942] HCA 35; 66 CLR 603
• Texts Cited: - Law of Negligence Review Panel, Parliament of Australia, Review of the Law of Negligence Final Report (September 2002); - Dominic Villa, Annotated Civil Liability Act 2002 (NSW) (Thomson Reuters, 2nd Ed, 2013)
• Category: Principal judgment
• Parties: Michelle Lee (Plaintiff); Carlton Crest Hotel (Sydney) Pty Ltd (First Defendant); City of Sydney Council (Fourth Defendant)
• Representation: Counsel: R.A. Cavanagh SC, A.J. Bowen (Plaintiff); L. King SC, J. Sheller (First Defendant); D.T. Miller SC, C. Purdy (Fourth Defendant); Solicitors: Beswick Lynch Lawyers (Plaintiff); Thompson Cooper Lawyers (First Defendant); Moray & Agnew (Fourth Defendant)
• File Number(s): 2009/297394

Judgment

Introduction

1 On the evening of Sunday, 5 March 2006, the plaintiff in these proceedings, Michelle Lee, was a passenger in a car driven by her husband, Thomas Lee. Mr Lee drove the car to a multi-level commercial car park in the Haymarket area operated by the first defendant, Carlton Crest Hotel (Sydney) Pty Ltd (the "car park" and "Carlton" respectively). The car park was attached to the Carlton Crest Hotel, which was also owned and operated by Carlton (the "Hotel").

2 Mr Lee drove to the second level of the car park and found a car space. Ms Lee alighted from the vehicle while Mr Lee endeavoured to reverse the car further into the car space. What followed was the commencement of an ongoing nightmare for Ms Lee. She heard the engine idling and observed it slowly reverse further into the car space. She then heard the engine rev and saw the car reverse towards a metal railing that was the perimeter barrier for that part of the car park. To her horror the barrier disintegrated and the car fell off the edge. She rushed to the ground floor. She found her husband fatally injured. He never regained consciousness and was later pronounced dead.

3 This brief recounting of the events of the accident suggests that Mr Lee was grossly reckless in his control of the vehicle. However, this was not so. An examination of the area of the accident revealed two matters of significance. The first was that only one end of the wheel stop at the rear of the car space was affixed to the floor of the car park. This meant that it had the capacity to rotate when force was applied to it. The second was that the perimeter railing on that level of the car park was grossly inadequate. It was described by one of the engineers as no more than a "pedestrian railing". It was meant to be constructed in accordance with a particular design standard that prescribed a specific level of load resistance. It did not comply with that standard. If it had, then Mr Lee's car would not have left the second level of the car park. It was travelling at no greater speed than 5km per hour at the point it collided with the fence.

4 In these proceedings Ms Lee sues Carlton as the owner and occupier of the car park and the entity otherwise responsible for its operations. She also sues the fourth defendant, the City of Sydney Council (the "Council"), as the body vested with certain powers concerning the approval of the proposed design, construction, occupation and use of the car park. (The proceedings against the second and third defendant were not pursued and it is not necessary to consider them further.) Ms Lee sues for so-called "nervous shock", that is psychological harm, she has suffered as a result of witnessing her husband's death. She also sues under the Compensation to Relatives Act 1897 (NSW) in respect of the alleged "wrongful act, neglect, or default" of Carlton and the Council towards her late husband.

5 I find that, after Ms Lee alighted the vehicle, Mr Lee placed the car's engine in reverse and allowed it to idle until it came to a stop. I find that it stopped when some part of the undercarriage of the vehicle came into contact with part of the wheel stop. I find that Mr Lee then applied some accelerating force because the car had not reversed as far back in the car space as he thought necessary. Due to the inadequate manner in which the wheel stop was affixed to the floor of the car park, it did not provide the tactile resistance that Mr Lee was expecting. At this point the wheel stop rotated and the car collided with the railing, which then gave way.

6 I find that Carlton was negligent. I find that it owed a duty of care to users of the car park that required it to have a reasonable system of inspection of the surface of the interior and exterior of the car park to ascertain the existence of any potentially significant and obvious defects or disrepair, including such defects or disrepair concerning its external railings and wheel stops, and to take reasonable steps in response. I find that it did not have such a system and that, if it had, an inspection would have revealed that the state of the car park was such that an inspection by an engineer was required. In turn, this would have resulted in the problems with the railing and wheel stop being addressed, and the accident would not have occurred. I also find that Carlton was aware that there were some unattached wheel stops and that at least one of the perimeter railings was loose. This should also have resulted in an inspection by an engineer and ultimately rectification works being undertaken.

7 Ms Lee also pleaded the existence of a contract between herself or her husband or both and Carlton in relation to the provision of "car parking services". I do not accept that she contracted with Carlton. I accept that her husband did but, for the reasons explained below, this does not advance Ms Lee's case beyond her successful claim in negligence.

8 I also find that the Council was negligent. In particular, I find that the car park was not erected in compliance with the provisions of former Ordinance 70 made under the Local Government Act 1919 (NSW) (the "LGA 1919"). The perimeter railing did not comply with the standard noted above which was incorporated into Ordinance 70. Towards the end of the construction of the car park and the Hotel in 1989, the Council inspected the premises. Based on its inspection and presumably such other material available to it, the Council issued a building certificate and a classification certificate under Ordinance 70, which had the effect of enabling the building to be used as a commercial car park. The Council was otherwise satisfied that the car park was erected in conformity with the LGA 1919 and Ordinance 70 (see former s 310 of the LGA 1919). I am satisfied that there was no material upon which the Council could have concluded that the perimeter railing conformed with the relevant standard, and that the railing was a significant safety feature of the building as a whole. I find the Council's inspection and subsequent exercises of power were negligent and unreasonable. I also do not consider that any liability of the Council was excluded by the operation of s 44 of the Civil Liability Act 2002 (NSW) (the "CLA").

9 Carlton cross-claimed against the Council. I reject Carlton's contention that it was owed a direct duty of care by the Council, but nevertheless accept that contribution is available under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). Nevertheless, as between Carlton and the Council, I find that Carlton should bear responsibility for the bulk of the judgment in Ms Lee's favour, namely 75%, and that the Council should bear responsibility for 25%.

10 Further, I accept that the contention of each of Carlton and the Council that Mr Lee's own negligence contributed to his death, being his conduct in applying accelerating force in the circumstances already described. However the assessment of his level of culpability must take into account the fact that Mr Lee had no knowledge of either the faulty wheel stop or the grossly inadequate nature of the perimeter railing. I have determined that a reduction of 20% of the damages recoverable is warranted on account of his contributory negligence.

11 Otherwise, I have made the findings necessary to quantify the damages recoverable by Ms Lee. As a result of her husband's death Ms Lee has suffered an almost complete psychological collapse affecting every part of her life, including her promising career as a speech pathologist. Also, absent the accident, she could have expected to have derived significant economic benefits from her marriage. It follows from my findings that her damages will be substantial. The parties will need to prepare calculations and confer as to the appropriate orders necessary to give effect to this judgment.

12 The balance of these reasons is structured as follows:

(1) The accident ([13] to [71])

(a) Ms Lee's evidence ([15] to [25])

(b) The vehicle and the wheel stop ([26] to [36])

(c) The external railing ([37] to [41])

(d) How the accident occurred ([42] to [63])

(e) Conclusion ([64] to [66])

(f) Some causation findings ([67] to [71])

(2) The car park ([72] to [117])

(a) The photographs of other railings and wheel stops ([73] to [80])

(b) Joe Yurdakul ([81] to [85])

(c) Huseyn Salicioglu ([86] to [90])

(d) Vito Ricapito ([91] to [93])

(e) Sandy Aung ([94] to [100])

(f) Bobby Toh ([101])

(g) Kanwarpreet Kanwar ([102] to [107])

(h) Findings ([108] to [113])

(i) Expert evidence as to inspection regime ([114] to [117])

(3) Is Carlton liable in negligence? ([118] to [164])

(a) Duty of care ([120] to [141])

(b) Breach and precaution ([142] to [159])

(c) Causation ([160] to [164])

(4) Contributory negligence ([165] to [170])

(5) Contract claim against Carlton ([171] to [186])

(6) Ms Lee's case against the Council ([187] to [402])

(a) Statutory powers and functions of the Council ([188] to [235])

(i) Environmental Planning and Assessment Act 1979 (NSW): Development Approvals ([189])

(ii) Local Government Act 1919 (NSW): Regulation of building work ([190] to [206])

(iii) Ordinance 70: Regulation of building work ([207] to [220])

(iv) Enforcement ([221] to [223])

(v) Inspections ([224] to [231])

(vi) Licensing of car parks: Ordinance 34B ([232] to [235])

(b) The railing and compliance with the 1981 Standard ([236] to [245])

(c) Mr Glanville's evidence of the Council's usual practice ([246] to [258])

(d) Council records ([259] to [305])

(i) 1983 to early 1987: Concrete barrier ([264] to [285])

(ii) 1987 to 1988: Metal railing ([286] to [297])

(iii) 1989 to 1991: Inspections and certification ([298] to [305])

(e) Which powers and functions were exercised by the Council and which were not? ([306] to [310])

(f) Was a structural diagram or an engineer's certificate for the railing supplied to the Council? ([311] to [336])

(i) Jones v Dunkel ([314] to [321])

(ii) Balance of submissions ([322] to [329])

(iii) Resolution ([330] to [336])

(g) The Plaintiff's pleaded case ([337] to [344])

(h) Duty of care: Negligent exercise of powers ([345] to [360])

(i) Rejected particulars of negligence ([361] to [365])

(j) Upheld particulars of negligence ([366] to [379])

(k) Causation ([380] to [381])

(l) Section 42 ([382])

(m) Section 43 (383])

(n) Section 43A ([384 to [388])

(o) Section 44 ([389] to [402])

(7) Carlton's cross-claim against the Council ([403] to [407])

(8) Damages for nervous shock ([408] to [502])

(a) Ms Lee's condition after the accident ([416] to [427])

(b) Medical evidence ([428] to [445])

(c) Nervous shock claim: Non-economic loss ([446] to [451])

(d) Nervous shock claim: Economic loss ([452] to [494])

(i) Ms Lee's career pre and post accident ([453] to [459])

(ii) Taxation records ([460] to [465])

(iii) Autism Central ([466] to [471])

(iv) Jane Purcell ([472] to [476])

(v) Other material ([477] to [478])

(vi) The Plaintiff's submissions ([479] to [482])

(vii) Carlton's submissions ([483] to [484])

(viii) Resolution ([485] to [494])

(e) Nervous shock claim: Past domestic assistance ([495])

(f) Nervous shock claim: Future domestic assistance ([496])

(g) Nervous shock claim: Past out of pocket expenses ([497]

(h) Nervous shock claim: Future out of pocket expenses ([498] to [502])

(9) Damages under the Compensation to Relatives Act 1897 (NSW) ([503] to [538]

(a) The income Mr Lee would have brought to his marriage ([509] to [527])

(b) The share of the benefit ([528] to 534])

(c) Services provided by Mr Lee ([535] to [537])

(d) The period for which Mr Lee could reasonably have expected to receive the benefit ([538])

(10) Superannuation ([539])

(11) Costs of future funds management ([540] to [543])

(12) Future disposition ([544] to [545])

(13) Orders ([546]).

(1) The accident

13 On the evening of Sunday, 5 March 2006, Ms Lee's husband drove her to the Haymarket area. They were intending to have dinner with Ms Lee's family. Mr Lee drove into the car park. He was driving a 1996 model Toyota Camry. The car had an automatic transmission.

14 Mr Lee had parked in the car park on a number of previous occasions. He drove the car to the "white" level of the cark park, being the second level. Mr Lee found a spot on the perimeter of the car park. The external barrier of that section of the car park was a metal railing. Some of the external barriers for other parts of the car park were metal railings and some were made of concrete.

(a) Ms Lee's evidence

15 According to Ms Lee her husband reversed the car "into the space slowly". She recalled the engine stopped. She got out of the car and closed the door. She recalled thinking that "our vehicle was approximately 30 centimetres too far out into the car park". Her husband alighted from his side and looked towards the front of the car. They looked at each other and "simultaneously said the word 'reverse'".

16 Mr Lee returned to the driver's seat. In her witness statement Ms Lee described what happened next as follows:

"I heard the ignition sound and the engine running. I was watching the car in order to give him instructions so that he wouldn't hit the railings with the back of the car. After hearing the engine start the vehicle rolled slowly backwards for a short distance. The vehicle then stopped. I then heard it 'rev' which sounded like the engine moving from a low rev to a high rev. A second or two later after the high revving I saw the car suddenly move towards the steel barrier. It then rolled quickly towards the barrier. It appeared to me to remain on the same level during this passage towards the barrier. It then went straight through it without stopping." (emphasis added)

17 The vehicle flipped over by the time it reached the ground below. Ms Lee ran to the scene. Her husband was unconscious. She did not initially see any visible sign of injury, but then saw a rush of blood from his head and heard a "gurgle". She stroked his face. An ambulance arrived soon afterwards and transported Mr Lee to hospital. Within a hour of his arrival she was told he would not survive. I address below the consequences for Ms Lee of this tragedy. It suffices to state at this point that her life as she knew it was over.

18 Ms Lee spoke to a police officer on the night of the accident. The officer recorded what Ms Lee stated in a police notebook which she signed. It included the following:

"... Thomas got back into the car to reverse it further back into the spot. I saw the vehicle reverse slowly and then stop a short distance back. I then saw the vehicle accelerate quickly backwards. I heard the noise of the engine revving loudly. It was like the first time he went to reverse there was no power and the car barely moved, so he gave it more the second time." (emphasis added)

19 On 14 March 2006 Ms Lee gave a more detailed statement to the police. Her husband had been buried four days previously. In that statement Ms Lee stated that, after they parked, her husband did not leave the car but instead just "stuck his head out" to ascertain the car's position. She described the events that immediately followed in these terms:

"Tom started to reverse but the car didn't move very much. I heard Tom increase the acceleration and I turned to watch the rear of the car. All of a sudden I saw the car go through the railings. The barrier didn't even slow the car. The car just went straight through it. I saw the car flip, but I don't know how many times."

20 Three aspects of these accounts should be noted.

21 First, they each involve the car initially moving back slowly. In her oral evidence Ms Lee stated that if the car's transmission was in reverse then it would idle backwards without any depression of the accelerator. When she was asked about the movement of the car at this point, Ms Lee said:

"Q. The engine isn't revving at this point?

A. No, because it's slowly sort of going back, yep."

22 Second, in her statement in this Court and her initial statement to the police Ms Lee stated that the car stopped before revving. In cross-examination Ms Lee reiterated that the car moved a short distance back and then stopped.

23 Third, in her statement in this Court Ms Lee stated that the vehicle appeared to remain on the same level while moving towards the external barrier. This suggests that the vehicle did not mount any wheel stop before it struck the barrier.

24 This aspect of her evidence was queried in cross-examination. It was not mentioned in her two statements to the police, although they are not inconsistent with that assertion. In cross-examination it was suggested that it was "not a fair thing for you to say, is it, that it seemed to you to remain on the same level?" She replied that "I was just talking about what I thought I saw". I will return to address this shortly. It suffices to state that, given its provenance and the circumstances in which the accident occurred, I will treat this aspect of Ms Lee's evidence as no more than an impression rather than a firm recollection on her part.

25 For the sake of completeness, I note that in the cross-examination of Ms Lee it was asserted that a psychiatrist retained on behalf of Carlton who examined Ms Lee, Dr Klaas Akkerman, had recorded Ms Lee stating that the car "went over a wheel stop and then through the barrier". This appears to have been an unintentional slip on the part of the cross-examiner. Dr Akkerman only recorded the plaintiff stating it "hit" the wheel stop which is not the same. In any event, in the absence of Dr Akkerman being asked precisely what was stated, I do not attach any weight to the comment he recorded.

(b) The vehicle and the wheel stop

26 The length of the Toyota Camry was 4.795m. It was 1.77m wide. A police officer with the appropriate qualifications who assisted the coroner examined the vehicle and concluded that it did not suffer from a mechanical defect or failure. Photographs of the vehicle suggest little damage to its rear bumper. Beyond that, it was not suggested that anything revealed by the post-accident inspection of the vehicle was relevant.

27 Each of the parking spaces on the perimeter of the car park level that Mr Lee parked on was meant to have a concrete wheel stop located at the back of the car space. The car parking space was 2.5m wide. The distance from the end of the side lines on each side of the car space to the position the wheel stop was meant to be in was 5.3m. The distance from the position that the wheel stop was meant to be in to the start of the railing on the exterior of the car park was 750mm.

28 A consultant engineer retained by Carlton, Colin Simpson, stated that the form of wheel stop in use at the car park was approximately 2m in length, 150mm wide and 165mm high. The three engineers called on behalf of Ms Lee estimated that the wheel stop weighed just under 100 kg. The wheel stop was meant to be affixed by each of its ends to the concrete floor of the car park by a 16mm steel dowel of approximately 400mm in length, together with grouting along the length of the wheel stop.

29 As is to be expected, on the day of the accident, the police attended and took photographs. The only copies of those photographs that were tendered were black and white photocopies attached to one of the reports of the engineers retained on behalf of Ms Lee. One of the photos shows the wheel stop in the car space that Mr Lee parked in was displaced. It had rotated at an angle of 30 degrees at the northern end while the southern end remained fixed.

30 Six days after the accident a friend of Ms Lee and her husband, David Wilmshurst, went to the car park. Mr Wilmshurst took a number of photographs of the scene. Some of the photos included a tape measure and provided the evidentiary basis for some of the dimensions noted in this judgment.

31 One of the photographs taken by Mr Wilmshurst depicts a top view of the wheel stop at the site of the car space that Mr Lee parked in on the night of the accident. Consistent with the police photographs noted in [29], the photograph shows the southern end attached to the floor of the car park in the correct position at the back edge of the car space. However the northern end has rotated towards the railing. There are scratch markings on the floor of the car park adjacent to the wheel stop at a point covering an area approximately 30cm in length from the northern end. They suggest that at some point the wheel stop has swivelled at that end and scratched the floor while the southern end remained attached. There are also some black markings on the top of the wheel stop. The location of the wheel stop in this photograph appears to be the same as that shown in the photograph taken by the police on the day of the accident, i.e. it does not appear to have moved in the meantime.

32 The three engineers retained by the plaintiff were John Jamieson, a traffic engineer, and two structural engineers, Peter J. Taylor and John M. Alden. Reports from all three were tendered. Carlton tendered a report from Mr Simpson. All four engineers met in a joint session and provided a joint report. They were all due to provide evidence in a conclave but unfortunately Mr Simpson was too sick to attend. In broad terms the engineers addressed the circumstances of the accident and compliance by the railing with the relevant building standards. (They also addressed some matters of engineering knowledge that it could be expected to be possessed by any engineer considering the matter at the time that various Council approvals were sought for the design and construction of the car park in the 1980s: see [236] to [245].)

33 All of the engineers agreed that there was never a dowel at the northern end of the wheel stop affixing the wheel stop to the floor of the car park. In his report Mr Simpson stated that it appeared that "no grouting had [ever] been used" to affix the bottom of the wheel stop to the surface of the car park, which would have allowed the wheel stop to rotate more easily. In oral evidence Mr Alden qualified this. He was shown the colour photographs taken by the police on the day of the accident. He considered they indicated that there was some grouting on the bottom of the northern end of the wheel stop but not the remainder. This explained why there were only scrape marks at the northern end of the wheel stop. I accept that was the case. It meant that the rest of the wheel stop was elevated off the floor of the car park and the level of force required to rotate the wheel stop was commensurately reduced.

34 Three other points about the wheel stop should be noted. First it is not known whether or not the wheel stop was in a straight alignment (i.e. parallel to the exterior railing) at the time Mr Lee reversed into the car space. If it had been out of place, that would have been immediately noticeable to any staff member who inspected it. I describe the "system" of inspection of the car park below. Suffice to state that I am satisfied that any misalignment of the wheel stop would not have been corrected.

35 Second, the engineers appeared to be of the view that the scrape marks on the top of the wheel stop were caused by Mr Lee's motor vehicle. In their joint report they stated:

"It was agreed that the evidence, in the form of scrape marks on the slab and black markings on the top of the wheel stop, indicates that the wheel stop had moved during the accident." (emphasis added)

36 Third, notwithstanding this observation, it is not clear what part of the vehicle scraped the top of the wheel stop and at what point that occurred. As I will explain, one hypothesis put forward was that some part of the vehicle's undercarriage came into contact with the wheel stop before its tyres did. This scenario was certainly possible. A number of the photos of the wheel stops taken after the accident depict the undercarriage of cars coming into contact with a wheel stop before its tyres abut its edge (see [56] below).

(c) The external railing

37 The top of the external railing that the motor vehicle passed through was approximately 900mm above the floor of the car park. It was comprised of four horizontal rails. The top rail was circular and hollow. Its outside diameter measured 90mm. The three remaining rails were of 36mm outside diameter. At intervals of 1.96m these horizontal bars attached to a 90mm x 10mm vertical bar which was affixed to the edge of the car park's concrete floor.

38 Some of Mr Wilmshurst's photographs showed the remnants of the exterior railing that were destroyed by Mr Lee's vehicle. The bottom of the vertical poles that attached the railings to the floor of the car park have come away completely. Mr Wilmshurst made observations of the edge of the slab that gave way under the force of Mr Lee's car. He noticed cracks running parallel to the edge of the slab which coincided with the bolt holes on the attachment plates. Mr Wilmshurst observed that parts of the slab edge "had been cracked for some time". He photographed a rusty key that had fallen in the crack. Mr Alden considered that it was evident that the railing failed as a result of the concrete between the anchors at the base of the posts and the edge of the slab breaking away.

39 Each of the engineers identified the version of Australian Standard 1170 published in 1981, also known as the SAA Loading Code, as applicable to the design and construction of the external railing (the "1981 Standard"). I will return to address the legal significance of the standard to this case. At this point it suffices to note that clause 3.3 of the 1981 Standard deals with "[i]mpact and [i]nertia loads" that a building structure should be able to withstand including "[h]orizontal impact or braking forces arising from the movement of vehicles". The 1981 Standard identified loads for impact and braking calculated by reference to the mass of the vehicle, and specified a presumption as to the weight of the vehicle. Clause 3.3 also stated:

"The height at which vehicle impact forces are considered to act shall be generally 0.45m above floor level but in the case of motor trucks it shall be not less than 0.9m.

NOTE: Special consideration should be given to the design of kerbings and guard rails to alleviate possible vehicular impact on the structure and it should be noted that the impact forces from runaway vehicles on ramps can considerably exceed the loads specified above."

40 In their joint report all of the engineers recorded their agreement that the steel perimeter railing failed to comply with the loading requirements in the 1981 Standard. In his report Mr Taylor addressed this is in detail. In particular he noted that the horizontal rails, the bolts anchoring the rail to the baseplate, the location of the anchors and the anchorage depths were inadequate to withstand the vehicle impact loadings specified in the 1981 Standard. He also concluded that two of the steel barrier standards would fail under a horizontal impact that was equal to or greater than 50% of the 1981 Standard. He also concluded that the edge of the concrete slab and the anchorage would fail under a load that was equal to or greater than 62% of the 1981 Standard.

41 These conclusions were not contested. The only issue that was raised concerning compliance with the 1981 Standard was whether the notation in the extract at [39] above either did suggest, or was capable of suggesting, that the level of resistance presented by a wheel stop could be taken into account as part of the calculation of the impact resistance of the barrier in question. I address this below.

(d) How the accident occurred

42 In finding the basal facts surrounding the accident I must be mindful that, while overall Ms Lee bears the onus of proof on the balance of probabilities, both Carlton and the Council sought to positively assert various facts relevant to either the cross-claim or pleaded allegations of contributory negligence, and in that respect they also bore an onus. While the onus is an undemanding standard only requiring a "preponderance" of evidence, the Court must nevertheless "feel an actual persuasion" of the relevant fact's occurrence before it is established, and that cannot be reached by a "mere mechanical comparison of probabilities [independent] of any belief in its reality" (Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361 per Dixon J).

43 The starting point is the unchallenged portions of Ms Lee's evidence that I have described above, as well as the characteristics of the wheel stop and the railings.

44 In his written submissions, senior counsel for Ms Lee, Mr Cavanagh SC, contended that the accident occurred in the following way:

"When the undercarriage came in contact with the wheel stop Mr Lee was reversing in the normal way. However, the wheel stop moved and the vehicle was suddenly released. This sudden and unexpected movement of the car caused an unintended reaction in Mr Lee in the sense that his foot, which was on the accelerator, may have been depressed by the sudden movement of the car causing the vehicle to move backwards in an uncontrolled manner, hitting the railing and going through the railing."

45 Neither of the defendants descended to the point of putting forward an all embracing hypothesis which sought to explain how and why Mr Lee behaved as he appeared to. Instead they both asserted that at some point the vehicle reversed to a point and stopped, and then Mr Lee applied accelerating force. Both defendants contend that this involved contributory negligence on Mr Lee's part, a matter I will return to.

46 The submissions of senior counsel for Carlton, Mr King SC, hotly disputed Mr Cavanagh SC's contention of an involuntary reflex explaining the sudden acceleration. Senior counsel for the Council, Mr Miller SC, went further. In his submissions he contended that the "only rational conclusion is that Mr Lee somehow drove up and over [the wheel stop] after he had already brought his vehicle to a stop when correctly positioned in the car bay".

47 It is convenient to deal with the evidentiary basis for Mr Cavanagh SC's submission first. The submission was based on the following passage from Mr Alden's evidence:

"Witness Alden: ... Yeah, basically my expectation would be that the car has reversed, something on the undercarriage has caught the wheel stop north of the pivot point. ... And that at some point of load being applied, that's slipped, the car has gone back, basically the car has gone over the wheel stop. It is not clear that the wheels would have gone over the wheel stop because they may have gone beside the wheel stop. As it rotates, of course, the barrier becomes narrower and so from that point of view, the car can then travel back over the edge, through the railing over the edge and fall to the ground.

[Mr Alden was then asked to repeat what he stated.]

Okay. Basically as the scenario I think seems to be most likely is as the car has reversed, some part of the undercarriage of the car catches on the wheel stop and causes some constraint to the movement of the car. I think it's likely that in fact it's some part of the undercarriage of the car because if the wheels were back at the wheel stop position, the car would be well back in the car parking bay. There would be no perceived reason for it to go any further. So it seems to me more likely that part of the undercarriage of the car, so the rear of the rear wheels, has caught the wheel stop, applied some sort of force to the wheel stop. If it's some sort of wedging action, there would be a horizontal and a vertical force and at some point the slip has occurred and as the slip has occurred, the car has gone back and - and then gone through the railing and over the edge.

[Senior Counsel for the plaintiff]: And when this slip occurs, what happens to the driver when the slip occurs in terms of what the driver is doing with his foot? Is there some motion in the car or movement?

...

Witness Alden: If it's a sudden slip, in other words if there is a sudden release of constraint, then there is some sort of dynamic effect and - and so one of the things that can happen in that case is that your body is sitting there. If the car suddenly moves back, then your body is trying to stay still and of course your foot on the pedal would be - if your foot is there -

...

Witness Alden: It is just a simple matter of inertia. If your body is there and the car suddenly moves relative to you, then there will tend to be a relative movement and that, you know, if - unless the person reacts very quickly, that could cause an acceleration." (emphasis added)

48 Mr Jamieson agreed with this scenario. Mr Taylor also agreed, although he added the caveat "but I am a structural engineer".

49 It is important to isolate the steps in Mr Alden's explanation. He describes the car being reversed and the undercarriage catching on the wheel stop. Twice in the above extract he states that some sort of force was then applied as the car was caught on the wheel stop ("[a]nd that at some point of load being applied"; "applied some sort of force to the wheel stop"). While not clear, it seems that the only sort of force that can be applied at that point is the depression of the accelerator. As the car was encountering resistance it would be unlikely to exert such force in an idle state. The questioner then elicits from him the suggestion of an involuntary and strong (further) depression of the accelerator which is presumably meant to account for the loud revving heard by Ms Lee.

50 Thus, on Mr Alden's theory, after the car reversed further back into the car space two levels of accelerating force were applied. Mr Lee would have had to first apply some force to the accelerator when he encountered resistance and then a greater level of force would have been applied involuntarily when the wheel stop gave way.

51 Three points about this theory should be noted. First, to an extent it is consistent with the primary contention of both Carlton and the Council, namely that, at a point after the vehicle came to a stop, Mr Lee applied accelerating force. Second, the theory addresses why force was applied after the vehicle came to a stop, namely because the undercarriage of the car caught the wheel stop. I address this aspect of the theory below and accept it. Third, overall the theory involves three levels of revving of the vehicle, namely the low level of revving as it reversed without accelerating force being applied (see [21]), a higher level of revving when Mr Lee applied force when the car encountered resistance, and an even greater level of revving when the wheel stop gave way as Mr Lee's foot slipped.

52 Leaving aside this aspect of Mr Alden's evidence, the competing submissions direct attention to why the car stopped, what part of Mr Lee's vehicle came into contact with the wheel stop, and what was the mechanism by which the car passed either through or over the wheel stop.

53 In relation to the first issue, I have already noted Ms Lee's evidence that the car idled backwards without revving and then stopped before she heard further revving. The most likely explanation for those events is that the car encountered some resistance. If there was no resistance and Mr Lee was still dissatisfied with the position of the car he would have let it continue moving backwards rather than applying the brakes.

54 This undermines Mr Miller SC's contention that "Mr Lee drove up and over the wheel stop after he had already brought his vehicle to a stop when correctly positioned in the car spot". By "drove up" I understand this to mean he drove at the wheel stop from some (small) distance. However, if the car did not encounter any resistance in reversing, there was simply no reason for Mr Lee to put his foot on the accelerator. Instead the far more likely scenario is that some part of the car came into contact with the wheel stop at the point the car stopped.

55 The second issue is what part of the car came into contact with the wheel stop at the point it stopped? This is bound up with the third issue, namely the means by which the vehicle could have passed through or over the wheel stop.

56 Mr Alden's theory involved the vehicle catching on the wheel stop, rather than the vehicle mounting the wheel stop. As I have indicated, it is possible for the undercarriage of a vehicle to make contact with the type of wheel stops in use, although no specific tests were undertaken on a Toyota Camry. Sixteen days after Mr Wilmshurst visited the car park, another friend of Ms Lee and her husband, Andrew Gardyne, attended and took some photographs. A number of the photos show the top of other wheel stops in contact with or at least very close to contacting the undercarriage of other cars. Figure 3.10 of Mr Alden's report shows the undercarriage of a particular type of vehicle coming into contact with a wheel stop well prior to its tyres making contact with it.

57 In his oral evidence Mr Alden suggested that the undercarriage of the vehicle became caught on the wheel stop and rotated the northern end so that it became "a narrower obstruction so it is possible for the car, the wheels to miss it". When pressed, he qualified this by accepting that "if the car was approximately centrally parked in the bay, then at least one wheel would have had to pass over the wheel stop". However he added that it would require "some momentum in travel" before it could pass over.

58 In the joint report the engineers accepted that the vehicle had the "mechanical ability to climb over the wheel stop even when it is properly affixed", but added that the "movement of the wheel stop will certainly facilitate the ability of the vehicle to climb over it". This statement did not address whether the vehicle could mount the wheel stop if its tyres were immediately abutting it or could only mount the wheel stop if it had momentum when it struck the wheel stop.

59 In his report Mr Simpson stated that the radius from the centre of the Camry's wheel to the ground was 284mm. Mr Simpson concluded that the vehicle had the capacity to mount the wheel stop if it has acquired momentum before coming into contact with the stop, but also from standstill if the tyres abutted it. However, in oral evidence Mr Alden contended that there was an error in Mr Simpson's calculations of a factor of ten, and when corrected they support his conclusion that it was unlikely that both wheels of the car could mount the wheel stop if it was abutted against it. Earlier in his oral evidence Mr Alden addressed this, stating:

"... if you were travelling freely with enough velocity you could carry it over the wheel stop, but I don't think that's likely to have occurred if you actually had gone to the point where the wheel touched the barrier [ie the wheel stop] and at a standstill."

I accept Mr Alden's evidence on this issue.

60 As I have explained, Mr Alden's version described above at [47] necessarily involved the deliberate application of force by Mr Lee to the accelerator at a point after the car came to a stop. The defendants seize upon his doing so as demonstrative of contributory negligence. However this begs the question why the force was applied? The most likely explanation is that the car had stopped after encountering some resistance, yet Mr Lee felt he had not achieved his objective of reversing his car as far as he thought it should go. It also suggests that he did so in circumstances where the level of tactile resistance was not as great as what he would expect from, say, a properly functioning wheel stop. This could have been the case if some section of the car's undercarriage came into contact with any part of the wheel stop from its middle to its northern end. On this scenario if the back wheel of the car on the southern end travelled over the wheel stop then it would have some momentum at that point having travelled some distance.

61 An alternative scenario involves the rear wheels of Mr Lee's car abutting the wheel stop and then significant accelerating force being applied. This scenario has two difficulties. The first is that the level of accelerating force necessary to take the car over the wheel stop is significant, and the second is that it involves the car being placed further back into the car space when accelerating force is applied. If the wheel stop was level then, for the car to move, the back wheel would have to pass over the wheel stop. As explained by Mr Alden, to do so would have required the application of very significant accelerating force by Mr Lee, and even that was "unlikely". However, why would he do that? By this time the car would have been well back into the car space. Even if the wheel stop was not straight, he would have been encountering significant resistance from the wheel stop at its fixed end. The probabilities point away from this scenario. The further back that Mr Lee was when the car stopped, the more force that was required to pass over the wheel stop, yet the less reason there was to apply it. The probabilities point to the car reversing without accelerating force being applied, and coming to a stop at a point when the undercarriage of the vehicle came into contact with the wheel stop.

62 I have already described Mr Alden's theory, which involved two levels of accelerating force being applied after the vehicle stopped after reversing, one of which was intentional, and a greater level of force which was accidental (at [47] above). While I am satisfied that Mr Lee intentionally applied accelerating force, I am left unpersuaded that a further level of force was applied accidentally. It sits uneasily with Ms Lee's evidence.

63 Finally I note Mr Miller SC's contention that Mr Alden's proposition that the undercarriage of the car pushed the wheel stop out of the way does not "explain the scrape marks on the top of the wheel stop". To the contrary, they are completely consistent with it in that the scrape marks could have been caused by some part of the undercarriage of the car catching on the top of the middle or northern end of the wheel stop and by that means marking it.

(e) Conclusion

64 I am satisfied that when he returned to the car Mr Lee placed the car in reverse and allowed it to idle until it came to a stop. I am uncertain whether the wheel stop was in its correct position when the car pulled into the car stop. However, I consider it more likely than not that the car stopped when some part of the undercarriage of the vehicle came into contact with some part of the wheel stop at a point between its middle to the northern end. I so find. At this point Mr Lee applied some accelerating force. He did so because the car had not reversed as far back as he considered necessary. It is likely he did not encounter the tactile resistance expected from a wheel stop or similar barrier at that point. As a result of his applying accelerating force, the wheel stop rotated and the car moved backwards towards the railing.

65 I am satisfied that the northern back wheel of the car did not pass over the wheel stop. However I am uncertain as to whether the southern back wheel did so. I am not persuaded that some further revving may have occurred after the wheel stop gave way in the manner outlined by Mr Alden.

66 Consistent with the evidence noted at [37] to [41], the perimeter railing was wholly inadequate. It simply gave way under the car's force.

(f) Some causation findings

67 At this point it is appropriate to note some of the evidence concerning whether an adequately constructed wheel stop and perimeter fence would have prevented Mr Lee's accident.

68 As noted, in their joint report the engineers recorded their agreement that if the wheel stop had been properly located and fixed then the vehicle would still have been capable of mounting the wheel stop. However, I have also noted and accepted Mr Alden's qualification on this in relation to the circumstance where both of the car's back wheels were abutting the wheel stop. Further, it follows from the findings I have made that, if the wheel stop had been properly affixed to the floor of the car park, then it would have provided the necessary tactile response when Mr Lee's vehicle came into contact with it. In those circumstances, I accept that Mr Lee would not have applied accelerating force and the accident would not have happened.

69 In their joint report the engineers recorded being asked whether it would have been preferable to construct the perimeter barrier with concrete rather than a steel railing. All the engineers agreed that the perimeter barrier could have been constructed with concrete or metal railings and complied with the 1981 Standard, but that this barrier did not. They also agreed that a concrete barrier of the kind that was suggested in certain drawings placed before Council (date-stamped 24 February 1986, 5 March 1987 and 8 April 1987; see [259]ff below) "would have arrested the progress of the vehicle".

70 What if the barrier had been constructed using a railing, but also in conformity with the 1981 Standard? Would it have prevented the accident? In his report, Mr Alden identified a potential deficiency with the 1981 Standard being that it did not address the effectiveness of a barrier to absorb energy. Thus he addressed the position based upon the exterior barrier being constructed of concrete which he stated "would have moderate ductile capability". Mr Alden calculated the force exerted by Mr Lee's vehicle on impact as 20.9 kilonewtons based on the assumption that it was travelling at 1.9m per second and other assumptions as to the dissipation rate of energy across a concrete barrier. He stated that the force nominated by the 1981 Standard as to what should be resisted was 33.1 kilonewtons.

71 In the joint report the engineers agreed that the likely speed of the vehicle on impact with the fence was "of the order of say up to 5kph" or 1.39m per second. I suspect, but am not sure, that metal is more ductile than concrete. Even if it was less, it still seems likely that the collision of Mr Lee's vehicle with such a railing would not destroy a metal railing that conformed with the 1981 Standard. I am satisfied that, had a perimeter barrier been constructed using metal railings but in conformity with the 1981 Standard, then the accident would not have occurred.

(2) The car park

72 The car park is attached to the Carlton Crest Hotel (the "Hotel"). The Hotel has approximately 250 rooms. The car park extends over at least eight levels. Carlton's chief engineer, Mr Aung, stated that the car park held approximately 500 cars, but the Hotel's manager stated its capacity was 600 cars. Nothing turns on this. Mr Aung stated that in 2006 the Hotel was usually fully booked and the car park was often full. Carlton acquired the Hotel together with the car park in August 1996.

(a) The photographs of other railings and wheel stops

73 I have already referred to the photographs taken by Mr Wilmshurst six days after the accident. When he attended, Mr Wilmshurst observed that there were a number of wheel stops lying on their side or otherwise out of position. This is supported by one of his photographs which shows a row of eleven car spaces on one of the levels. The photograph depicts three adjacent wheel stops completely unattached from the floor and turned on their side. One of Mr Gardyne's photographs appears to show the same wheel stops although they have moved since the time that Mr Wilmshurst first attended.

74 As previously noted, the external metal railing that failed Mr Lee was also used as an external barrier to other parts of the car park. Mr Wilmshurst took photographs of the attachment points for the vertical rail posts for some of these railings. In one of the photographs the distance between the edge of the horizontal plate attaching the vertical railing to the floor of the car park and the edge of the concrete was only 48mm. With a number of these attachment points Mr Wilmshurst observed large gaps between the bottom of the plate and the concrete floor, and that there was no "sign of concrete or grout packing". Mr Taylor also observed cracking in the slab near the point where a railing is attached to the concrete floor, and noted that this would reduce the load carrying capacity of that railing.

75 Some of Mr Wilmshurst's photographs are taken from outside the car park. They show a clearly visible bent and damaged railing on one of the upper floors. Mr King SC addressed these photographs in his written submissions:

"The deformation in one of the railings shown in the photograph looks more like a downward deformation than an outward one as the expert evidence orally agreed, and it could conceivably have been brought about in the space of time between the accident and the taking of the photograph. Somebody trying to unload something and dropping it could have caused it. In any event, a member of the first defendant's staff observing this damage comfortably before the accident would have been entitled to conclude that it was a demonstration that the railing could withstand a degree of impact, especially if there were some outward rather than downward deformation."

76 As noted, the photograph was taken six days after the accident. In circumstances where I am satisfied that there was no system of inspection for such defects in place (see below) and the car park has been in operation for over a decade, the likelihood is that this defect existed well prior to Mr Lee's accident (Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [34]). The deformed railing depicted in the photographs is the second from the bottom. It is dented downwards. The railing immediately above it is not dented. It is possible to conceive of something being taken out of the boot of a car and being dropped at a particular angle so as to cause the indentation, but it seems very unlikely. This theory was not taken up with any of the engineers.

77 In his evidence Mr Jamieson suggested that the dent could have been caused by "a vehicle backing into it and causing some wedging effect", possibly a "tow bar". I accept Mr Jamieson's assessment as representing the most likely cause of the dented railing. Otherwise, it is true that if any Carlton employee had noticed it they might have concluded that that railing could "withstand a degree of impact" (although none said they did). However they should have also concluded that it was weakened, and wondered how it was caused in the first place.

78 Two of Mr Gardyne's photographs show obvious stretching of the connection between some exterior railings. It is apparent to any observer who noticed that the capacity of that railing to resist force is diminished.

79 The deficiencies with the wheel stops and grouting described above appear to be relatively long-standing, although it cannot be concluded that they date from the time of construction. However, attached to Mr Taylor's reports were photographs of two anchor bolts attaching the base plates of a metal railing to the floor of the car park. The bolts are skewed. Mr Alden considered that these bolts were not installed correctly. Mr Taylor also identified and photographed an inadequately welded base plate.

80 In his report Mr Alden stated that the dislodged wheel stops, gaps under the base plates, incorrectly installed anchor bolts and concrete cracking at and adjacent to the base plates were "clearly visible". However, visible from what distance and for what period? The dislodged wheel stops would have been obvious to anyone who walked in the vicinity of the car parking spaces. It is likely that at least some of them were dislodged for a significant period prior to the accident. The incorrectly installed anchor bolts would be noticeable from a distance of at least 1 to 2 metres, although the viewer would most likely need to be inspecting the railing. The same applies to the gaps under the base plates and concrete cracking. The deficiencies in the installation of the two anchor bolts and the welded base plate most likely date back to the construction of the car park, and I so find. There is nothing to suggest that railings were repaired or reinstalled sometime after construction. It is not clear whether the gaps under the grout plates date back to the construction of the car park. They are certainly not recent, but I cannot conclude that they were present at the time of installation. The same applies to the cracks in the concrete near the base plates.

(b) Joe Yurdakul

81 Joe Yurdakul knew Ms Lee through her vocation as a speech therapist. Some time after the accident he was speaking to her and realised that her husband's death had occurred at a car park that he had used for many years. He said that on one occasion in 2005 he had parked at the car park and found himself close to the edge and held onto the railings for support. He said that "[a]s soon as I touched the railings, they swayed and I realised they were not secure". He said the railings swayed at least "5cm".

82 In his statement Mr Yurdakul said he then spoke to the cashier about the unsteady railings. The relevant part of his written statement was as follows:

"... As I had a small child I was worried about the unstable railings. I told the cashier, whom I think was called Vito, where in the car park it had happened and warned him of the loose railings. The cashier said to me in words to the following effect 'the whole place needs to be looked at'. He subsequently took my telephone number and informed me that he would 'let the management know and get them to call you'. I received no calls from the managers of the Carlton Crest Hotel or the car park." (emphasis added)

83 Mr Yurdakul also stated that about two months later he parked at the cark park. He noted that the "railings were swaying in the wind on a rainy, windy day".

84 When the statement was tendered objection was taken to the italicised portion set out in [82] above. I rejected it. Mr Yurdakul then gave oral evidence. He was asked about this conversation. He said that:

"I approached the cashier and explained the circumstance of what I just experienced [ie the unsafe railing] and he advised, he took my name and number down and he said that I would expect a call from Vito."

85 In cross-examination Mr Yurdakul was taken to the inconsistency between his statement and his oral evidence as to which person was called Vito, being either the cashier or the manager. (This cross-examination had the effect of reading back into evidence the italicised portion of his statement set out in [82] above.) Mr Yurdakul struggled to explain the discrepancy, although he ultimately explained that when he made the statement the name that "stuck in my head was Vito", and added that it was possible that the person who he was told would call him was "the same individual that was taking cashier payments on the day". Ultimately it was put that Mr Yurdakul made his evidence up in an effort to assist Ms Lee's case. I address the challenge to Mr Yurdakul's evidence below.

(c) Huseyn Salicioglu

86 Huseyn Salicioglu was working as a cashier at the car park at the time of Mr Lee's death. He said he reported it to the duty manager, Vito Ricapito.

87 Mr Salicioglu had worked at the car park part-time since 2001. He stated that he had parked in the car park in that time and observed the car stops and perimeter safety rails. In his statement he said that "they were in a satisfactory state and I did not have any concerns about them from a safety point of view or concerns of any kind". He denied ever having received any complaint or adverse comment about the safety of the car park. He said that if he had received a complaint he would have passed it on to a person "at the hotel concerned with maintenance of the car park". He recalled there was such a person but could not recall their name.

88 He also recalled that "[m]aitenance or engineering personnel did come to the car park on what were obviously inspection trips". However he was asked in cross-examination whether he observed Carlton's chief engineer, Mr Sandy Aung, carrying out inspections of the car park. He denied that he did so.

89 In cross-examination, and after some prompting, Mr Salicioglu accepted that if anyone asked him to report something to the manager he would tell them that he would pass it on to "Vito". He denied receiving a complaint that the metal railing was unsafe. He said that if he received a complaint about someone breaking into a car he would fill in a form, but otherwise if he received a complaint about a defect with the car park he would not write it in a book, and otherwise had no system of recording complaints.

90 Mr Salicioglu also explained that in 2005 and 2006 he usually worked afternoon shifts and another person worked the morning shifts. That other person still worked for the hotel. He said that on occasions there were other people working as cashier on the morning shift. No other cashiers were called to give evidence.

(d) Vito Ricapito

91 As at 2006 Mr Ricapito was the assistant manager of the Hotel. He had worked for Carlton at the Hotel since 2004. He disclaimed responsibility for the car park and said he had no involvement with its "maintenance, upkeep, supervision or repair". However, he stated that he would usually undertake a "security patrol" at least once a shift. He said that to his observation the "perimeter safety guardrails" did not appear to be "anything other than solid and safe", although he never applied any physical force to them. In cross-examination he clarified that this conclusion was only based on visual inspections from no closer than 15m. I have already noted that one of the railings was visibly damaged from what appeared to be a collision with a vehicle (see above at [75]).

92 Further, in cross-examination Mr Ricapito stated that during his inspections he did not notice any wheel stops out of position, but if he had he would have contacted the engineering section. He was shown various pictures of wheel stops out of position and agreed he would have reported those. He stated that his inspections were "more like security, making sure there were no spills". He called it "housekeeping". He said that he did not walk along the area between the cars and the edge railings.

93 When cross-examined by Mr Miller SC, Mr Ricapito accepted he "may have occasionally" walked in the area between the cars and the external railings. He stated that he parked in the car park during this time. He was then questioned as follows:

"Q. And despite parking there five days a week, you never once saw wheel stops out of position or toppled over in the way that they are shown on the photographs that you have been taken to?

A. I may have but I wouldn't have known what to do.

Q. When you say you wouldn't have known what to do, you might have seen them but if you had seen them it wouldn't have been something that would have been of terrible importance or consideration for you to take any action?

A. No.

Q. As long as they were lying approximately in the position that they should have been in, that was good enough?

A. Probably, yeah. Unfortunately."

(e) Sandy Aung

94 Sandy Aung was employed by Carlton as the Chief Engineer of the Hotel from August 2004 to 2009. In his statement Mr Aung stated that he had noticed a "few" of the wheel stops had "tipped over" but recalled they remained in position. He thought that they would have "been struck by the wheels of any car comfortably before it was at risk of striking the barrier". In oral evidence he explained that the wheel stops were extremely heavy. He said they were not meant to operate as a barrier but instead to provide "an indication" to the driver.

95 In his statement Mr Aung said that he had seen "no need to institute safety checks or testing of the concrete wheel stops or perimeter barriers". He continued:

"Prior to the incident I had seen no need to institute safety checks or testing of the concrete wheel stops or perimeter barriers. Inspections of the wheel stops and perimeter barriers by my staff were made visually. Occasionally members of the staff would lean against them putting some weight on them. There was never any sensation of insecurity reported to me or observed by me.

At all times preceding 5 March 2006, the perimeter barriers in the car park building had given the appearance of being solidly and safely secured. No one, including both staff and members of the public, had ever voiced any concerns [to me] about the perimeter barriers. [I never observed] any sign of impact damage affecting them, or any damage at all." (emphasis added)

96 The concept of "my staff" as discussed in these passages needs to be explained further. Mr Aung was trained as a marine engineer. He said that his department consisted of five full time staff, but he was the only person in the maintenance department with engineering qualifications. The remainder were labourers or had a "handyman type of a qualification".

97 In the first paragraph of the above extract Mr Aung stated that prior to Mr Lee's accident he had seen no reason to institute safety checks or testing of the concrete wheel stops or perimeter barriers. Whatever force this assertion had soon evaporated. Under cross-examination he explained that he did not have any responsibility for the car park, and that the only role of his department was to undertake minor repairs if requested, such as changing light bulbs.

98 Mr Aung was pressed concerning his assertion that the barriers and wheel stops were inspected. He stated that he never saw that happen. He was then pressed on whether he heard his staff say they had inspected those items. He did not hear them say that they did. In answer to questions from the Court he stated that he had placed his hands on "some of [the rails], one or two or three" over the period he was employed, but he was never advised by his staff that they had done so.

99 Mr Aung was asked whether anyone with engineering qualifications ever inspected the car park during the period he was employed by the Hotel. He said that he was not aware, but added that "I was in charge of the hotel side of it, and I'm not in charge of the car park side of it, so I am not aware of what the car park has been doing". He stated that the car park "has their own management". He said they never requested his advice about whether Carlton should engage an independent engineering consultant or about what should be observed during maintenance inspections. Ultimately he stated that "I never get involved in any car park matters".

100 In cross-examination Mr Aung agreed that if a car collided with the railing at speed it could fail completely. He was asked whether reduced force was required if the railing "was a bit loose". He asserted that the "car cannot hit the barrier without hitting the slab on the floor [ie the wheel stop]". However he agreed that one of Mr Gardyne's photographs showed a wheel stop out of position such that the car would hit the railings without moving the wheel stop. He also accepted that one of the photographs showed the base plate for a railing was not properly connected to the concrete floor and rendered the railing "fundamentally unsafe".

(f) Bobby Toh

101 Carlton tendered a statement from Bobby Toh dated 10 March 2006. Mr Toh was the general manager of the Hotel from July 2004. Mr Toh had passed away by the time of the hearing. He stated that "[a]t none of the Hotel's OH&S meetings had any issues been raised by any member of staff or any outside agency, that there were problems with the design and construction of the perimeter safety rails". His statement recounted his belief that the perimeter railings were safe.

(g) Kanwarpreet Kanwar

102 Carlton tendered a statement from Kanwarpreet Kanwar dated 15 July 2013. Mr Kanwar was Carlton's Revenue and Car Park Manager during the period June 2004 to May 2006. From 2001 to June 2004 he was employed as the Business Unit Manager - Car Parks. Mr Kanwar was in Pakistan during the hearing. His statement was tendered without his being called on the understanding that the inconvenience of adjourning the proceedings to call him was not justified, but that the other parties did not have the opportunity to test his evidence in cross-examination.

103 Mr Kanwar stated that cleaning contractors were engaged to clean the car park twice per day. He also said security staff patrolled the car park out of hours. He said that if any "damage or maintenance issues" were identified by the cleaners or security they would be reported to him. He said the cashiers would conduct inspections a "couple of times per day" and "make similar reports if required". He said if the reports required action they would be reported to Mr Aung.

104 Mr Kanwar also stated that "monthly OH&S meetings" were held. He said that no concern was raised at any of those meetings concerning the perimeter rails. He denied that, at any time prior to 5 March 2006, he had received any comment from either staff or customers regarding the perimeter barriers. He also stated:

"I had always considered that the perimeter barriers had been properly and safely installed. They appeared sound to visual inspection and felt sound if you leant against them. I did not ever see any indication that one of them had been damaged or loosened through being struck by a vehicle or otherwise.

In relation to the concrete wheel stops, to visual inspection it was apparent that some of them had tipped over but to my recollection they were all in position. This was not surprising to me. Although I had never weighed one of them they seemed very heavy ..." (emphasis added)

105 This extract only emphasises the problems with Carlton's maintenance system. The photographs described above demonstrate that the perimeter railings were not sound on "visual inspection", regardless of whether the inspection was undertaken up close or from a distance. As I have stated, one of the perimeter railings had an obvious dent that was visible from the ground outside the car park. Mr Kanwar's denial that he had seen any of them "damaged ... through being struck by a vehicle or otherwise" is flatly contradicted by that photograph. If any reasonably close inspection of the perimeter barriers had been undertaken it would have revealed all of the defects that I have identified above. Otherwise, the wheel stops were clearly not "all in position".

106 The above extract from Mr Kanwar's statement suggests that he leant against the barriers at some point, but he does not state whether he leant against all of them. If he had, then he could not have missed the various defects identified in the various photos that I have described.

107 It is not necessary to dwell on this further. Due to the difficulties I have identified, I attribute no weight to Mr Kanwar's assertions concerning the safety of the perimeter railings.

(h) Findings

108 Carlton's witnesses did not advance its case. To the contrary they damaged it. When confronted with the state of the car park as revealed by the photographs, both Mr Ricapito and Mr Aung disclaimed responsibility for its maintenance. I have just outlined the difficulties with Mr Kanwar's evidence.

109 In the end result I am satisfied that there was no system of inspection of the car park to detect maintenance or structural defects such as the loose wheel stops or the problems with the railings that I have identified. The only "system" identified in the evidence is that noted by Mr Kanwar which involved security personnel and cleaning staff.

110 Further, I am satisfied that there was never a structural inspection of the car park by an engineer or anyone with building qualifications in the period after its acquisition by Carlton. None of the witnesses asserted there had been such an inspection. If there had been, I expected that any competent inspection would have identified the various deficiencies in the railings and wheel stops that have already been discussed.

111 This brings me to the two relevantly contested aspects of Mr Yurdakul's evidence, namely, that he leant on a loose perimeter railing (and noticed one swaying in the wind), and that he advised a cashier to that effect. In relation to the former claim, there was no direct evidence from Carlton establishing that any member or members of staff had checked all the perimeter railings. Having considered the matter, I accept Mr Yurdakul's evidence in that respect. It is consistent with the generally lamentable state of at least some of the perimeter railings, as revealed by the photographs.

112 I also accept Mr Yurdakul's evidence that he advised a cashier on what he encountered when he leant on the railings. I accept that he contradicted himself between his written statement and oral evidence as to whether the cashier's name was "Vito", or the person to whom the cashier would report the complaint was called "Vito". At the time Mr Yurdakul gave his evidence I formed the impression that he was clear in his recollection that he told the cashier, but confused as to what the cashier said he would do with the information. That impression has only strengthened over time. Carlton's evidence did not suggest that any such complaint would be taken seriously. Mr Yurdakul attributed to the cashier the statement "the whole place needs to be looked at". This comment reflects the reality of the state of the car park.

113 I am, however, not prepared to find that Mr Salicioglu was the cashier that Mr Yurdukal spoke to, or that any such complaints were passed on to Mr Ricapito. With the latter, there was no system for recording complaints or comments of that kind. Nevertheless I am satisfied that members of Carlton staff were specifically aware that wheel stops had become unfixed and were out of place. I also infer that Carlton staff must have noticed that at least one of the perimeter railings was damaged, being the railing described above at [75]. However, there was no evidence that any of Carlton's employees were aware that the wheel stop at the location of Mr Lee's accident was not fixed at one end, or were aware or warned that the particular railing that failed in this case was incapable of providing any real resistance to an impact.

(i) Expert evidence as to inspection regime

114 In their joint report the four engineers were asked whether "[h]aving regard to the role of [Carlton] as the owner and occupier of the car park ... what preventative measures might have been taken by ... [Carlton]"? They responded:

"Normal maintenance would have involved periodic inspections, which should have detected problems with the metal barrier base fixings [as described in Mr Alden's report at figure 4.4] sufficient to call in a structural engineer. This should have resulted in the structural problems with the metal barriers being identified and addressed ... Likewise normal maintenance inspections should have identified problems with the fixings of wheel stops (due to displacement of these at various locations), prompting rectification works."

115 Mr King SC's submissions asserted that the engineers, especially Mr Alden, were suggesting the car park be inspected "annually by a structural engineer". This is not what is stated in the above nor in his report. Instead, Mr Alden stated that in his experience part of a maintenance regime "typically involves monitoring the structur[al] elements of the building through periodic inspections". He stated that if any problem was identified, a structural engineer could then be consulted. Mr Alden nominated a typical inspection interval as one year, at least for a building that had been constructed a number of years previous.

116 In the above extract from the engineers' joint report the authors considered that the outcome of a building inspection would have been to reveal sufficient structural problems to warrant calling in an engineer, and that this would have led to those problems being "identified and addressed". For the sake of completeness I note that in his oral evidence Mr Alden expanded upon what an engineer would have concluded had she or he inspected the railing, stating:

"I think I did give evidence before that an engineer, being asked to look at the connection of the railing to the floor, would have, in order to look at that, would have had to give consideration to the required capacity and that would have, in my opinion, led him to the conclusion that that was only ever meant to be a pedestrian railing. It was certainly not robust enough to be considered a vehicle barrier." (emphasis added)

117 Whether the discharge of Carlton's duty of care required the undertaking of regular inspections of the fabric of the car park and, if so, by whom is a matter I will address next. At present the significance of this evidence is that the uniformity in the engineers' opinion demonstrates two matters. First it demonstrates what would have been revealed by a maintenance inspection, namely "problems with the metal barrier base fixings" as well as the wheel stops. Second it demonstrates that if an engineer had inspected the premises they would have identified a number of substantial structural problems with the railings, especially their non-compliance with at least the 1981 Standard, and recommended that those wider structural problems be addressed.

(3) Is Carlton liable in negligence?

118 There was no dispute between the parties that Carlton owed both Mr and Ms Lee a duty of care, although the scope and content of that duty was very much in dispute. Paragraph 14 of Ms Lee's Amended Statement of Claim ("ASOC") pleaded a vast number of particulars of negligence on the part of Carlton which also constitute "precautions" for the purposes of ss 5B and 5C of the CLA. However Mr Cavanagh SC's written submissions only identified six matters which he submitted Carlton was required to undertake, namely:

"(i) have a proper system of inspection in place to ensure that defects were detected and repaired, particularly those which might impact upon the safe use of the premises or offer protection from the risk of catastrophic injury;

(ii) have a proper system of maintaining the premises which involved not only regular inspections by people competent to detect defects but periodic inspections by engineers particularly charged with the task of inspecting areas where there may be a safety risk;

(iii) ensure that its premises complied with modern (or even old) standards relevant and applicable to the safe use of the premises;

(iv) engage a suitably qualified expert at least at some stage during the 10 years of its occupation and indeed periodically to inspect the premises to ensure that they complied with relevant safety standards;

(v) ensure that wheel stops were safe, secure and in position at all times so that they could achieve their essential and fundamental purpose;

(vi) ensure that such a fundamental safety feature of the premises as the metal barrier providing edge protection was capable of withstanding loads likely to arise from vehicle impact and was safe and secure so as to withstand vehicle impact."

119 These matters appear to be an attempt to identify the content of the duty of care owed by Carlton. However I will also treat them as identifying the relevant breaches by Carlton of its duty of care (and "precautions" for the purposes of ss 5B and 5C). This appears to be the basis upon which both Carlton and the Council approached the matter. This does not involve a departure from the pleaded case. To the contrary, it appears to be a narrowing of the pleaded case.

(a) Duty of care

120 At least so far as Ms Lee's case against Carlton under the Compensation to Relatives Act 1897 is concerned, none of the provisions of the CLA addresses the scope and content of the duty of care owed to her. Instead, recourse must be had to the general law. So far as her claim for nervous shock is concerned, the duty owed to her by Carlton is partly governed by ss 31 and 32 of the CLA which are addressed below.

121 Paragraph 5B of Ms Lee's ASOC pleaded that Mr and Ms Lee entered into the car park "under contract", and that Carlton warranted the premises were "as safe for the purposes of the contract as reasonable care and skill on the part of anyone [could] make them". This formulation of the duty was not taken up in Mr Cavanagh SC's submissions and was disputed in Mr King SC's submissions. It appears to reflect the formulation of the duty referred to in the cases discussed in Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; 173 CLR 33 at 38 ("Calin"). However, on the facts in Calin, that formulation was found to not result in any different standard to that of the "reasonable care expected of the operator and occupier of a cinema" (at 40-41). I will ignore the former and adhere to the latter formulation with the substitution of "car park" for cinema. The relevant question is the scope and content of that duty.

122 In this case the scope and content of Carlton's duty is informed by the following circumstances (see Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234; 214 ALR 452 ("Thompson")). First there is Carlton's status as the owner and occupier of the car park. It controlled access by cars and vehicles to the car park. It had the relevant control over its maintenance and repair. Its power of control is of particular significance in determining the scope and content of its duty, especially so far as the physical condition of the premises is concerned (Thomson at [24]).

123 Second, there is the conduct by Carlton of the significant commercial activities inviting members of the public to enter their premises and use their services for reward. Mr and Ms Lee fell within that category (Thompson at [24]).

124 Third there is the fact that the relevant service was a car park. The operation of car park necessarily involves the transit of a very significant level of traffic in pedestrians and vehicles in and out of the car park, with consequential risks to safety of persons and property. As noted, this was a large and busy metropolitan car park offering parking for at least 500 cars.

125 Fourth, Carlton was entitled to assume that users of its car park would generally act with a reasonable level of prudence in driving and parking their vehicles and looking after themselves. It was entitled to expect that persons parking cars in the car park would be adults with driving licences.

126 Fifth, there is the nature of the damage suffered in this case. In so far as Ms Lee brings a claim under the Compensation to Relatives Act 1897, this case is to be approached on the basis that it involves liability for personal injury (to Mr Lee) and not pure economic loss.

127 In respect of Ms Lee's "nervous shock claim", ss 30(2), 31 and 32 of the CLA provide:

"30 Limitation on recovery for pure mental harm arising from shock

...

(2) The plaintiff is not entitled to recover damages for pure mental harm unless:

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or

(b) the plaintiff is a close member of the family of the victim.

31 Pure mental harm - liability only for recognised psychiatric illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

32 Mental harm - duty of care

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(a) whether or not the mental harm was suffered as the result of a sudden shock,

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff."

128 It was accepted that Ms Lee suffers and continues to suffer from a "recognised psychiatric illness" (s 31, s 32(1)), that such harm is a result of a "sudden shock" (s 32(2)(a)) and that she witnessed the scene when her husband was killed (s 30(2)(b); s 32(2)(c)). Ms Lee satisfies the definition of "close family member" of the victim for the purposes of s 30(2)(b).

129 Further there is no doubt, in the circumstances of this case as just described, that Carlton ought to have foreseen that a person of "normal fortitude might ... suffer a recognisable psychiatric illness if reasonable care was not taken". The contrary was not suggested, and nor was it suggested that any differentiation was warranted between the duty of care owed by Carlton to Mr Lee in respect of physical injury and to Ms Lee for psychiatric harm.

130 In light of these considerations it cannot seriously be doubted that Carlton had a duty to take reasonable steps in respect of any defect in the car park premises of which it was aware or at least suspected (which may arise from a warning). This corresponds with the scope of the limited duty that is often imposed on an owner of residential premises which can extend to require the attendance of experts (Jones v Bartlett [2000] HCA 56; 205 CLR 166 at [188] per Gummow and Hayne JJ ("Jones"); Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 at 370-371; Austin v Bonney [1999] 1 Qd R 114 at 120, 124-125).

131 However I do not consider the duty was so limited. Carlton was the owner and occupier and used the premises to operate a significant commercial enterprise, inviting members of the public and their cars to use the premises. In Drotem Pty Ltd v Manning [2000] NSWCA 320 ("Drotem") the respondent had slipped and fallen on an access ramp leading from a car park to the area of a medical centre owned and occupied by the appellant. The trial judge found that the ramp was unduly steep and otherwise slippery in part due to the presence of moss and water run-off from a nearby air-conditioner (at [27]). Both at trial and on appeal the appellant contended that, in circumstances where the design and construction of the ramp had previously been approved by expert engineers and the relevant Council, and it had no knowledge of any prior falls or other means of knowledge of the risk posed by the ramp, it was not liable (at [35] and [41]). However, the trial judge found that there was imposed on the appellant "an obligation of regular inspection" which, if discharged, would have resulted in a detection of the various defects and their rectification (at [36]). The finding of liability was upheld by the Court of Appeal.

132 Powell JA identified the approach to determining the scope of a duty of the owner and occupier of property in terms that were later reflected in Thompson, namely, that "the scope of that duty will vary according to the circumstances and, in particular, the nature and size of the place, the nature of the activities carried on within it, and the likely characteristics of the members of the general public who might reasonably be expected to attend the premises" (at [48]). I have already addressed those factors in the context of the car park above. His Honour then identified the scope of the duty owed by the appellant in Drotem as follows (at [52]):

"It seems to me that Drotem's duty to take reasonable care to avoid injury to persons using the car park, ramp and path required it to have in place a system for the cleaning of the car park, ramp and path and removing rubbish, for the periodic inspection of the car park, ramp and path to ascertain whether there had been any deterioration in the respective surfaces and for the taking of reasonable steps to rectify any deterioration." (emphasis added)

133 The car park involved in Drotem appears to be a far more modest undertaking than Carlton's car park. Nevertheless I will proceed on the basis that the scope of its duty is analogous to that identified in Drotem. Translated to the circumstances of this car park, a "periodic inspection of the car park" is a reasonably close inspection of the floors, surfaces and railings, and a visual inspection of the exterior of the car park including the exterior perspective of the railings. In the context of this car park an analogous inspection to ascertain any "deterioration in the respective surfaces" is an inspection for the purpose of ascertaining any potentially significant and obvious defects or disrepair of the interior or exterior surfaces of the car park.

134 Accordingly, I find that the scope of Carlton's duty to take reasonable care to avoid injury to persons using the car park at least required it have a reasonable system of inspection of the surface of the interior and exterior of the car park to ascertain the existence of any potentially significant and obvious defects or disrepair, including any such defect or disrepair in its external railings, wheel stops, ramps, fire stairs, etc., and taking reasonable steps in response. As the present discussion concerns the scope of Carlton's duty, it is not necessary at this point to address what specifically this required in the context of this case, however three matters should be noted.

135 First, to the extent that the third, aspects of the fourth, the fifth and sixth of the various alleged obligations of Carlton identified in [118] above are pitched in terms of "ensur[ing]" various matters, they travel beyond any obligation imposed by the law of negligence. This is so because "while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care" (Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [49] per Gummow J ("Dederer")). Thus, for example, the fifth obligation would appear to be breached if the wheel stop was not safely secured because it had been damaged by the car that used Mr Lee's car space in the period immediately prior to Mr Lee's accident. To comply with that obligation Carlton would have had to have a permanent maintenance team on stand-by 24 hours a day ready to instantaneously repair a wheel stop. Just as a residential landlord does not owe a duty to ensure there is absence of defects (Jones at [193] per Gummow and Hayne JJ), nor does an owner or occupier of commercial premises owe such a duty either (Tweed Shire Council v Hancomatic Music Pty Ltd [2007] NSWCA 350 at [223] ("Hancomatic")).

136 Second, in his written submissions, Mr King SC submitted that aspects of the obligations Mr Cavanagh SC asserts were owed by Carlton amount to a requirement to undertake a "safety audit" by someone with special expertise, and that the decision in Hancomatic "shows that even in respect of commercial premises, where there is no indication to the occupiers of a problem, no such obligation arises".

137 Even if that represented a completely accurate statement of the effect on Hancomatic, it would not assist Carlton because the findings I have made reveal that there was an indication to Carlton "of a problem". However, I do not accept that Hancomatic establishes the principle asserted by Mr King SC. Hancomatic involved an action by the family of a child of the operators of a motel against the owners. The child had died from lacerations after running into a sliding glass door in the reception area of the motel (at [3]). The door was made of annealed glass rather than safety glass. It was found that the door was constructed prior to a requirement that safety glass be used (at [68]). The trial judge found the owner, Hancomatic, liable for failing "to make appropriate inquiries and conduct a safety audit" when certain renovations were undertaken (at [10]).

138 The Court of Appeal overturned that finding (at [232]). It did so in circumstances where the duty found by the trial judge was not conditioned by reasonableness (at [213]). Hancomatic had arranged for the building of the motel at a time when the standard did not require safety glass, had relied upon a licensed builder to do the work, and neither the builder, the lessee or its proprietors had "actual knowledge about the relevant dangers of annealed compared to safety glass" (at [218]). Much of the Court of Appeal's reasoning in Hancomatic relied on Jones and other cases dealing with residential premises. Their Honours explained:

"223 We recognise, as did the primary judge, that Jones and Ahluwalia involved residential premises. What is reasonable to be done in one situation may not be reasonable in another (Jones at 185[58], 216[174]). But the nature of the premises is not determinative of the scope of the relevant common law duty, which remains one that is focussed upon what is reasonable in the circumstances even for commercial premises or premises open to the public ..."

139 Hancomatic does not establish the general principle in relation to commercial premises contended for by Mr King SC. As noted, Hancomatic was not, at the relevant time, the occupier of the premises. Further, the nature of the commercial premises was very different from the present case. The reception area of the motel in Hancomatic was open to the public, but it is very different to a metropolitan car park that can accommodate 500 cars.

140 Third, the above discussion of the scope of the duty has two aspects, namely knowledge, actual or imputed, of a defect or disrepair and then response. In relation to the former, I have already made findings that Carlton had knowledge of some aspects of the state of disrepair of the car park prior to the accident, namely the shambolic state of some of the wheel stops and the damaged railing referred to in [75]. I have also accepted that Mr Yurdakul warned a cashier about the poor state of one of the railings prior to the accident. Whether Carlton should have been aware of further defects and disrepair depends on what was required of Carlton to discharge the duty that I have identified. That issue is governed by ss 5B and 5C of the CLA which I address next.

141 In relation to the requisite response to a defect, in Jones at [182] Gummow and Hayne JJ referred to landlords responding to identified dangerous defects by either "remov[ing] them or otherwise ... mak[ing] the premises safe" (at [182]). However the ensuing discussion at [183] to [188] makes it clear that the response to the identification of a defect or item in disrepair is not an absolute one. It is also conditioned by reasonableness. Similarly Powell JA in Drotem at [52] referred to the "taking of reasonable steps to rectify any deterioration". Again that is governed by ss 5B and 5C.

(b) Breach and precaution

142 Sections 5B and 5C of the CLA provide:

"5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."

143 The first step in applying s 5B is identifying the relevant "risk of harm". The identification of the relevant risk is central to the assessment that the Court must undertake (see Dederer at [59]).

144 The "definition of harm" includes personal injury or death, damage to property or economic loss (CLA, s 5). The formulation of the risk of harm by reference to the precise harm suffered by the injured plaintiff in the precise manner alleged is an approach that has been rejected (Benic v State of New South Wales [2010] NSWSC 1039 at [83] per Garling J). Such an approach would result in a false assessment of the criteria in s 5B(1)(a) and s 5B(1)(b) and of the reasonableness of taking specified precautions (see Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151 at [24] and [25] per Meagher JA).

145 In this case the relevant risk of harm was the risk of personal injury, including death, or property damage from a vehicle colliding or coming into contact with a perimeter railing of inadequate strength. This possibility of a vehicle colliding with the railing was clearly foreseeable and "not insignificant" (Shaw v Thomas [2010] NSWCA 169 at [44] per Macfarlan JA, with whom Beazley and Tobias JJA agreed). Carlton via Mr Aung knew that the purpose of the wheel stops was to act as an indicator to drivers that they were at the end of their car space and nearing the perimeter fence. Yet, to the knowledge of Carlton, a number of the wheel stops were loose and out of place. In those circumstances, given the size of the car park and its location, the potential for a car or other vehicle to collide with the perimeter fencing was very real. Mr King SC submitted that there was no evidence that it had occurred before. In light of the photograph of the damaged railing that I have referred to I do not accept that, but even so the potential for such a collision was readily foreseeable.

146 What type of harm was possible from a collision with the perimeter railing? Most of the foreseeable types of collision involve a vehicle travelling at relatively slow speed when it collides with the railing, bearing in mind that it most likely arises from a parking mistake. If the vehicle collides with an adequate railing, then in most such cases there is a risk of some property damage to the car or car park fabric, or risk of personal injury. However, the present analysis concerns an inadequate railing. In such circumstances there is a realistic likelihood of serious personal injury or death resulting from a perimeter railing failing, including such injury to drivers or persons on the ground floor below the railing. This was the obvious reason to have such an external barrier in the first place.

147 In my view, it follows that that s 5B(1)(a) and s 5B(1)(b) are satisfied.

148 The next issue is whether any of the suggested precautions satisfy s 5B(1)(c) as expanded upon in s 5B(2). This assessment must always be undertaken prospectively and not retrospectively by inquiring into whether certain postulated actions could have prevented the particular plaintiff's injury (Dederer at [65]; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] to [128] per Hayne J).

149 The first of the particulars noted in [118] above involves the undertaking of an inspection of the premises, and the second particular envisages they would be conducted by "people competent to detect defects" (and also by engineers).

150 I have formulated the scope of Carlton's duty in [134] above. What did a reasonable system of inspection referred to require? As noted, Mr Alden contemplated annual inspections. However I do not consider that the obligation was that stringent. Instead, I consider that reasonable care required a reasonably detailed inspection of the exterior and interior of the car park by someone with some level of building qualifications from around 2001 and every two years or so thereafter. By 2001, and certainly by 2003, Carlton had owned the car park for a number of years and it was well over a decade since it was constructed. By 2003 I expect that a number of the wheel stops were displaced and there were some obvious signs of wear and tear. At the very least, Carlton would need someone to document the various problems, and that person would need to be able to distinguish defects that were of potential significance in terms of safety from those that were not.

151 In relation to s 5B(2)(a), the undertaking of such inspections would not of itself affect the probability of the type of serious harm noted in [146] not occurring, but it would be an important step in taking ameliorative action. The burden of taking this precaution would be the cost of the inspection (s 5B(2)(c)). Mr Cavanagh SC tendered a monthly report for September 2006 recording that both the Hotel and car park were deriving substantial operating profits and had been for some time. I therefore do not accept that the burden of taking this precaution would be significant having regard to the scale of the car park's operations and what is known about its profitability. I am satisfied that the exercise of reasonable care required the undertaking of such an inspection. I am also satisfied that Carlton did not undertake it or anything like it.

152 What would such an inspection have revealed? First it would have revealed the extent of the problems with at least some of the wheel stops, being those that were obviously displaced.

153 Second, this process would have led to a check of all the wheel stops in the car park which would have revealed that the wheel stop in Mr Lee's car space was not properly affixed to the car park floor. This is so because, at some point it would have been apparent on one of these inspections that there were a number of faulty wheel stops, and that this could result in damage to vehicles and collisions with the exterior of the car park, including the railings. This should have prompted a check of the extent to which the other wheel stops were properly affixed. Even if it had not swivelled out of position, a perfunctory check of the wheel stop in the car space that Mr Lee parked in would have revealed that it was not affixed at one end. The engineers agreed that that wheel stop was only affixed to the floor of the car park at one end from the time of its installation. The fixing of the wheel stops would have reduced the potential for all forms of harm identified in [146] materialising, including the risk of harm that materialised in this case.

154 Third, it would have revealed the loose railing encountered by Mr Yurdakul.

155 Fourth, it would have revealed most if not all of the defects in the perimeter railing identified by Mr Wilmshurst and Mr Gardyne's photographs. As noted, the skewed anchor bolts date from the time of the building's construction, and the concrete cracking and absence of grout under the base plates would have been apparent for a considerable period prior to the accident.

156 What would have followed from such an inspection? As contemplated by the four engineers in the passage noted at [114], the outcome of such an inspection would have been "sufficient to call in a structural engineer". I consider that any reasonable operator of a car park would have then commissioned a report from an engineer. The observations that I have made in [151] concerning s 5B(1)(c) and s 5B(2) apply with equal force to that step. In turn, that engineer would have provided the same advice as the four engineers in this case, namely that aspects of the perimeter railings construction were sub-standard, that it had deteriorated in the meantime and, most importantly, it did not comply with the load bearing standards in place at the time of its construction (nor any since).

157 What did reasonableness require by way of a response to the identification of these defects? By this time Carlton would have been fixed with knowledge that a number of wheel stops were not properly fixed, and that the perimeter railings beyond them did not meet the load standards. In those circumstances the only reasonable response would have been to cease the use of those areas of the car park that were protected by railings until they could be repaired either temporarily or permanently. Permanent repairs would have involved the proper affixing of the wheel stops and the building of replacement perimeters that complied with the 1981 Standard (and presumably the prevailing standards) and was made of a moderate ductile material such as concrete as referred to by Mr Alden. The financial cost of these courses of action was not the subject of evidence. Ceasing to use parts of the car park would involve loss of revenue, and repairing the external barriers would no doubt involve very substantial building costs (s 5(2)(c)). Nevertheless the continued operation of such a large commercial car park in such a condition was untenable. The entire purpose of a perimeter barrier that complied with the load standards was to provide an effective barrier to prevent vehicles falling out of the upper levels of the car park.

158 By this process of reasoning, I am satisfied that the exercise of reasonable care required Carlton from no later than around 2001 to undertake an inspection of the kind referred to in [150]. Further, the exercise of reasonable care would have required Carlton to commission an engineer's report in response to the outcome of that inspection and, at the very least, to cease the use of those areas of the car park until they could be repaired either temporarily or permanently with Council approval. Carlton did not take any of those steps. I consider that it was negligent not to do so.

159 The above reasoning concerning the appropriate precautions takes as its starting point the duty of care that I have identified in [134] above. If the duty was of the more limited nature as stated in [130], namely a duty to take reasonable steps in respect of any defect in the car park premises of which Carlton was aware or at least suspected, then I consider that the outcome would have been the same. From the time in 2005 that Mr Yurdakul advised the cashier of the shoddy state of the perimeter railings Carlton was aware that there were reasons to doubt the adequacy of at least one perimeter railing, and was also aware that a railing was damaged and a number of wheel stops were unattached (see [113]). The only reasonable response to his statement was to immediately undertake a similar check of the railings which would have confirmed Mr Yurdakul's observation. This would have led to an engineer being immediately commissioned. From that point the outcome is the same as that described, although in a truncated time frame.

(c) Causation

160 To establish Carlton's liability, it is necessary for Ms Lee to demonstrate that the established "negligence" caused particular harm (CLA, s 5D(1)). Leaving aside an "exceptional case" (s 5D(2)), s 5D(1)(a) requires that Ms Lee demonstrate "factual causation" (ss 5D(1)(a)), and it is appropriate that the scope of liability extend to the harm so caused (ss 5D(1)(b)).

161 The test posed by s 5D(1)(a) involves a strict application of the "but for" test. This test is "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E" (Wallace v Kam [2013] HCA 19 at [14] ("Wallace")). It eschews policy or value judgments (Wallace at [15], citing with approval Allsop P in Wallace v Kam [2012] NSWCA 82 at [4]).

162 In this case I have found that the proper discharge of either of the formulations of Carlton's duty of care would have had the consequence that the area of the car park that Mr Lee parked in would have had a repaired wheel stop and a barrier that at least conformed to the 1981 Standard. If that had occurred, then the motor vehicle would not have crashed through the barrier. I am also satisfied that, even if the motor vehicle had collided with the barrier, Mr Lee would not have suffered such an injury that would have caused Ms Lee anything other than momentary shock or distress, and certainly not resulted in his death. It follows that s 5D(1)(a) is satisfied in respect of all of the forms of "particular harm" that Ms Lee seeks recovery in respect of.

163 Further, I observe at this point that, even if the proper discharge of Carlton's duty of care only required it to have fixed the relevant wheel stop by the time of Mr Lee's accident, then the same finding would still follow. On the findings I have made, the wheel stop's failure to provide the necessary tactile response was causative of the application of accelerating force by Mr Lee. I am satisfied that if it had been solidly affixed in the correct position then the accident would not have occurred.

164 In contrast to s 5D(1)(a), the inquiry required by s 5D(1)(b) is an entirely normative assessment. In accordance with s 5D(4), it requires "consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party" (Wallace at [14]). Nothing in this matter warrants a finding that the responsibility for the death of Mr Lee should not be visited upon Carlton, provided the other findings necessary to establish liability are made.

(4) Contributory negligence

165 Carlton did not plead reliance on any provision within Part 1A and Part 3 of the CLA that has not been addressed, other than s 5T which concerns contributory negligence on the part of Mr Lee in respect of a claim under the Compensation to Relatives Act 1897 and s 30(3) of the CLA which is to similar effect for Ms Lee's nervous shock claim.

166 Section 5R provides:

"5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."

167 Both Mr King SC and Mr Miller SC made extensive submissions concerning their respective clients' claim that Mr Lee's own negligence contributed to his death. Their task was made more difficult in that, of necessity, the submissions were made without knowing what findings would be made about the chain of events that led to the accident. That said, the essence of both their submissions concerned the conduct of Mr Lee in depressing the accelerator at some point while he reversed the car further back into the car space, bearing in mind the care that he was required to exhibit while reversing. Mr Miller SC also pointed to the actions of Mr Lee in driving up and over the wheel stop, a factual scenario I have already rejected. Both submitted that a reduction of 50% was warranted.

168 To address these contentions it is important to know what Mr Lee knew or ought to have known at the time he returned to the driver's seat and applied the accelerator to reverse further into the car space. He had attended the car park previously and was likely to be aware that there was a wheel stop. I have found that he was anticipating some form of tactile resistance. The car space was reasonably tight and his vehicle was long. As he reversed he either knew or should have known of at least a risk to property from his manoeuvre, being his own car, other cars and the fabric of the car park itself.

169 Both Mr King SC and Mr Miller SC submitted that he should have been cognisant of the potential for pedestrians, including children, to walk behind the vehicle. There was no evidence that any person or customers ever walked between the perimeter railings and the rear of car spaces. The possibility that they might can be accepted, although Mr Lee could be expected to meet that contingency via the use of his rear vision mirror. I regard the possibility of small children being present unsupervised in this part of the upper storeys to be so remote that it was not foreseeable. Further, there was little reason for Mr Lee to anticipate that there was any realistic risk of significant physical danger to himself from applying accelerating force. He could reasonably expect the exterior of the car park to provide more than sufficient resistance if he reversed that far back at a modest speed. Otherwise he had no reason to suspect any problem with the wheel stop.

170 I accept that the actions of Mr Lee in applying accelerating force when his car met some resistance from the wheel stop constituted contributory negligence. By that time and based on Ms Lee's observations of the car's position, there was no compelling reason for the car to reverse further. Applying force in such situations heightened the risk of at least damaging the car he was driving, some part of the car park itself and, less likely, other cars. In his case, the relevant risk of harm was damage to property which was both foreseeable and not insignificant, and a modest risk of slight physical injury to himself. The ameliorating action was very easy. All he had to do was stop and leave the vehicle. However the "likely seriousness" of the harm that may have been caused was relatively low, being confined to property damage and slight physical injury. In those circumstances I consider that a reduction of 20% is appropriate.

(5) Contract claim against Carlton

171 The ASOC pleaded, inter alia, that there was a contract between Mr and Ms Lee and Carlton for the provision of "car parking services". It further pleaded that a term was implied into that contract by former s 74(1) of the Trade Practices Act 1974 (Cth) (the "TPA").

172 As at 5 March 2006, s 74(1) relevantly provided:

"(1) In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill and that any materials supplied in connexion with those services will be reasonably fit for the purposes for which they are supplied."

173 All the relevant events took place on or after 13 July 2004 (see Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727 at [121]). From that date s 74(2A) provided:

"(2A) If:

(a) there is a breach of an implied warranty that exists because of this section in a contract made after the commencement of this subsection; and

(b) the law of a State or Territory is the proper law of the contract;

the law of the State or Territory applies to limit or preclude liability for the breach, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of a liability, for breach of another term of the contract."

174 Section 4B defined "consumer". Relevantly it required the relevant services to be acquired for either less than the prescribed amount ($40,000.00) or to be of a "kind ordinarily acquired for personal, domestic or household use or consumption".

175 Section 4(1) of the TPA did not define "materials" but it did define "services" as follows:

"(1) ... services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(a) a contract for or in relation to:

(i) the performance of work (including work of a professional nature), whether with or without the supply of goods;

(ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;

(b) a contract of insurance;

(c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or

(d) any contract for or in relation to the lending of moneys;

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service."

176 The starting point is to attempt to determine the existence of a contract and the parties. In its amended defence Carlton did not admit the existence of any contract with Mr or Ms Lee much less the terms of any such contract. However it did admit that it was the owner and occupier of the car park premises and that it "operated a commercial car park from the premises whereby members of the public were offered car parking facilities in return for financial reward to [Carlton]".

177 Ms Lee did not state that Mr Lee passed through a boom gate next to a ticket machine as he entered the car park, much less that he took any ticket. No ticket was produced. Nevertheless, in light of Carlton's admission and what appears to have been common ground that tickets were required to be taken to enter the car park, I would infer that some form of agreement was entered into upon entry.

178 Who were the parties and what were its terms? I cannot see how Ms Lee was a party to the contract. She was only a passenger and it was not established that she was the owner of the vehicle. It would no doubt come as a surprise to many people if they become liable to pay parking fees merely by reason of the fact that they were a passenger in a vehicle that entered a commercial car park. In the absence of evidence of an express agreement to that effect I would not infer one.

179 At this point I note that buried within the photographs taken by Mr Gardyne on his visit to the car park on 27 March 2006 was a photograph of a sign at the car park entitled "Carlton Crest Hotel Sydney - Conditions of Entry and Limitations of Liability". It purports to impose conditions and limitations upon the entry of all persons who enter the car park. In terms of identifying the contracting parties, two parts are relevant. First, condition 6 states, inter alia "[a] parking fee is payable each time a vehicle enters here. If you bring a vehicle into this Car Park, you agree to pay the parking fee set by us from time to time". Second, at the very bottom of the sheet it purports to define the entity referred to in the conditions as "we", "us" and "our". However the description is incomplete. It reads "Wilson Parking [indistinct] DNEY" and then specifies an ABN number.

180 However no use can be made of the photograph. It was not mentioned by the parties in their submissions. There was no evidence as to where in the car park it was located, much less that it ever came to the attention of Mr Lee. The reference to "Wilson Parking" is difficult to reconcile with Carlton's admission on its pleading, namely that it "operated a commercial car park" and it received "financial reward" in return for members of the public being offered car park facilities.

181 I return to Carlton's admission. Based on the terms of that admission I am satisfied that one of the relevant contracting entities was Carlton. It operated the car park and received reward for offering "car park facilities". Further, in the absence of Ms Lee being a party, I am satisfied that Mr Lee was the counter-party. The driver makes the operative decision to park a car in a car park. In the absence of proof of some agency from the owner, in the ordinary course they incur the obligation to pay the fees.

182 The next question that arises is whether the relevant contract was for the provision of services. Mr King SC submitted that it was not. It is not known with precision what the phrase "car parking facilities" in the pleading means. However, at least in the context of this case, it can be inferred that Carlton agreed to grant permission to entrants to leave their car on premises it owned and occupied for a period of time. In those circumstances I consider it inevitable that this involved the acquisition by Mr Lee of at least a "privilege" or a "facility" granted in "trade or commerce" (see [175]). Further the services so acquired were clearly for "personal" use.

183 Accordingly, I am satisfied that there was an implied term of the contract between Mr Lee and Carlton that the "services" just noted would be rendered with "due care and skill", and that any "materials" supplied in connection with those services would be reasonably fit for their purpose. Mr Cavanagh SC submitted that those materials included the wheel stop and exterior surface of the car park.

184 It is unnecessary to develop this aspect of the case further. The finding that the implied term is engaged is completely irrelevant to much of Ms Lee's nervous shock claim in tort. As I am not satisfied that Ms Lee was a party to any contract with Carlton, it follows that she cannot sue for breach of any contractual duty owed to her.

185 Further, the invocation of s 74(1) of the TPA does not advance Ms Lee's compensation to relatives claim. By the operation of ss 3 and 4 of the Compensation to Relatives Act 1897 Ms Lee brings an action in respect of any "wrongful act, neglect or default" which was causative of Mr Lee's death. This can include a breach of contract (Woolworths Ltd v Crotty [1942] HCA 35; 66 CLR 603). However, for the reasons that follow, in this case the fact that the contract contains a term implied by federal law does not give her any greater rights of recovery than those available to her in respect of her case that her husband's death was due to "neglect" on the part of Carlton.

186 It was accepted by both parties that this claim involves the exercise by this Court of federal jurisdiction. If that is correct, then it follows that s 80 of the Judiciary Act 1903 (Cth) renders ss 5B and 5C of the CLA applicable to the determination of whether there was a breach of the implied term (Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361 ("Motorcycling Events") at [150] per Gleeson JA, with whom Basten and Meagher JJA agreed on this issue). If that assumption is not correct, then s 5B and s 5C of the CLA apply on their own terms. Otherwise s 74(2A) applies to make s 5T of the CLA applicable to the claim (Motorcycling Events at [176] to [179]). Further, the measure of damages that Ms Lee can recover under the Compensation to Relatives Act 1897 is governed by that Act (see below), which are in turn regulated by the CLA. Thus the full measure of contractual damages impliedly conferred by s 74(1) (Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 at 396 per Toohey and Gaudron JJ; Motorcycling Events at [178] per Gleeson JA) appears to have no relevance to an assessment of damages for a claim under the Compensation to Relatives Act 1897. However, even if it did, s 74(2A) of the TPA would make the limitations on damages found within Part 2 of the CLA applicable (Insight Vacations Pty Ltd v Young [2010] NSWCA 137; 78 NSWLR 641 at [155] per Sackville AJA).

(6) Ms Lee's case against the Council

187 In broad terms Ms Lee contended that the Council was negligent in "approv[ing] the erection of a car parking building which was not fit for its purpose and approved and allowed the use of a non-compliant metal barrier as edge protection throughout the car park". On its face, a case so framed appears straightforward. However it is complicated by four factors. The first is that most of the relevant events surrounding the various approvals given by the Council occurred between 1985 and 1991. The second is that the statutory provisions governing the exercise of the Council's functions changed during that period. The third is that the Council contends that its documentary record is incomplete, yet there is sharp disagreement between the parties concerning what inferences should be drawn from the absence of documents in the Council's records. The fourth is that the Council complains about the adequacy and scope of Ms Lee's pleading against it. In light of those complaints, I address the case against the Council by reference to the pleaded particulars of negligence.

(a) Statutory powers and functions of the Council

188 The starting point is to address the statutory context in which the Council exercised five functions during the relevant period, namely the granting of development approvals, the granting of building approvals, the enforcement of the statutory regime, the conduct of inspections and the licensing of car parks.

(i) Environmental Planning and Assessment Act 1979: Development approvals

189 At all material times, the Council's power to determine a development application was conferred by s 91 of the Environmental Planning and Assessment Act 1979 (NSW) (the "EPA Act"). The approval power included the power to impose conditions (s 91(1)(a)). Section 90 specified the matters to be considered in granting development approvals. They included such matters as compliance with environmental planning instruments (s 90(1)(a)) and the effect of the development on the "landscape or scenic quality" (s 90(1)(c)). Mr Miller SC's written submissions correctly described these factors as "town planning considerations".

(ii) Local Government Act 1919: Regulation of building work

190 At all relevant times from 1981 onwards the regulation of building work was governed by Part XI of the LGA 1919. Section 305 vested the Council with power to control and regulate the erection of buildings within its municipality. Section 306(1) prohibited the erection of buildings in contravention of the LGA 1919 or the ordinances made under it.

191 Division 4 of Part XI was entitled "Applications, Plans and Specifications". Within that Division, s 310 provided:

"Subject to the provisions of this Act and of any ordinance every building hereafter erected in the area shall be erected to the satisfaction of the council:

(a) in conformity with this Act and the ordinances; and

(b) in conformity with the application, plans and specifications in respect of which the council has given its approval for the erection of the building." (emphasis added)

192 Thus s 310 engaged the requirements of the Ordinances, including Ordinance 70. I discuss the role of s 310 in relation to council inspections below. At this point it suffices to state that, unlike s 311, this section was not directed to granting approvals beforehand, but to a council reaching a state of satisfaction about the building that was being or had been erected.

193 Also within Division 4 was s 311. As at 1981 s 311(1) prohibited the erection or alteration of a building unless, inter alia, a council approval was obtained beforehand. The balance of that subsection and the section are not presently relevant. With effect from 2 May 1986 they were repealed and replaced by a s 311 that simply provided that "[a] building shall not be erected unless the approval of the council is obtained therefor beforehand" (Local Government (Building and Construction Industry Long Service Payments) Amendment Act 1986 (NSW) (No 20 of 1986)). With effect from 28 May 1987, s 311 was further amended by the addition of s 311(2) which required a council to keep a register of approvals for the erection of buildings given after the subsection commenced, and s 311(3) which made provision for their public inspection (Statute Law (Miscellaneous Provisions) (No 1) 1987 (NSW) (No 48 of 1987)).

194 Section 312(1) enabled "the builder or owner or his architect or structural engineer" to apply for "approval of the Council", being approval under s 311. Such applications were required to be lodged with "two copies of such plans and specifications as may be prescribed" (s 312(1)(b)). Ordinance 70 prescribed what was required (see [207] ff below).

195 Section 313(1) provided that where a consent was required under the EPA Act for a development application ("DA"), as in this case, then in respect of an application for approval of the erection of the building (under s 311(1)), a council was obliged to consider, inter alia, the design, materials, stability, building line and height of the building.

196 Critically, s 314(1) provided:

"314. (1) The council shall consider each application and the plans and specifications accompanying it, and may subject to the provisions of this Act approve, or approve subject to conditions, or disapprove thereof: Provided that -

(a) the application plans and specifications may at any time be modified in such manner or respects as the council may approve; and

(b) the council shall not approve unless it is satisfied that a building erected in accordance with the application plans and specifications, or any modifications thereof which it approves, would be in accordance with the provisions of this Act and the ordinances and the Environmental Planning and Assessment Act, 1979, and any environment planning instrument; and

(c) the council shall not approve an application for approval of the erection of a residential flat building which would not conform to one of the standards prescribed for residential flat buildings in Schedule 7." (emphasis added)

197 Four matters should be noted about this section. First it conferred on a council two powers, namely the power to grant an approval of a building application and accompanying plans and specifications, and a power to approve modifications to the application and its accompanying plans and specifications (s 314(1) and s 314(1)(a)). Second, the form of approval granted under this section was that referred to in s 311, namely the power to grant approval "beforehand" to erect a building. Third, both of the powers could not be exercised unless the relevant council was satisfied that a building erected in accordance with the relevant plans would conform with, inter alia, Ordinance 70. Fourth, the power could be exercised subject to conditions.

198 Section 314(1)(c) was repealed with effect from 4 December 1986 (Local Government (Residential Flat Buildings) Amendment Act 1986 (NSW) (No 131 of 1986)), s 4 and Sch 7. It is of no moment. However, with effect from 1 September 1990 the operation of s 314(1) was qualified by the inclusion of s 314(1A) and s 314(1AA), which provided:

"Section 314 (Duty of council) -

After section 314(1), insert:

(1A) Nothing in this Act or any other law precludes the council from being satisfied as to the compliance of the building with a provision of -

(a) an ordinance; or

(b) a publication, the provisions of which have been applied, adopted or incorporated by an ordinance,

which is prescribed for the purposes of this subsection by the acceptance of a prescribed certificate from a person having prescribed qualifications certifying that the building complies with the provision.

(1AA) A council shall not incur any liability in respect of -

(a) any advice furnished in good faith by the council in reliance on a prescribed certificate referred to in subsection (1A); or

(b) anything done or omitted to be done in good faith by the council in reliance on a matter certified in a prescribed certificate referred to in subsection (1A) (including the granting or refusal of an application for the erection of a building)."

(See Local Government (Building Regulation) Amendment Act 1989 (NSW) (No 80 of 1989), Government Gazette No 82 of 29 June 1990 at 5394.)

199 The introduction of this provision post-dates most of the relevant events in this case. However, based on the evidence of Mr Glanville summarised below, it appears that it reflected a process already in place at the Council of relying on engineering certificates (although not necessarily a certificate concerning the building as a whole). Otherwise, the location of s 314(1A) is curious. Such certificates were clearly directed to the building as constructed. However, s 314(1) was not directed to a constructed building. It concerned the approval of plans, etc, before a building was constructed. It is difficult to envisage how s 314(1A) could have been of any relevance to the Council in exercising the powers conferred by s 314(1), although it may be that Council could have approved plans in the knowledge that certifications of the kind provided for in s 314(1A) would be provided or on condition that that occur. That said, s 314(1A) appears to have identified a basis upon which the Council could have reached the state of satisfaction referred to in s 310.

200 Section 316 dealt with occupation. It provided:

"316. (1) The council may either generally or in any particular case prohibit the use or occupation, without its permission, of any building until it has been completed in accordance with the approved plans and specifications.

(2) Application for permission under this section shall be made as prescribed.

(3) The council may grant or refuse permission, or may grant permission subject to conditions, as it may deem proper in the circumstances of the case."

201 It was not suggested that the Council issued any general or particular prohibition in respect of the use or occupation of buildings within its area of responsibility that had not been completed in accordance with approved plans and specifications. Otherwise it should be noted that the power conferred by s 316 was not enlivened by a building that had been erected contrary to Ordinance 70, unless that had also the consequence that the building was not built in "accordance with the approved plans and specifications". As I will explain, in this case the Council approved various plans and specifications, but always subject to compliance with Ordinance 70. In my view the effect of that condition was to enliven the power conferred by s 316 if the building as constructed did not comply with Ordinance 70. A building that did not comply with such a condition attaching to the approved plans would not have been completed "in accordance with" those plans.

202 Section 317(1) rendered any person who did or caused to be done work in connection with the erection of a building without approval liable to a penalty.

203 Division 4D dealt with Building Certificates. With effect from 1 January 1988. (Local Government (Building Certificates) Amendment Act 1986 (NSW) (No 157 of 1986), Government Gazette No 136 of 28 August 1987 at 4807.) Section 317AB(1) enabled various classes of people, including an owner, to apply for such a certificate. Section 317AD required a council to inspect the building as soon as practicable after it was applied for. The form of certificate that was issued was that specified by s 317AE(2), which provided:

"317AE Determination of application. (1) The council shall determine an application for a building certificate by issuing or by refusing to issue a building certificate to the applicant.

(2) The council shall issue a building certificate if, following an inspection under section 317AD, it appears that at the date of the inspection -

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council -

(i) to make an order under section 317B in relation to the building or part;

(ii) to take proceedings for an order or injunction requiring the demolition, alteration, addition or rebuilding of or to the building or part;

(iii) to take proceedings in relation to any encroachment by the building or part onto land vested in or under the control of the council; or

(b) there is such a matter but, in the circumstances, the council does not propose to do any of the things referred to in paragraph (a)(i), (ii) or (iii).

(3) If the council refuses to issue a building certificate, it shall inform the applicant, by notice in writing, of its decision and of the reasons for it.

(4) The reasons shall be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate.

(5) The council shall not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter which would not entitle the council to do any of the things referred to in subsection (2)(a)(i), (ii) or (iii).

(6) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work."

204 Section 317AE(2)(a) refers to s 317B of the LGA 1919. Section 317B(1) of the LGA 1919 empowered a council to order the destruction or demolition of buildings in a "dilapidated or unsightly" condition. Section 317B(1A) conferred a similar power in respect of buildings constructed without council approval being obtained beforehand.

205 The effect of a certificate issued under s 317AE(2) was to merely state that certain forms of regulatory actions would not be taken. Section 317AG gave statutory effect to the statement by precluding a council from taking any of the actions specified in s 317AE(2) in respect of anything existing or occurring before the date of inspection or within seven years after that date that arose from deterioration of the building or part of it "solely by fair wear and tear". However, s 317AG(3) provided:

"(3) The issue of a building certificate does not prevent -

(a) the taking of proceedings against any person under section 306, 310, 311 or 317; or

(b) the making of an order under s 317D."

206 Section 317D concerned compliance with fire regulations. The other provisions have already been described. Presumably the reference to proceedings "under section 306, 310 ... or 311" means proceedings in respect of a contravention of those provisions. The exclusion of those provisions is somewhat odd in that as a matter of practice it appears that the Council considered compliance issues raised by those provisions when conducting an inspection prior to the issue of a certificate in accordance with s 317AE.

(iii) Ordinance 70: Regulation of building work

207 Each of ss 306, 310, 314, and perhaps s 317 and s 317AE, direct attention to the provisions of any relevant ordinance addressing the erection of buildings, which was relevantly Ordinance 70. Five features of Ordinance 70 should be noted.

208 First, clause 4.1 of Ordinance 70 created an offence of using or occupying a building which had not been completed in accordance with the approved plans and specifications for the building. Similarly clause 4.2 created an offence of erecting a building in contravention of the Ordinance.

209 Second, clause 3.3 of Ordinance 70 made provision for an inspection. It and clause 3.4(1) provided:

3.3 (1) The person by or in consequence of whose order a building is being erected shall give notice in writing to the Council -

(a) forthwith upon completion of any unoccupied building; and

(b) before permitting any person to use or occupy any uncompleted building.

(2) Upon receipt of a notice referred to in subclause (1) the Council shall cause an inspection to be made by its proper servant. Such servant shall inspect and report to the Council whether or not the building has been erected in accordance with this Ordinance and without material deviation from the approved plans and specifications. The servant's report shall not be read to permit any alteration whatever in the position of the building on the site.

(3) The report referred to in subclause (2) shall not be deemed to be evidence (in the event of any prosecution by the Council) that this Ordinance has been complied with.

3.4 (1) Application for permission to use or occupy a building which has not been completed in accordance with the approved plans and specifications shall be made in writing to the Council. The Council may grant permission subject to such conditions as it may deem proper in the circumstances and without prejudice to the foregoing may require that the building shall be completed in accordance with the approved plans and specifications within a period to be fixed by the Council." (emphasis added)

210 Third, Ordinance 70 created a system of building classifications and the issue of so-called classification certificates for buildings (see LGA 1919 s 319(e)). As part of that system, clause 6.3 provided:

"6.3 (1) Where, after the commencement of this Ordinance, approval is given for the erection of a building, the Council shall -

(a) on completion of the building; or

(b) where it approves, pursuant to Part 3, the occupation of an uncompleted building,

prepare a certificate of classification, in duplicate, in or to the effect of Form 1.

(2) The original of the certificate shall be issued to the person on whose behalf the building was erected.

(3) The duplicate shall be retained in the Council's office and shall be open to inspection free of charge by any person during the normal office hours of the Council.

(4) This clause does not apply to a Class 1 or Class X building."

211 Clause 6.4 provided that the certificate was required to state the class or classes of building for which the building had been designed, constructed or adapted to be used. Clause 6.1 identified various classes. Class III included hotels and class VII included "public garages".

212 Clause 6.6(3) provided:

"6.6. (3) A building erected after the commencement of this Ordinance shall not be used for a purpose -

(a) not specified in the certificate of classification; or

(b) for which it is required that a certificate of classification be issued,

unless the building complies with the requirements of the Act and Ordinances applicable to the new purpose and proposed use of the building, or the new purpose and the proposed use of the building have been approved by resolution of the Council under subclause (6)."

213 Although it is not clear, in respect of a building for which a certificate of classification is required, this clause appears to preclude the use of that building without a classification certificate being issued.

214 Another matter that is not clear is whether a council was obliged to issue a classification certificate even if it considered the building had not been completed in accordance with the approved plans and specifications, or was otherwise non-compliant with Ordinance 70. The concluding words of clause 6.6(3) appear to assume that the relevant council had already concluded the building was so compliant in respect of the uses identified in any existing classification certificate. What is less clear is how the obligation to issue a certificate in clause 6.3 is conditioned on such compliance. The better view is that clause 6.3 needs to be read with clause 3.3 and clause 3.4 so that "completion" in clause 6.3 meant completed in accordance with the approved plans and specifications, and otherwise to the satisfaction of the relevant council that it complied with the Act and the Ordinances. Such a construction is consistent with s 310. The Council did not submit to the contrary.

215 Fourth, Part 8 of Ordinance 70 prescribed the matters to be included in a building application (see [194]). Thus the "specifications" of the building that were required to be lodged had to "describe the construction and materials of which the building is to be built" (cl 8.1(5)(a)). Also, proponents were required to provide two copies of a "plan and specification of any fences ... to be erected on the allotment or on the boundaries of the allotment" (cl 8.1(1)(b)), and such specifications were required to "describe in some sufficient manner the height, materials, stability, design and position or proposed position thereof" (cl 8.1(7)(a)).

216 Clause 8.2 of Ordinance 70 provided:

"8.2 Where an application for the approval of plans and specifications of a building necessitates the submission of a structural engineer's drawings or other engineering details prepared by a structural engineer, such drawings or details may be omitted from the plans and specifications at the time of lodging the application. If the application is approved by the Council, such approval shall be subject to the following conditions -

(a) work on the footings shall not be commenced until full engineering details relating thereto have been submitted to and approved by the Council; and

(b) no stage of the building work other than footings shall be commenced until full engineering details relating to that stage of the building work and such other stages as may be specified by the Council have been submitted to and approved by the Council."

217 This provision modified the need to supply structural diagrams certified by an engineer at the outset. It thus allowed the staged submission of structural specifications on a building.

218 Fifth, Group VI of Ordinance 70 was entitled "Structural Provisions". It was subdivided into sixteen parts, each of which addressed a different aspect of building construction including foundations (Part 32) and footings (Part 33). The third part was entitled "Design for Dead and Other Loads". Within that Part, clause 30.1 provided, inter alia:

"(1) Except as permitted by subclause (2), the design of every building shall comply with the relevant provisions of Australian Standard 1170 'SAA Loading Code' -

(a) Part 1 'Dead and Live Loads', except rule 1.5 thereof; and

(b) Part 2 'Wind Forces'."

(The balance of the subclause conferred on the Council various powers to allow exemption and exclusions from subclause (1) which are of no present relevance.)

219 Thus, via clause 30.1, the relevant provisions of the 1981 Standard formed part of the structural requirements for the car park imposed by Ordinance 70. I have already discussed the terms of the 1981 Standard and its application to the perimeter railing. It is further discussed below.

220 At this point it suffices to note that it is not clear that clause 8.2 of Ordinance 70 was engaged in respect of the construction of the railing. The determination of whether the exterior railing satisfied the loading requirements of the 1981 Standard was quintessentially an assessment for an engineer. This is confirmed by the evidence of Mr Glanville discussed below. However it is not clear whether, of itself, that meant that an application for the approval of plans and specifications "necessitate[d]" the submissions of structural engineer's drawings or other engineering details prior to the work for the purpose of clause 8.2. This is so because, unlike say footings, this was a structural component of the building that could be examined towards or after the completion of the building, and thus could be the subject of an engineering certificate that the work that was done complied with clause 30.1.

(iv) Enforcement

221 The above discussion has already touched upon some aspects of the enforcement of the various statutory obligations including s 316, s 317, 317B and the offences created by clauses 4.1 and 4.2 of Ordinance 70. Further, s 632(1) of the LGA 1919 created an offence in respect of: failing to comply with any direction given effect to by the LGA 1919 or a council authorised under the LGA 1919 to give such a direction; or doing something which was forbidden by the LGA 1919 or by a council authorised under the LGA 1919 to forbid some activity.

222 As is to be expected councils were conferred with authority to bring prosecution and proceedings to recover penalties (ss 586, 591, 615, 632(2)).

223 Further, during 1987 to 1991 the Land and Environment Court was vested with Class 4 jurisdiction in respect of proceedings under Part XI of the LGA 1919 (former s 20(1) of the Land and Environment Court Act 1979). This enabled a council to bring proceedings for an injunction to enforce any obligation imposed by Part XI or Ordinance 70 on another party such as builders or developers or those occupying or using a building contrary to a direction issued under s 316. However, during that period there were no "open standing" provisions of the kind now found in s 674 of the Local Government Act 1993 (NSW). Thus the common law principles concerning standing governed the question whether a private citizen could bring proceedings to enforce an obligation under Part XI or Ordinance 70, including an obligation imposed on a council.

(v) Inspections

224 I have already noted that s 317AD required an inspection before a council could issue a certificate under s 317AE of the LGA 1919, and that clause 3.3 of Ordinance 70 also made provision for an inspection.

225 Further, s 310 of the LGA 1919 appears to have contemplated, if not necessarily required, inspections of building work to be undertaken by the Council. In Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 435 ("Sutherland Shire") Gibbs CJ held that s 310 could not be construed as imposing a duty upon a council to make any inspection at any particular stage of the work being constructed. However, Mason J stated at 455 to 456:

"Independently of cl 83, the effect of the general scheme of regulation contained in Pt XI and the ordinances is to impose on a council a duty to satisfy itself that a building is erected in conformity with the Act and the ordinances (O'Carroll v Potter (1928) 29 SR (NSW) 393 at 398), and this necessarily extends to the matters mentioned in para (b) of s 310. The words "to the satisfaction of the council" in s 310 indicate that it is for the council in the exercise of its discretion to determine what steps it will take in order to satisfy itself that the relevant requirements have been complied with in relation to the erection of the building. But it is difficult to understand how a council could discharge its responsibility without making inspections. Indeed, the evidence demonstrates that the appellant adopted the practice of making inspections of buildings in course of erection according to a procedure the object of which was to ensure, though it may not have been achieved in this case, that the foundations were checked. We should proceed therefore on the footing that the making of an inspection or inspections of a building in course of erection was a necessary element in the performance by a council of its duty to satisfy itself of the matters already mentioned." (emphasis added)

226 The reference to clause 83 in this extract is to clause 83 of Ordinance 71, which does not appear to have been relevantly different to clause 3.3 of Ordinance 70 set out above (see Sutherland Shire at 455).

227 This passage from Sutherland Shire does not elevate the role of an inspection to an end in itself. The function of the inspection contemplated in this passage is part of the process by which, inter alia, the council forms a state of satisfaction for the purposes of s 310 of the LGA 1919, As stated by Deane J in Sutherland Shire (at 503):

"The fact that a third party is careless in not observing negligent conduct by another may mean that a failure or omission to protect, warn or rescue the person put at risk by that negligent conduct is itself careless. It does not alter the fact that the relevant operative act or omission is the failure or omission to protect, warn or rescue and not the mere failure to observe which will be relevantly operative only to the extent that it is reflected in the failure or omission to protect, warn or rescue."

228 It follows that what must be identified is the relevance of such an inspection to either an exercise of a power by a council or the non-exercise of a power. Section 317AD does not specify the scope of the inspection, although logically it would be directed to the matters in s 317AE(2). Section 317AG(3) would appear to limit the scope of what was necessarily required by such an inspection, although, as I have said, as a practical matter it appears that inspections undertaken by the Council addressed compliance with Ordinance 70.

229 In the case of an inspection under clause 3.3(2) it follows from [214] above that an adverse report following such an inspection would warrant the refusal of a classification certificate.

230 In its submissions the Council queried whether an adverse report prepared following an inspection under clause 3.3(2) (or s 317AD) should or might lead to a Council taking action under s 316. This may be so, especially given the conclusion in [201] above. It should or might also warrant other form of regulatory action to in effect require compliance with s 306 and s 310.

231 At a higher level of abstraction it can be seen that the statutory scheme provided councils with sufficient powers to inspect completed buildings and either permit or prevent their use and occupation depending on a council's satisfaction that the building complied with the Act, the Ordinances (including Ordinance 70), and the approved plans and specifications.

(vi) Parking approval: Ordinance 34B

232 Ordinance 34B concerned parking stations. Clause 9(1)(a) precluded any person from conducting or operating a parking station in the City of Sydney after 1 January 1965 unless they were licensed to do so. Clause 3(1) enabled persons to apply to conduct or operate a parking station. Such an application was required to be accompanied by a plan and particulars as to such matters at the hours of operation, the number of vehicles, the means of ingress and egress and the facilities available to vehicles while they await access to the parking station. Clause 3(2) enabled the Council to treat an application for (building) approval to erect a car park as an application for a licence to operate a car park.

233 Clause 3(4) conferred on the Council a power to grant an application. Clause 3(3)(a) obliged the Council to consult with the (then) "Traffic Authority of New South Wales. Clause 3(3)(b) obliged the Council to "take into consideration" six matters when determining such an application. Four of those matters were: the views of the Traffic Authority, the effect of the parking station on traffic movement, whether the number of vehicles proposed to be accommodated was excessive, and the adequacy of the ventilation system. The other matters were:

"(iv) whether the means of ingress and egress and means of movement provided or to be provided within the parking station [were] satisfactory;

...

(vi) any other requirement by or under this Ordinance and any requirement relating to the fitness of the premise for the purposes of a parking station."

234 Mr Cavanagh SC submitted that the determination of applications for licensing as a parking station also required consideration be given to the requirements of Ordinance 70, including the 1981 Standard. I do not agree. The "requirements" relating to the fitness of the premises are a reference to those parts of Ordinance 34B that impose such conditions. Thus, for example, clause 10(4) of Ordinance 34B required all the ramps, parking spaces and exit driveways to be surfaced with bitumen, tar, concrete or some other material approved by the Council. Clause 10(5) required the land to be used as a parking station to be fenced at a height determined by the Council and using materials approved by the Council. There was no requirement that fencing comply with the load requirements of the 1981 Standard. Ordinance 34B operates on the premise that the requirements of Ordinance 70 have already been addressed.

235 Mr Cavanagh SC also appeared to submit that the various powers conferred on the Council, including s 314, in relation to the approval of building applications required the Council to address Ordinance 34B. I doubt that is the case. They occupy different spheres of operation. Section 314 and the surrounding sections were concerned with the erection and construction of buildings. Ordinance 34B was concerned with the operation and use of an already constructed building as a car park.

(b) The railing and compliance with the 1981 Standard

236 As noted, clause 30.1 of Ordinance 70 required compliance with the 1981 Standard, including clause 3.3. The relevance of compliance with Ordinance 70 including clause 30.1 to the proper performance by the Council of its functions has just been explained.

237 Further I have already recounted the opinions of the engineers that the railing as installed did not comply with the 1981 Standard. In their joint session the three engineers were asked to expand upon this conclusion by considering the position of an engineer during the period of the car park's approval and construction:

"HIS HONOUR: We are not asking about what in fact happened, Mr Taylor, vis-a-vis council. We are asking not the position of the council, just an engineer. What would an engineer, if they were asked to look at this railing in 1986 or 97 and asked whether to certify its compliance with [the 1981 Standard], a competent, or the range of competent engineers?

WITNESS TAYLOR: I would say, as I understand the question, that the barrier appears to be incomplete. The evidence from the photographs that were taken shortly after the accident seems to indicate that the barrier was never fully completed.

CAVANAGH: Does that mean, in your opinion, no competent engineer would have certified it? And I won't repeat the whole question.

MILLER: I object.

WITNESS TAYLOR: Yes, that's right.

MILLER: I object, but I note your Honour's ruling

WITNESS TAYLOR: No competent engineer would have certified it in that condition.

CAVANAGH: Mr Alden?

WITNESS ALDEN: Yes. I think I have said previously that, looking at those photos, there are obvious deficiencies which go to the safety of the railing, and so I don't think a competent engineer could have certified that as structurally adequate.

...

WITNESS JAMIESON: Any competent engineer would be very aware of the strength and nature of crash barriers and would be very aware of the potential on the edge of a slab and would be very aware of the flimsy nature of the handrail." (emphasis added)

238 Although these answers incorporate reference to the state of the railing as depicted in the photographs, having heard that evidence I was and am satisfied that these answers were directed to assessing the impact resistance of the railing as installed. It is notable, however that these engineers were not asked to go further and state, firstly, what any structural diagrams of such a railing would necessarily have depicted, and second whether it would be evident on the face of any such drawing that the railing did not comply with the 1981 Standard.

239 As noted, the Council submitted that the 1981 Standard suggested or was capable of suggesting that the level of resistance presented by a wheel stop could be taken into account as part of the calculation of the impact resistance of the barrier in question. The Council also submitted that there was evidence that, in the past, at least some engineers, councils or developers may have interpreted the 1981 Standard in that manner. I reject all of these contentions.

240 As a matter of construction, given that clause 3.3 contemplated that the height at which vehicle impact forces would act was 450mm or above, I cannot see how the clause could be interpreted to accommodate resistance by wheel stops.

241 None of the three engineers accepted that there was any ambiguity in this aspect of the 1981 Standard. More importantly, none of them were aware of any other engineer who had interpreted clause 3.3 in the manner suggested. The curriculum vitae for each of the three engineers indicated they were all engaged in practice in the 1980s. The three engineers were cross-examined on whether they were aware of car parks constructed in the 1980's that used wheel stops as a form of load resistance. Mr Alden was not aware of any. The high point for the Council in the engineers' evidence was that Mr Jamieson recalled a car park in Bondi Junction that had only used wheel stops on some internal ramps (and not on any exterior barriers).

242 In part of its submissions dealing with s 43A of the CLA the Council pointed to the subsequent versions of the 1981 Standard which deleted the notation set out in [39] as somehow demonstrating that there were differing views as to the relevance of a wheel stop to the calculation of the load resistance of a barrier. As stated, none of the engineers accepted that there was any such ambiguity or that the subsequent revisions of the 1981 Standard which removed the notation was somehow undertaken in response to a concern that the 1981 Standard was ambiguous. There is nothing in the drafting history that the Court was taken to which supports that.

243 This part of the Council's written submissions also contended as follows:

"174. Council was plainly not the only council in NSW with mutli-storey car parks erected in the period 1971 to 1989 that (by reference to the Note to cl.3.3 of AS1170.1 - 1971 and 1981) relied on kerbs (wheel stops) to restrain vehicle loads.

175. So much is plain from the report to Coffs Harbour Council of its Castle Street car park (Ex4D-7), and the report to North Sydney Council concerning four of its car parks (EX4D-8). As the owners of those car parks (which fact is plain from each of the reports) those councils would have responsibility for both their design, and the assessment and approval of those designs."

244 The report of Coffs Harbour Council referred to in this submission was part of the agenda for the meeting of that Council on 14 February 2013. The report describes action taken in response to a planning circular issued by the Department of Planning concerning "pedestrian and vehicular safety barriers built before 1989". The report describes the undertaking of an examination of the exterior barrier of a Council owned car park, which found that one part of one of the walls did not comply with the applicable standard. Certain rectification work was proposed. The report also noted that some barriers between car park levels did not meet the relevant standard. It included a picture of a vehicle that had "over-rode the concrete wheel stops and become jammed between floors". There is nothing in this report that suggests that the various instances of non-compliance that were detected were the result of either a developer, an engineer or members of Council staff misconstruing the 1981 Standard in a manner that involved the calculation of resistance load accounting for the presence of wheel stops. The report of North Sydney Council referred to in [175] of the above extract also does not suggest that any Council officer, engineer or developer held a misapprehension to that effect either.

245 In any event, I reject the contention in [174] of the above submission that somehow Council "relied on kerbs [wheel stops] to restrict vehicular loads". The evidence demonstrates that neither any engineer or designer engaged on behalf of the developer of the car park or any engineer or officer engaged by Council who turned their mind to this issue construed clause 3.3 of the 1981 Standard in the manner suggested. The car park as ultimately constructed only used wheel stops at the rear of car spaces on the side of the car park. There were no wheel stops at the rear of the car spaces at the end of the aisles of the car park. In his report Mr Alden identified an architectural drawing from the Council's files that shows that was always intended. If the wheel stops were meant or understood to be part of the impact resistance, they would have been installed for all the car spaces.

(c) Mr Glanville's evidence of the Council's usual practice

246 Carlton tendered a statement from Steven Glanville. From 1987 until 1999 he was employed by the City of Sydney Council as a Building Surveyor. Mr Glanville did not give expert evidence as to the standard expected of a reasonable building surveyor. Instead his evidence explained the processes that were in fact employed by the Council in giving building approval during the relevant period.

247 In his statement Mr Glanville said:

"In my experience, following receipt of a Building Application, the Council would commonly issue Building Approvals on a conditional basis. This meant that at the time that the Building Approval was issued, the Council may not have reviewed all the relevant architectural and structural plans so as to be satisfied that the structure complied with the relevant Australian Standards in place at that time.

However, if a Building Approval was issued on a conditional basis, the Council's practice was to require a structural certificate of compliance from a Structural Engineer prior to certifying the building fit for occupation. The certificate of compliance would always be obtained at the cost of the builder or developer of the structure. The purpose of such a certificate was to demonstrate that the structure complied with the relevant Australian Standards at that time.

Certification that the structure complied with the relevant Australian Standards was required prior to the issue of an occupation certificate.

If a Building Surveyor had any doubt about compliance with the relevant Australian Standard of any aspect of a structure, such doubt was resolved by the requirement of a structural certificate of compliance from a Structural Engineer." (emphasis added)

248 In cross-examination Mr Glanville confirmed that in the late 1980s there was no concept of an "occupation certificate", but only a certificate of classification. Otherwise Mr Glanville's evidence as to the process by which a certificate of classification was issued was consistent with the analysis at [214] above, namely that as part of the process of issuing a certificate of classification the Council considered whether the building was erected in conformity with Ordinance 70, and the approved plans and specifications. His evidence as to the nature of the inspections undertaken was also consistent with [225] in that he described various ad hoc inspections being undertaken throughout the course of construction, with further inspections prior to the issue of a certificate of classification.

249 Further the effect of the above passage was that the Council addressed the structural compliance of the building that had been constructed against the requirements of Ordinance 70 at the inspection stage prior to the issue of a certificate of classification (and presumably the building certificate) by requiring a "structural certificate of compliance" which "would always be obtained".

250 In his written submissions, Mr Miller SC submitted as follows in relation to this aspect of Mr Glanville's evidence:

"It is important to bear in mind exactly the form of certificates that Mr Glanville explained were routinely received, and relied upon. They were not certificates that issued from an engineer to the effect that the engineer had examined the completed structure, or any aspect of the completed structure, and certified that the completed structure was in each and every respect compliant with Ordinance 70 or a particular Australian Standard. Questions posed in re-examination to the engineers by counsel for the plaintiff proceeded however on such a misstated premise."

251 This submission cited a lengthy portion of Mr Glanville's cross-examination in support which included the following passage:

"Q. Indeed, the sort of certificates that you ordinarily in your practice would see before you would certify a building or give a certificate of classification would be a certificate from an engineer that would say, firstly, that the design - if the works were carried out in accordance with a particular design, it would comply with the various applicable codes?

A. Correct.

Q. And then obviously the engineer themselves would not be standing behind every piece of work as it was done, so they would, would you agree, usually provide a certificate that said to the effect that the inspections such as they carried out did not give any suggestion that there was any departure from the requirements of the design?

A. That's my understanding.

Q. And you didn't second guess those certificates, did you?

A. No, I relied on it from a qualified expert being a structural engineer.

Q. It was the practice of the council in your experience, those around you, and from the files that you saw, that they too would not issue occupation certificates until that suite, on a complex structure, until that suite of engineering and other certifications were provided, correct?

A. Correct."

252 The passage from Mr Glanville's re-examination that the Council's submission referred to was the following:

"Q. Now, in your time at the Council, if you had been making an inspection of the kind I am asking you about for this re-examination, would you have done anything to check whether that metal railing was in compliance with the Australian Standards?

OBJECTION (MILLER)

MILLER: The question is 'in your time at the Council' so it straddles 1987 to -

HIS HONOUR: Yes, in the period 87 to 89 I will allow. It is restricted to that period.

WITNESS: A. Between 87 and 89 with my level of experience, I would have checked that with respect to compliance from an architectural viewpoint with respect to height and spacings for balustrade requirement in accordance with the ordinance 70 requirements at that point in time.

With respect to structure for loadings on them, I would have relied on the engineer's certification." (emphasis added)

253 Mr Glanville also explained that on such an inspection he would not have examined all of the metal uprights or base plates on the perimeter railings. However, he also stated that if he had noticed gaps between the base plates and the concrete or the presence of skewed anchor bolts, he would have requested the builder or developer obtain confirmation from an engineer that they were structurally sound.

254 The submission extracted above (at [250]) asserts that the question in [252] proceeded from a "misstated premise". The "misstated premise" was not specified and I do not accept that there was any. It is true that the question refers to "an inspection of this kind", but the starting point for this part of the re-examination was a question that stated "Mr Glanville, would you have made any check yourself to see whether a railing of the kind we are concerned with here complied with the Standards?", which assumes nothing contentious about the form of inspections he undertook.

255 It is true that under cross-examination by Mr Miller SC, Mr Glanville accepted the general proposition that he regularly obtained a certificate from an engineer to the effect that the "inspections such as they carried out did not give any suggestion that there was any departure from the requirements of the design". However the questions in re-examination were directed to the particular railing in this case which had to specifically comply with clause 30.1 of Ordinance 70. Further, it was a feature that when completed was not hidden in any respect, so that there would not be any restriction on an engineer examining the railing's compliance with the 1981 Standard after it was constructed.

256 In these circumstances I see no reason not to accept what Mr Glanville said in his statement, namely that it was the regular practice while he was employed by the Council for it to obtain certification from a structural engineer that the structure complied with the Australian Standards (which would encompass the structural compliance of items such as perimeter railing). Whether the wording of such a certificate would concern the building as a whole, or only part, merely the structural elements or was specifically directed to the railing is not known. However the effect of the totality of Mr Glanville's evidence is that the form of engineering certification that was obtained was such as to enable him to be satisfied that the railing complied with the 1981 Standard. In the absence of such a certificate and building inspectors not having engineering qualifications it is difficult to envisage how the Council could reach the necessary state of satisfaction under s 310 of the LGA 1919.

257 Mr Glanville was also asked about the relationship between the imposition of conditions of approval that required compliance with Ordinance 70 and the inspection phase as follows:

"Q. That was a common condition that was put on approvals, that the works were to comply with ordinance 70, correct?

A. Correct.

Q. That it was a condition, as you understood it, as the person later coming to inspect the works, that was requiring the developer to retain the necessary group of engineering disciplines so as to fully develop the design in accordance with ordinance 70, correct?

A. Correct.

Q. And then be in a position to give you the certifications upon the completion we have spoken about?

A. Yes, correct.

Q. There is no way that a builder could build a structure off, for example, building development architectural plans, correct?

A. Correct.

Q. And, indeed, when you come to even structural plans that would be submitted to a building application, you understood at the time from your experience working in building companies or construction companies that these too would have to be taken to the next level, i.e. shop drawings, before anything could be built off them?

A. Correct." (emphasis added)

258 Mr Glanville also stated that the Council might review the relevant architectural and structural plans (and any amendment thereto) that were lodged with the Council for compliance with the relevant standards. In his oral evidence Mr Glanville described this as a "spot check of the structural requirements of [the] drawing to determine compliance with the Standards in place at that point in time". He agreed with Mr Miller SC's suggestion that this was a "cursory look ... of the plans to see that there was some indication on the plans that it appeared to comply". He recalled seeing documentation that recorded the undertaking of these checks. This evidence concerning the possibility of lodging such plans, and the nature of spot checking must be considered in light of the statutory scheme outlined above, including clause 8.2. Otherwise, Mr Glanville stated that, during the course of the building's construction, Council's building surveyors would "carry out some checking of the structure in accordance with the structural plans as approved but would ultimately rely on an engineer's inspection certificate".

(d) Council records

259 As I will explain, the most critical factual dispute between the parties in respect of Ms Lee's case against the Council is whether the Court should infer from the absence, amongst the Council's response to a discovery notice, of any approved structural plans from an engineer (or otherwise) concerning the railing and any engineering certification for the railing as constructed that no such documents were ever provided to the Council between mid 1987 and 1991.

260 Regrettably the resolution of this dispute necessitates a prolonged trawl through the records that were tendered, although they need to be placed in context by reference to three matters. The first is to note that Mr Cavanagh SC tendered the Council's discovery list. Attached to the list is an affidavit from the Council's archivist testifying to the effect that, having made reasonable inquires, he believed that there are no other documents in the Council's possession falling within the categories of document specified in that list. The discovery categories exhaust the boundaries of relevance in this case.

261 Both parties sought to use the discovery list and affidavit to their advantage. Mr Cavanagh SC sought to rely on the absence of the documents that I have referred to as evidence that the documents were never received. Mr Miller SC submitted that it was self evident that some documents the Council had originally received were now missing. While not all of the documents were in the discovery list, it was implicit in the parties' submissions that all of the documents relevant to their respective submissions were tendered. I will proceed on that basis.

262 The second matter to note is that interrogatories were administered to the Council and tendered. However, other than clarifying the name and qualifications of certain persons who conducted various inspections, the interrogatories did not add anything to the documents that were tendered.

263 The third matter to note is that the Council chose not to call any witness, a matter I will return to.

(i) 1983 to early 1987: concrete barrier

264 On 22 July 1983 an application for Development Approval ("DA") for a public parking station and office complex was lodged. It was approved on 5 October 1983 subject to conditions. At that time the proposed car park consisted of a 5-storey building. The application was submitted by Tectonic Pty Ltd, but the ultimate proponent was Tai Ping Trading Pty Ltd ("Tai Ping").

265 On 25 January 1984, an Application for Building Approval ("BA") was lodged. The standard form application advised applicants of Council's requirements when submitting plans. They included the following:

"9. Two copies of detailed specification shall be submitted when the construction and materials are not fully described on the plan.

10. Where any work of a structural nature is involved (footings, walls, columns, beams, slabs, etc, sufficient details and information shall be submitted to enable a structural check to be carried out. Stress diagrams and computations for structural work may be required."

Condition 10 is consistent with clause 8.2 of Ordinance 70 (see [216] above).

266 Thereafter various changes were proposed to the DA. On 23 July 1984, development consent was granted for a replacement DA. This proposal involved the erection of a 10-storey building with a basement for use as a public car park, and for consent to restore the building known as Field House for office use.

267 Between July and October 1984, further amendments were made to the proposal for a 10-storey development. By 8 October 1984, consent had been issued for a 10-storey building with a basement for public car parking accommodating 618 cars, with additional tenant parking for 14 cars, and restoration of Field House for office use.

268 At some point in late 1984 a second or revised BA was lodged, no doubt as a result of a revision to the DA. No copy of this application was produced but its existence can be inferred from references to it in Council documents concerning its approval.

269 On 6 February 1985 Council sent a letter to Tai Ping which stated, inter alia:

"Pursuant to the provisions of Part XI of the Local Government Act, you are hereby notified that the plans numbered GA2 to GA15 submitted with your Building Application to execute the above work have been approved, subject to the conditions contained in the attached Schedule and in accordance with the details listed below, as unconditional consent would be contrary to the provisions of Ordinance No. 70.

...

Upon completion of the building work contained in this application and before any person is permitted to occupy the whole or any portion of the building, notice to the effect in writing shall be given to the Council to enable an inspection to be made to ascertain the extent of completion in accordance with the approved plans and specifications. If it is intended to occupy only a portion of an uncompleted building the notice referred to above should be accompanied by an application pursuant to Part 3.4 of Ordinance 70 to obtain such permission prior to occupation."

(Mr Glanville explained that "GA" meant general architectural drawing.)

270 The requirement to give notice referred to in this letter reflected the requirements of clauses 3.3 and 3.4 of Ordinance 70 discussed above.

271 The enclosed schedule listed 42 conditions, the first of which was "[c]ompliance with any provisions of the Act and Ordinance No 70", and the fifth of which was "[t]he submission of any structural details for consideration prior to the commencement of any structural work". As I will explain, Mr Cavanagh SC placed particular emphasis on these conditions.

272 On 17 June 1985, Everingham Platt & Anthony, Consulting Engineers, sent a letter to the Council submitting structural drawings numbered 9266/1 to 9266/58 for the approved 10-storey car park and restoration of Field House.

273 On 24 February 1986 Council wrote to Tai Ping advising that the structural drawings had been approved. The letter advised that approval was subject to, inter alia, "[c]ompliance with the provisions of the LGA 1919 and Ordinance 70. Tendered were copies of some of the plans. They contain a Council stamp stating "Approved", bearing the date "24 Feb 1986". One of these drawings bears the code 9266/31. It includes a diagram entitled "EDGE DETAILS OF CAR PARK SLAB FLRS 1 TO 7". It depicts a concrete barrier on the edge of the car park. In his report at [5.3.8] Mr Alden noted that this was referable to three of the four sides of the car park (and would include the point at which Mr Lee's accident occurred). These structural drawings involved the use of concrete barriers as the exterior barrier for the car park.

274 By letter dated 10 July 1986 Tai Pang lodged a further revised DA. The DA bore the date 14 July 1986. The application described the work involved as the "[e]rection of a revised eight storey building over ... [a] ... building under construction and alterations to an existing two storey building". This was the form of development that was ultimately undertaken. The letter refers to a number of accompanying architectural drawings, but they were not tendered.

275 On 22 September 1986 Council issued approval for that revised DA. The minute of approval recorded that the proposal involved "the erection of a revised façade to the new building".

276 In the meantime it appears that further structural drawings had been submitted. On 16 September 1986 Council wrote to Tai Ping advising that "Structural Plans numbered 9266-1F, 14" had been approved, subject to various conditions including "[c]ompliance with the provisions of the [LGA 1919] and Ordinance No 70". The letter noted that the works were to be in accordance with "submitted plans Nos GA 2-15" submitted in July 1986.

277 Tendered in evidence were a number of the Council's internal documents which referred to various structural plans as having been submitted, although the plans were not tendered. One of those notes prepared around December 1986 recorded a recommendation of approval from a checking engineer and a District Structural engineer. The note suggests the imposition of conditions, including compliance with Ordinance 70 and a condition requiring "[c]ompliance with all previous conditions of approval relating to structural engineering details".

278 On 5 March 1987, Council wrote two letters to Tai Ping. One stated that (building) approval had been given to "revised plans GA2D, GA3A, GA4, GA5A, GA6 to GA15, M506-1 & M506-2, and structural plans submitted in connection with the above", but that such approval was "subject to the conditions contained in the attached Schedule". The first condition in the Schedule was that "compliance shall be given to any provisions of the Act and Ordinance No 70".

279 Tendered with this letter were copies of structural plans GA10 to GA14 and a similar plan whose designation was blanked out but which is clearly GA15. Each of these plans bore a Council stamp stating "Approved - 5 Mar 1987" and "subject to compliance with Part XI of the Local Government Act and relevant Ordinances ...". In answer to an interrogatory Council stated that approval for GA15 was given by the Council's District Structural Engineer and the Chief Structural Engineer.

280 The other letter dated 5 March 1987 was in similar terms, but it appears to have specifically related to structural plans. The approval contained the same condition just noted and the plans also bore the same stamp. Six of the structural drawings were tendered. The first of these drawings was 9266/1J, which concerned the footings of the building. The drawing bore a note from the architects stating, inter alia, that "the structural work shown on this drawing has been designed in accordance with the current S.A.A Loading Code". The other five drawings, 9266/48A 9266/49A, 9266/50, 9266/51 and 9266/52, related to the upper part of the proposed structure. They indicated that at that stage the external barriers of the car park were proposed to be constructed of concrete.

281 On 8 April 1987 Council wrote to Tai Ping advising that it had provided (building) approval for some further structural plans subject to a number of conditions, including compliance with the Act and Ordinance 70. The listing of the revised structural plans included "48B, 49C, 51B and 53", which depict the exterior of the car park. Copies of plans 49C, 51B and 53 were tendered. They utilised structural concrete exterior perimeter barriers for the car park.

282 Curiously, it appears that Mr Alden had access to structural plan 48B. He extracts part of it and discusses it in his report, even though the parties did not tender it. It depicts a concrete barrier on the southern side of the car park. The concrete barrier is a 150mm thick and 600mm high reinforced concrete wall. It is centrally reinforced. In his report Mr Alden addressed whether the proposed barrier complied with the loading requirements in the 1981 Standard. He concluded:

"Accordingly, I consider that the upturn wall as detailed on the structural drawings could have been considered to be a satisfactory vehicle impact barrier, in terms of the requirement of [the 1981 Standard]." (emphasis added)

283 This is illustrative of the limits of reviews of structural plans, namely that they may not be definitive as to the compliance of the proposed structure with the relevant structural requirement.

284 Internal Council records indicate that in March and April 1987 inspections of the progress of building work on site were undertaken. It seems that by early May 1987 the ground and first floor were substantially complete. On 7 May 1987 Tai Ping applied under clause 3.4 of Ordinance 70 for permission to occupy those areas. By 27 May 1987 the Council had concluded that such permission should be given.

285 On 28 May 1987 s 311 of the LGA 1919 was amended in the manner outlined in [193] above.

(ii) 1987 to 1988: metal railing

286 On 16 June 1987 Tai Ping wrote to the Council again seeking amendment of its DA. This time it sought to reduce the number of floors devoted to public parking, and to add hotel floors.

287 There was tendered an undated document from the Council's files entitled "Transmittal". It is addressed to a Mr Kirch at the Council. I infer that it was sent by Tai Ping's consulting engineers, Everingham Platt & Anthony. It appears to be the late 1980s equivalent of a spreadsheet. I will not describe the document in detail. It suffices to state that it is clearly incomplete in that only pages 1 and 3 of what is said to be a five page document was tendered. The available pages list each structural drawing and appears to record when a particular version of that drawing was provided to the Council.

288 Sheet No 3 concerns structural plans for drawings 48 to 53 which concerns the external barriers for the car parks. The last entries for drawings 48 to 51 are on 28 April 1987. In its written submissions the Council accepted that the document shows that on 28 April 1987 "Structural Drawing 48B was generated (the drawing that showed the second floor concrete bottom and top reinforcement) which anticipated that there would still be structural concrete walls around the perimeter of the car park floors". Otherwise the only conclusion that can be drawn from this document is that at no time prior to 14 July 1987 was there issued any structural drawing that involved the use of metal railings as the perimeter barrier for the car park.

289 On 4 August 1987 the Council wrote to Tai Ping advising that it had approved the amendment of the DA sought in their letter of 16 June 1987. This letter made reference to "the erection of a revised façade to the new building".

290 On 11 September 1987 Tai Ping sent a letter to the Council attaching revised general architectural drawings, which included Drawings "11F, 12E, 13D, 14A and 15A". The description does not suggest they were structural drawings.

291 On 13 November 1987 Council wrote to Tai Ping advising that these plans had obtained building approval subject to various conditions, one of which was "compliance shall be given to any provisions of the Act and Ordinance No 70". Mr Glanville stated that it was his understanding that this meant that, as the developer "did their detailed engineering design and their workings, they had to comply with Ordinance 70".

292 A further condition was:

"That this approval is for an amendment to the original application and except as modified by the conditions contained herein, in no way relieves the applicant from responsibility for compliance with all previous Council approvals and conditions attached thereto."

The reference to the original application appears to be the original building application lodged on 25 January 1984 and approved on 6 February 1985 (see [269] to [271]).

293 Copies of plans GA 11F, GA 12E, GA 13D, GA 14A and GA 15A were stamped by the Council as approved on 13 November 1987. The plans are clearly architectural plans. They show railings being used as the exterior barrier of the car park. The plans bear no marks indicating they were prepared by engineers, much less any statement about compliance with the load bearing requirements in the 1981 Standard. However, one of the plans, GA 11F, refers the reader to various details in respect of the railing on another plan, being "39". Mr Glanville agreed that this was a reference to an architectural plan with more detail on it, and would have to be "reduced into more refined plans to be constructed".

294 Also on 13 November 1987 the Council wrote to Tai Ping providing building approval for certain structural plans, although none of those appear to concern the proposed external railing. The approvals again required compliance with the provisions of Ordinance 70 by the developer.

295 On 23 December 1987, Council wrote to Tai Ping to again approve an amendment of the DA. The amendment permitted the erection of a 10-storey hotel above the car park, and a new façade in accordance with certain general architectural drawings.

296 In its answer to interrogatories the Council stated that inspections were conducted on the site by various inspectors with building qualifications up to 25 November 1987, but not again until March 1989. The Council's submissions noted that the railing was likely to be built during this gap. I regard this as of little significance because, as previously stated, an assessment of the loading resistance of the railing could have been undertaken by inspecting the completed structure.

297 The Council documents reveal that it gave building approval to structural drawings in February 1988, June 1988, August 1988 and September 1988, although none appear to relate to the exterior railing. All of the approvals were subject to compliance with Ordinance No 70. Copies of these plans were not tendered, with one exception. The one exception was a structural plan that appears to have been submitted to Council on 4 August 1988, which was given approval on 26 August 1988. It bears the name of Everingham Platt & Anthony Pty Ltd and the statement of compliance with the loading code noted above (at [280]).

(iii) 1989 to 1991: inspections and certification

298 A Council file note records that an inspection of the site was undertaken by a Council officer on 9 March 1989. In its answer to the interrogatories Council stated that an inspection was undertaken by Anthony Gleeson, a District Building Surveyor, on 7 March 1989. They appear to be referring to the same inspection. He had technical but not trade qualifications. His note records that numerous finishings "remain incomplete", but the building including the car park "are structurally finished".

299 On 8 August 1989, Tai Ping lodged an application for a building certificate (ie s 317AE certificate).

300 On 16 August 1989, an inspection was undertaken by Mr Gleeson. His note of the inspection records, inter alia, that: "[a]n inspection has shown that all work contained within this proposal has been carried out in accordance with the conditions of consent as applied herein. ... For your attention re Certif[icate] of Classification". It is not clear whether this was the report referred to in clause 3.3 of Ordinance 70. It appears to be, although I note that the Council's discovery list included an item described as "Classification Report Ordinance 70 DA 288 00931", said to bear the date 18 August 1998.

301 Mr Gleeson also prepared a s 317AE Inspection Report stating that the premises were inspected "and ... found to comply with the relevant plans and Ordinance 70".

302 A s 317AE certificate was sent to Tai Ping on 12 September 1989.

303 A classification certificate under Clause 6.3 of Ordinance 70 was issued on 16 April 1991. The car park was designated as Class VII. No reason for the delay in issuing this certificate is apparent on the material.

304 As best as I can ascertain, there appears to have been some uncertainty about whether Tai Ping had been licensed to operate a car park. An application for a licence to operate a car parking station was lodged on 19 March 1990 and was subsequently granted.

305 The balance of the material tendered by the Council concerned its licensing and relicensing as a car park in accordance with Ordinance 34B. The records cease around 1997. The documents include records of inspections undertaken on 8 June 1994, 15 November 1995 and 14 May 1997. The notes of those inspections record the satisfaction of the inspector that the car park was being operated in accordance with its "conditions of approval". Generally, the conditions of approval included compliance with the development approval, as well as various conditions specific to parking such as signage, number of car spaces, and inclusion of spaces for disabled cars, etc.

(e) Which powers and functions were exercised by the Council and which were not?

306 It follows from the above that Council exercised and re-exercised the power under s 91 of the EPA Act to approve a DA on 23 July 1984 ([266]), 8 October 1984 ([267]), 22 September 1986 ([275]) and on 4 August 1987 ([289]).

307 Similarly it exercised the power under s 314(1) of the LGA 1919 to approve a BA subject to conditions on 6 February 1985 (see [269]). It exercised the power to approve plans and specifications subject to conditions on 24 February 1986 ([273]) and on 16 September 1986 ([276]). Thereafter it appeared to exercise the power under s 314(1) to approve, subject to conditions, various modifications to the building application, plans and specifications on a number of occasions including 5 March 1987 ([278], 8 April 1987 ([281]), 13 November 1987 ([291]) and the occasions noted in [297].

308 Inspections of the kind envisaged by Mason J in Sutherland Shire appear to have been conducted throughout 1987 and in early 1989. An inspection in accordance with s 317AD and most likely part 3.3 of Ordinance 70 was conducted on 16 August 1989 ([300]).

309 A certificate under s 317AE was issued on 12 September 1989 ([302]). A classification certificate was issued pursuant to clause 6.3(1) of Ordinance 70 on 16 April 1991 ([303]). A licence was issued under clause 3(4) of Ordinance 34B on 12 August 1992, although it is not clear whether that was the first licence.

310 It follows from the findings that have been made to date that it was open to the Council to issue an order under s 316 of the LGA to prohibit the use or occupation of the car park because it was not completed in accordance with the approved plans and specifications. In particular, all of the relevant approvals required compliance with Ordinance 70, yet the railing did not comply with clause 30.1. Similarly the Council could have, but did not, prosecute Tai Ping for using or occupying a building that did not comply with the approved plans and specifications contrary to clause 4.1, or erecting a building in contravention of the Ordinance pursuant to clause 4.2.

(f) Was a structural diagram or an engineer's certificate for the railing supplied to the Council?

311 The focus of Ms Lee's case concerned the change in the development during 1987 from a proposal involving the use of concrete perimeters to the use of metal railings, as disclosed in the general architectural drawings that were approved in November 1987 (see [291]). As the submissions developed it emerged that there was a sharp factual dispute about what inferences, if any, should be drawn from the absence of any approved structural plan and engineering certificate, indicating that the railing (or the building including the railing) complied with Ordinance 70, including the 1981 Standard. Neither a structural diagram for the metal railing nor a certification from an engineer of any kind was tendered. For the sake of completeness, I note that nothing in the Council's discovery list suggests that they were located by the Council's archivist.

312 In his oral submissions Mr Cavanagh SC contended in effect that it should be found that no structural drawings were provided ("and then they get the most significant change there could be and there is no structural drawings"). In relation to whether the Council received certification of the railing that was installed, in his written submissions Mr Cavanagh SC contended:

"... according to the expert evidence, any competent engineer would have detected the defects on installation and would not have given any certificate that it complied with Standard AS1170. [The Council] has not adduced any evidence that it obtained such certification and no inference can lie that it would in circumstances where the expert evidence establishes that no competent engineer would have given such certification."

313 In his written submissions Mr Miller SC contended that it was "entirely possible (indeed probable) that a complying steel barrier design was provided". I also understood his submissions to also resist the contention than Council was not provided with any formal certification of the building work. I note that both parties also disputed the significance of these findings to their respective cases, a matter to which I will return.

(i) Jones v Dunkel

314 I have already referred to the need for the Court to reach a state of "actual persuasion" of a relevant fact's occurrence (see [42]). Further, in G v H [1994] HCA 48; 181 CLR 387 at 391-392, Brennan and McHugh JJ stated:

" ... when a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party's ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response."

315 This is a restatement of the rule in Blatch v Archer [1774] Eng R 2; 98 ER 969 at 970. In this case the party that bore the burden of proof, Ms Lee, had limited capacity to adduce evidence concerning the actions of the Council in the 1980s. She nevertheless employed that capacity as best she could by administering and tendering answers to interrogatories and tendering documents.

316 The Council also tendered documents but, as noted, it chose not to call any witnesses. The Council's answers to the interrogatories identified the names of various Council officers who participated in the various decisions that I have described.

317 Mr Cavanagh SC submitted that a Jones v Dunkel ([1959] HCA 8; 101 CLR 298) inference (or inferences) should be drawn against the Council by reason of its failure to call any witness.

318 In MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416 ("MSPR") at [53], Macfarlane JA stated that a "Jones v Dunkel inference may be drawn against a party where the party would be expected to, but does not, call a witness who could give evidence on a relevant matter and that failure is unexplained" (citing Payne v Parker [1976] 1 NSWLR 191 at 201). The requirement that a missing witness would be expected to be called by one party rather than the other has been described in terms that include descriptions of it being "natural for one party to produce the witness" and the witness being "in the camp of one party, so as to make it unrealistic for the other party to call him" (Payne v Parker ibid; MSPR at [54]).

319 Mr Cavanagh SC pointed to the absence of any further evidence from the Council's archivist and the former Council employees who supervised the development and conducted the inspections of the project.

320 At least so far as the archivist is concerned, I am satisfied that they "could" give evidence on a relevant matter. It appears to me inherently likely that the archivist could be able to give an explanation as to how documents received from a development that was undertaken during the relevant period might no longer be retained by the Council. This was not addressed in the discovery affidavit that I have referred to.

321 In relation to the building inspectors and Council engineers involved in this development, due to the passage of time it is inherently unlikely that they could recall any matter concerning this development. At best they might be expected to recall some matters of general practice of the kind testified to by Mr Glanville. The Council submitted that they could not be considered to be in the "camp" of one party or another. Mr Miller SC pointed to the fact that since the answers to interrogatories were provided their identities were known to the parties, so that there was no reason why either party could not have called them. In considering that contention one should not overlook the fact that it is their conduct that is criticised and thus there may be some coincidence of interests between them and the Council. However that does not apply in respect of the matters of general procedure, which are the only matters they are likely to recall. In those circumstances I decline to draw any Jones v Dunkel inference against the Council in respect of its failure to call them. That said, I have already described Mr Glanville's evidence concerning the Council's practice in respect of the receipt of engineering certificates. I have already addressed the debate as to its effect. Beyond that, his evidence was uncontradicted. I accept it.

(ii) Balance of submissions

322 Other than relying on Jones v Dunkel, Mr Cavanagh SC made three points. The first has already been outlined, namely the absence of the documents from the Council's possession when it provided discovery. In particular he noted that there was an array of structural plans, especially those concerning the proposed concrete plan, in the period up to the modified DA that was lodged in July 1987, but there was a paucity thereafter.

323 Second, Mr Cavanagh SC pointed to the fact that when the general architectural plans were given building approval in November 1987 the letter from the Council did not specifically request the provision of structural plans (see [291]). He contrasted this with the Council's letter of 6 February 1985 which gave building approval to architectural plans but specifically requested the submission of "structural details" prior to the commencement of any structural work (see [269] to [271]).

324 Third, he pointed to the evidence of the engineers that I have outlined above, especially the evidence of Mr Taylor, with whom Mr Alden and Mr Jamieson agreed, namely that "[n]o competent engineer would have certified [the railing as compliant with the 1981 Standard] in that condition".

325 As noted, Mr Miller SC resisted these findings and sought findings to the opposite effect. He essentially made four points. First, he submitted that the documents that were tendered represented the entirety of the material currently available to the Council, yet it is self evident that there are documents missing.

326 Second, he pointed to Mr Glanville's evidence as demonstrating the inherent unlikelihood that there would be an absence of structural plans certified by an engineer as to the compliance by the railing with the loading standard, and the absence of any form of engineering certification of the work that was done. He submitted that would necessarily involve the Council's internal engineers omitting to notice any such structural plans, and the building inspectors failing to notice any such plans or certifications when they conducted their inspections.

327 Mr Miller SC developed this by submitting that some analogy may be made with the presumption of regularity, which is to the effect that where a power is exercised a presumption arises that "all conditions necessary to the exercise of that power or the doing of that act have been fulfilled" (Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164). This proposition can be rejected at the outset. The so called presumption of regularity does not take matters very far in proceedings in which the validity of an administrative decision is challenged directly. In such cases the matter falls to be resolved by reference to traditional notions of burden and standard of proof and, depending on the basis of challenge, the application of the principle stated in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. In any event this case is not concerned with the validity of any decision of the Council. The present discussion concerns the occurrence of facts in the course of making a decision and not the existence of any statutory preconditions to the exercise of a power. In this case there is no starting point of regularity or irregularity.

328 Third, Mr Miller SC submitted that there was nothing inherently unlikely in there being such certifications, given the potential ambiguity in the 1981 Standard and the concession by the engineers that a barrier constructed of a metal railing could comply with the 1981 Standard.

329 Fourth, at least to the extent that he was seeking to resist the finding sought by Mr Cavanagh SC, Mr Miller SC pointed to the passage of time as productive of uncertainty, making it that much more difficult to make a finding that something did not occur 27 years later.

(iii) Resolution

330 In relation to both of Mr Cavanagh and Mr Miller's first points, I have already described the available evidence as to the completeness of the Council's records. In my view it is clear that the Council's records such as the document noted in [287] are self evidently incomplete. There are internal documents that record the existence of structural or architectural plans, but the plans do not appear to have been retained by the Council.

331 Mr Cavanagh's second point does not of itself advance his contention as to the absence of a structural diagram for the railing. It is true that the initial building approval of the general architectural diagrams given in February 1985 ([269]) was accompanied by a specific condition requiring the submission of structural plans before building work commenced, whereas the building approval given in November 1987 to revised architectural plans did not ([291]). However by November 1987 the situation had changed. As at February 1985 no structural diagrams had been provided and hence no work could be undertaken. As at November 1987 work had been undertaken and a number of structural diagrams had been provided, some of which had not been superseded by the modification to the development. Further, the condition precluding the undertaking of building work pending the provision of structural diagrams was carried over into the building approval given in 1987 by the condition noted in [292] above. Finally, as the above history demonstrates, a number of structural plans were provided after November 1987.

332 In relation to both of their third points, I have made the relevant findings concerning the 1981 Standard and the state of mind of Tai Ping and the Council engineer above (at [245]). At this point it is necessary to distinguish between whether a structural plan was provided to the Council in advance of the construction of the perimeter, and whether Council was provided with some form of certification concerning the railings with the 1981 Standard.

333 In relation to the former, the evidence of the engineers was not so emphatic that it could be concluded that any set of structural plans that depicted that form of railing would necessarily have revealed that the railing was non-compliant. Further, they accepted that a metal railing might be compliant with the 1981 Standard. Mr Alden's analysis of one of the structural diagrams which proposed the use of a concrete barrier (see [282]) demonstrates that sometimes it cannot be definitively determined on the face of the plans whether the loading requirements will be satisfied if the proposed structure is built.

334 Thus, with structural diagrams of the railings, I am left with an absence of a Council record of receipt of a structural plan certified by an engineer, and an unlikelihood that an engineer would prepare a structural diagram depicting the dimensions of the perimeter railing that was installed. However, as noted, given the limits on such structural plans it was not necessarily the case that such plans would have depicted a non-compliant barrier. Further, I have to consider that part of Mr Glanville's evidence that suggested it was not possible to build a perimeter railing simply on the basis of the plans depicted in the general architectural plans that were approved in November 1997 (see [257]). There is in my view a degree of unlikelihood of a developer seeking to build from structural plans that had not been sent to the Council. In the end, even applying Jones v Dunkel, I am left "unpersuaded" that structural plans of some kind were not provided to the Council in advance of the construction of the perimeter railing. Equally, without the application of Jones v Dunkel, I am not positively persuaded that such plans were provided.

335 One matter should be noted about this absence of a finding that any structural plans were provided. A critical matter that has left the matter not proved is the possibility, not excluded by the engineers' evidence, that such plans may have been prepared at such a level of generality that they could pass a "spot check" or review by the Council's engineers as to compliance with Ordinance 70, ie it may not have been apparent on the face of any such plans that the railing did not comply. If such a circumstance transpired, then it is to be expected that the Council would have made any approval of such plans "subject to compliance with Ordinance 70". The result is that any such plans would provide an insufficient basis for the Council to reach the state of satisfaction required under s 310. This directs attention to the next question of whether engineering certification was provided.

336 I am persuaded that no certificate from an engineer certifying or indicating the compliance by the installed railing with the 1981 Standard was provided to the Council at any time, including during or around the time of the inspections, and especially those that occurred in August 1989. No such certificate appears to have been discovered by the Council. The notes of the inspections did not refer to any Council officer receiving any such certificate. Most significantly, the engineers' evidence was emphatic that no reasonable engineer could have certified the compliance of the railing with the 1981 Standard. While the existence of unreasonable engineers can obviously be countenanced, the combination of such an engineer and a Council that receives but then loses such important documentation while retaining others, strikes me as very unlikely. Mr Glanville's evidence emphasised the importance of obtaining such a certificate. The evidence only emphasised the necessity to document receipt of such certification in the inspection notes and then retain the certificates. The combination of these matters is more than sufficient to ground the inference that no such certificate was provided and I draw it without relying on any Jones v Dunkel inference. However, I derive further confidence in drawing this inference having regard to the Council's failure to call its archivist.

(g) The Plaintiff's pleaded case

337 As issue was taken concerning the scope of the case pleaded against the Council, it is necessary to describe it. Paragraph 42 of the ASOC recites that the Council was charged with various statutory powers in relation to the car park under the LGA 1919 including under Ordinance 70, specifically Part 30 and Ordinance 34B including clause 3(3)(vi).

338 Paragraph 43A pleaded that the "design and construction" of the car park was "defective and/or negligent" in various respects, including that the perimeter fence was "inadequate and/or of insufficient strength", "[t]he construction of the steel barrier fence and wheel stops did not comply with the loading requirements of the" 1981 Standard, and a number of other particulars to similar effect.

339 Both the particulars to this paragraph and the particulars of negligence refer to various aspects of the design and installation of the railing as rendering it "defective". In relation to the installation of the railing I have only accepted that at the time of installation there were two anchor bolts improperly affixed, an inadequately welded base plate, and an unfixed end of the wheel stop in the car space the subject of Mr Lee's accident. Of themselves I do not accept that they render the perimeter railing "defective". However, I also accept that the railing was affixed close to the edge of the car park at the time of installation. That, combined with its other features such as the size of its railings, rendered it significantly non-compliant with the 1981 Standard. It was in that respect "defective".

340 Paragraph 48B pleaded that the Council issued a "building approval or like authority" permitting the construction of the car park according to the allegedly defective design. Paragraphs 48C and 49A then pleaded:

"48C Upon completion of construction of the car park the Fourth Defendant inspected the construction work and issued an occupation certificate or like authority permitting the car park to be used by members of the public for the purpose of car parking in circumstances where the design and construction of the car park was defective and/or negligent.

...

49A. In the exercise of its power relating to the approval of the development application, inspection of the works during their construction and authorising the use of the premises as a car park open to the public, the Fourth Defendant owed users of the car park a duty of car recognised by the law of negligence to exercise reasonable care for their personal safety extending to the risk of mental harm."

341 Paragraph 50 then pleaded that the Council breached its duty of care "during the approval and construction in 1986/1987 and thereafter until completion of the development". The particulars of negligence are as follows:

"a. It failed or failed to adequately inspect the car park upon its completion and before opening to the public to ensure it was fit for its intended use and safe;

b. It failed or failed to adequately inspect the car park upon its completion and before opening to the public to ensure it was compliant with AS 1170.1 1981;

c. It failed to take into consideration in its exercise of powers under Ordinance 34B the compliance or otherwise of the parking station with AS 1170.1 1981;

d. It failed to exercise powers under section 279 of the Local Government Act, 1919 to inspect the car par[k] upon its completion and before opening to the public to ensure it was fit for its intended use and safe;

e. It failed to exercise its powers under section 279 of the Local Government Act, 1919 to inspect the car park upon its completion and before opening to the public to check it was compliant with the conditions of its grant of the First Defendant's development application;

f. ...

g. It licensed and permitted the First Defendant to operate a car park with wheel stops not secured by mortar which was of sufficient strength, adequate characteristics and sufficient depth and secured by dowels which were deficient for the purpose to be served by the wheel stop;

h. It licensed and permitted the First Defendant to operate a car park without concrete underpinning on the wheel stop (grouting up) and/or adequate filling grout in the dowel holes;

i. It licensed and permitted the First Defendant to operate a car park with a steel barrier fence which did not comply with AS 1170.1 1981;

j. It licensed and permitted the First Defendant to operate a car park with a steel barrier fence which was secured on the concrete edge of the car park with Ramset Dynabolts fixed too close to the outside edge of the concrete;

k. ...

l. It licensed and permitted the First Defendant to operate a car park with a steel barrier fence which had inadequate horizontal rails;

m. It failed to require the replacement or strengthening of the steel barrier fence;

n. ...

o. ...

p. ...

q. With knowledge of the anticipated use of the car park by persons driving vehicles of varying sizes, heights and torque, failing to consider the adequacy and safety of the wheel stop and steel barrier fence situated in the car park;

r. It licensed and permitted the First Defendant to operate a car park with steel barrier fences affixed to a concrete slab which had no longitudinal slab edge reinforcement.

s. Further or in the alternative, permitting a change from the solid reinforced concrete barrier fence originally designed and specified to the steel barrier fence as built with exercising reasonable care that the steel barrier fence complied with AS 1170.1 1981."

342 Mr Miller SC submitted that paragraph 49A restricts the plaintiff to mounting a case concerning "development applications and [Council's] inspection processes" and do not extend to its assessment of any building applications. I do not agree. Although it is unfortunate that s 49A does not incorporate any reference to the issue of building approvals, I consider that a fair reading of the pleading, especially paragraphs 42 and 48B and particularly 50(s), reveals that the process of issuing building approvals was part of the plaintiff's pleaded case.

343 However not much turns upon this. As noted, I will address the particulars of negligence as pleaded in paragraph 50 and not any possible expansion on those particulars that was made orally. With one exception the particulars of negligence are directed to the inspections undertaken towards the completion of the building's construction, and the actions of the Council in "licensing and permitting the use" of the premises as a car park. The statutory and other bases for the inspections has already been outlined, and the existence of a duty of care in respect of them was clearly pleaded in paragraph 49A. The actions of the Council in "licensing and permitting" the use of the premises are directed towards the issue of a classification certificate, a s 317AE certificate, and a licence to operate a car park, and not taking action under s 316 to prohibit the use and occupation of the car park. As part of the attack on those decisions I accept that Ms Lee may be entitled to make complaint about aspects of the process of issuing building approvals that led to those decisions.

344 The one exception concerns particular (s) which appears to be directed to the building approval granted under s 314 to the general architectural plans that contained a railing in November 1987. I address this below.

(h) Duty of care: Negligent exercise of powers

345 The next issue that arises is whether any duty of care was owed by the Council in respect of the granting of development approvals, the conduct of inspections, the granting of building approvals, and the authorising of the use of premises as a car park. The first three of these sets of powers were clearly exercised so to that extent Ms Lee's complaint clearly concerns a negligent exercise of power.

346 In relation to the fourth, I have just noted that actions of "licensing and permitting" the use of the premises are directed towards the actions of the Council in issuing a classification certificate, issuing a s 317AE certificate, issuing a licence to operate a car park, and not taking action under s 316 to prohibit the use and occupation of the car park.

347 At first blush this would appear to involve a mixed allegation of misfeasance and non-feasance, with the latter requiring a consideration of the issues addressed in Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 ("Stuart") and Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1. However, in circumstances where a regulatory authority embarks upon a process of applying a statutory scheme of regulation, the common law does not generally separate specific instances of the exercise of a power and a failure to exercise a related or connected power into categories of misfeasance and non-feasance. Instead it will be treated as a case of misfeasance.

348 Thus, Stuart involved an allegation of non-feasance on the part of two police officers for their alleged negligent failure to apprehend and detain a person suffering from mental illness who later committed suicide. At [117] of Stuart, Gummow, Hayne and Heydon JJ characterised that case as an alleged failure to exercise a power. Their Honours distinguished it from Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 ("Pyrenees Shire Council"). In Pyrenees Shire Council the Council was aware from an inspection of a particular danger posed by a fireplace, and notified the owners of the danger but failed to take action to require its rectification or advise new owners of the problem. In Stuart at [117] Gummow, Hayne and Heydon JJ explained that Pyrenees Shire Council was not a case of non-feasance because "a public authority had entered upon the exercise of its statutory powers with respect to a particular subject-matter (fire prevention)" and thus the "authority was held to have owed a duty to take reasonable care in exercising those powers". In Stuart at [135] Crennan and Kiefel JJ distinguished Pyrenees Shire Council on the same basis.

349 The position was explained by Gummow J in Pyrenees Shire Council at [177]:

"The general rule is that 'when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered [citing Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202 at 220 ("Caledonian Collieries")]. A public authority which enters upon the exercise of statutory powers with respect to a particular subject matter may place itself in a relationship to others which imports a common law duty to take care which is to be discharged by the continuation or additional exercise of those powers. An absence of further exercise of the interconnected statutory powers may be difficult to separate from the exercise which has already occurred and that exercise may then be said to have been performed negligently. These present cases are of that kind. They illustrate the broader proposition that, whatever its further scope, Lord Atkin's formulation in Donoghue v Stevenson includes 'an omission in the course of positive conduct ... which results in the overall course of conduct being the cause of injury or damage'." (emphasis added)

350 Thus in this case the actions of the Council in issuing a classification certificate and licensing the car park under Ordinance 34B are not to be considered separately from its alleged failure to act under s 316 for the purposes of characterising the case as one of misfeasance or non-feasance.

351 Was a duty of care owed in respect of the exercise of the powers and functions noted in [345]? Mr Miller SC submitted that Caledonian Collieries is not authority for the proposition that, without more, the mere existence of a foreseeable loss of any kind from the exercise of a statutory power is sufficient to give rise to a duty of care. He contended that instead I was bound to consider the "salient features" of the case to determine whether a duty was imposed.

352 I agree, although the first inquiry for this Court at first instance is to ascertain whether there is any authority establishing the existence of such a duty in the relevant circumstances and, if so, its scope and content (Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; 171 LGERA 165 at [17] per Hodgson JA ("Makawe"). Surprisingly, none of the parties' searches was able to uncover any authority concerning whether a council owed a member of the public who suffered physical harm (such as Mr Lee) or mental harm (such as Ms Lee) a duty to exercise reasonable care in relation to the power to approve DAs, BAs, conduct inspections and issue classification certificates or license car parks. As that inquiry has not yielded any answer, I am bound to address the matter in the manner stated by Hodgson JA in Makawe at [17] as follows:

"[17] In my opinion, the approach to be taken in determining whether a duty of care exists, in circumstances where there is no authority establishing the existence of a duty of care, and if so its scope or content, is usefully summarised by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 at [102]-[105] [("Stavar")] as follows:

[102] This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

[103] These salient features include:

(a) the foreseeability of harm;

(b) the nature of the harm alleged;

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e) the degree of reliance by the plaintiff upon the defendant;

(f) any assumption of responsibility by the defendant;

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i) the nature of the activity undertaken by the defendant;

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l) any potential indeterminacy of liability;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;

(o) the existence of conflicting duties arising from other principles of law or statute;

(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

[104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.

[105] The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562] at 579 [49]. The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment."

353 To this it should be noted that earlier in Stavar at [99] Allsop P discussed the role of foreseeability in the context of determining the existence of a duty of care. It suffices to note that in Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317 at [11], Gleeson CJ stated that "[a] necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed". This elevates foreseeability above it merely being a "salient feature".

354 I have already identified the form of harm suffered, namely physical harm to Mr Lee and psychological harm to Ms Lee. Ms Lee has overcome all the relevant thresholds concerning that form of harm. It was not submitted that there was any basis for further distinguishing between the harm she suffered and that suffered by her husband as far as the Council is concerned.

355 One discrete form of statutory power exercised in this case was the power to grant development approval. I have described the criteria involved in the exercise of that power above. It was not suggested that any aspect of the statutory scheme involves any consideration being given to the personal safety of users or occupants of buildings the subject of the proposed development. In my view it was not reasonably foreseeable that a failure to exercise reasonable care in granting development approval could result in physical or psychiatric injury to a user or occupant of any building constructed as a consequence. It follows that the Council did not owe either Mr Lee or Ms Lee or other potential users of the car park a duty to exercise reasonable care in granting development approval under s 91 of the EPA Act.

356 The other statutory powers in question were those concerning the granting of building approval, inspection and the various powers to enable the occupation and use of the building that I have described above. Leaving aside the power to license the premises as a car park, I am satisfied that the Council owed users and potential users of the car park a duty of care in exercising those functions and powers. In my view it was reasonably foreseeable that physical harm may have been occasioned if these powers were not reasonably exercised. The entire point of the provisions is to provide buildings that are reasonably safe for occupants and users. Similarly, the imposition of a duty is not inconsistent with the terms, policy or scope of the statute (factors (o) and (p)). The Council was armed with sufficient powers to exercise the requisite degree of control to avoid the harm (factor (c)).

357 Further, and perhaps critically, to the knowledge of the Council, users of the building were clearly vulnerable in the requisite sense to harm from the Council's conduct (factor (d)) and were otherwise highly reliant on the Council to perform its functions (in the sense discussed in Sutherland Shire at [464] per Mason J; see Makawe at [26] per Hodgson JA). Persons seeking casual parking in the centre of Sydney are not in any position to make an assessment of the structural safety of such premises, or the attitude to safety of their owners much less their original developers. Instead, they rely on (owners and) the relevant authorities such as the Council to perform their functions to at least provide a reasonable degree of comfort that such buildings are reasonably safe for occupation and use.

358 Section 42 of the CLA provides:

"42 Principles concerning resources, responsibilities etc of public or other authorities

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate."

359 Nothing in s 42 detracts from the conclusion that the Council owed occupants and users of the building a duty of care in relation to the exercise of its power over building regulation. No suggestion of inadequate resourcing was raised by the Council. A finding that a duty of care was owed does not of itself raise any challenge to the general allocation of resources by the Council.

360 While the position is not as clear, I consider the same result follows in respect of the power to license the operation of the car park. The various factors relevant to the exercise of that power extend to some considerations of public safety, such as access and egress (see [232] ff]). The matters I have just noted in relation to building approvals and inspections apply at least in respect of such of the safety matters that must be addressed before issuing a licence, such as accessing, egressing and the surfacing of a car park.

(i) Rejected particulars of negligence

361 In view of the approach taken to the pleadings I will address Ms Lee's case against the Council by reference to the particulars of negligence extracted above. In light of the findings that I have made, a number of those particulars can be dealt with relatively briefly.

362 Particular (c) in [50] of the ASOC alleges negligence in the exercise of the power conferred by subclause 3(3) of Ordinance 34B, namely a failure to take into account whether the car park "was compliant with" the 1981 Standard. I have found that the Council owed users and occupants a duty to exercise reasonable care in relation to the performance of that function (at [360]). However I have also found that the exercise of the power to grant a licence to operate a car park under clause 3(3) did not involve the Council addressing its compliance with Ordinance 70, including the 1981 Standard (see [234]). It follows that I reject this particular as it would involve the Council having regard to a matter outside the ambit of the power. It also follows that I reject so much of the other particulars that involve a complaint about the exercise of that power as they have the same vice.

363 Particulars (d) and (e) allege that the Council failed to exercise powers under former s 279 of the LGA 1919 to inspect the car park. I reject these particulars for two reasons. First, the Council did inspect the car park. The adequacy of the inspection is subject to challenge by other particulars. Second, former s 279 of the LGA 1919 is irrelevant. It conferred on the Council the power to do "all things necessary from time to time for the promotion and preservation of public health, safety and convenience". Section 279 was found within Part X of the LGA which concerned "Public Health, Safety and Convenience" and addressed such matters as sanitation (s 281), rubbish disposal (s 282), disinfection (s 286) and fencing swimming pools (s 288C). However, this case was concerned with Part XI of the LGA, namely building regulation, which conferred a number of separate powers upon the Council. While s 279 may not have been confined to the subject matter of Part X, it was not a free-standing power enabling the Council to do what it wished for the promotion or prescription of public convenience (Paul Dainty Corporation Pty Ltd v Sydney City Council [1983] 2 NSWLR 147, 150), much less was it a basis for supplementing the powers conferred by or under Part XI of the LGA 1919.

364 Particulars (g) and (h) concern the state of the wheel stops at the time the building was approved and constructed. These particulars were not addressed in oral submissions. In any event, the only finding I have made as to the state of the wheel stops at that time was that one of the dowels on the wheel stop in the car space where Mr Lee's accident occurred was not installed. I am not satisfied that means that there was any failure of reasonable care in relation to any inspection conducted by the Council, or in the exercise or non-exercise of any relevant power that resulted from so much of the inspection as concerned the wheel stops.

365 As noted, particular (s) complains about the conduct of the Council in permitting a change from the concrete barrier to a metal barrier. This appears to refer to the building approval given in November 1987 to the general architectural plans (see [291]). For the reasons already noted, I accept it is open on the pleadings for Ms Lee to attack the issue of building approvals. However, I do not accept that approval involved a failure to exercise reasonable care. The engineers accepted that a metal railing could comply with the 1981 Standard. There was no means of establishing that the railing depicted in the general architectural drawing definitively did not comply. The Council's approval was subject to compliance with Ordinance 70 which meant that this issue was still to be addressed. This particular is not made out.

(j) Upheld particulars of negligence

366 The balance of the particulars reflect at least part of the case that Mr Cavanagh SC outlined in his oral submissions, namely the inspection of the building work on the premises ((a) and (b)), the licensing and permitting of its operation as a car park ((i), (j), (l) and (r)) and a concomitant failure to require the strengthening of the external barrier ((m)). Three matters should be noted about those particulars. First, for the reasons already outlined, to the extent that those particulars refer to the Council having to "ensure" something, they are pitched too high (ie (a), (b)) (see [135]). I will treat them as only referring to the need to exercise reasonable care. Similarly, the matter simply cannot be approached on the basis that, because the perimeter railing did not comply with the 1981 Standard, a finding of negligence must follow.

367 Second, as previously stated, the reference to licensing and permitting the use of the car park is to be taken as a reference to issuing a classification certificate, issuing a s 317AE certificate, issuing a licence under clause 3(3) of Ordinance 34B, and not taking regulatory action such as exercising the power conferred by s 316 of the LGA 1919. To the extent that these particulars involve a complaint about the exercise of the power conferred by clause 3(3) of Ordinance 34B, I have already rejected it.

368 Third, as previously noted, an assessment of whether the Council was negligent in failing to take some particular step must be undertaken prospectively (see [148]).

369 I have referred above to the competing factual contentions in respect of the submission of structural plans and engineering certificates. In his written submissions Mr Miller SC also pointed to the fact that there was no pleaded allegation of a breach for failing to require these documents, or proceeding to issue a classification certificate in their absence. That is so, but it is beside the point. The significance of those documents is that they may have provided a basis upon which the Council could have concluded that the relevant requirements of Ordinance 70 were satisfied as was required by s 310.

370 In this case the relevant inspections of the building were conducted in 1989. A building inspector can be taken to be aware or should have been aware that the 1981 Standard was applicable to the railing. It is true that I did not positively find that any structural plans for the railing were not provided, but that was only because I accepted that the nature of such a plan was such that it might not have been able to be determined from the plans that the railing was non-compliant. Even if the Council had in its possession structural plans relating to the railings, those plans could have been only approved subject to compliance with Ordinance 70. It follows from my earlier findings and the engineers' evidence that any such structural plans could not have provided a proper basis for the Council to be satisfied that the railing, as constructed, complied with clause 30.1 of Ordinance 70. In the absence of an engineering certificate of some kind, there was no other material upon which to base that conclusion. It appears to be common ground that the inspectors did not have engineering qualifications. However, even if they did, then it follows from the engineers' evidence that any conclusion they reached about the railing's compliance was unreasonable.

371 The fact that a building did not in some respect or respects comply with Ordinance 70 does not, of itself, demonstrate negligence on the part of the Council. Further, there maybe some circumstances in which a failure to have material demonstrating compliance with a structural requirement is a mere oversight and not indicative of negligence. However, the history of the development was such that change in the façade of the building warranted scrutiny as to the ability of the proposed railing to withstand the required loads. The metal railing was the external barrier for a significant portion of the car park. It was a significant safety feature for the car park. What is the point of such a barrier in a high rise car park if it is not to provide some resistance to impacts from vehicles that were travelling at low speed?

372 Although the submissions did not refer to ss 5B and 5C of the CLA, much less the risk of harm, I am required to address those provisions. I cannot see any reason why the "risk of harm" is any different for the case against the Council as it is for the case against Carlton, namely the risk of physical injury including death, or property damage from a vehicle colliding or coming into contact with an inadequate perimeter railing (see [145]). For the reasons previously noted, in my view the relevant risk was both foreseeable and not insignificant (s 5B(1)(a), (b)).

373 Particulars (a) and (b) allege that the Council failed to conduct an "adequate" inspection. Presumably the relevant "precaution" for the purposes of s 5B(1) is the conduct of an inspection of sufficient adequacy to enable the Council to be reasonably satisfied that the car park, including the railing, was compliant with Ordinance 70, including clause 3.3 of the 1981 Standard. In this context "inspection" includes making inquiries of the developer and its advisers about the existence of appropriate certifications. For the reasons already explained, I am satisfied that the Council did not take that step. Other than the unexcluded possibility that some structural plans which did not definitively disclose non-compliance were provided, the Council did not have any material before it to demonstrate that the railing complied with the 1981 Standard. No such material, including an engineer's certificate, was provided during the inspection or at any other time.

374 Would a reasonable local council have taken that step (s 5B(1)(c))? In my view it would have. There was a probability of harm eventuating if reasonable steps were not taken by the Council to satisfy itself that the perimeter railing complied with the 1981 Standard (5B(2)(a)). The entire point of such a railing on a high rise car park is to prevent minor accidents involving vehicles on upper levels becoming catastrophic ones. Council could not eliminate the risk of that occurring, and primary responsibility for building an adequate barrier rested with the developer. Nevertheless, that risk could have been significantly mitigated by appropriate checking by the Council.

375 Further, I do not consider that the burden imposed on the Council of doing so would be too onerous (s 5(2)(c)). The effect of Mr Glanville's evidence is that the requirement of engineering certificates was standard practice. As noted, perhaps not every single structural feature of a complete car park would require certification by an engineer or similar substantiating evidence. However this was a significant safety feature and it had been changed during the life of the project, and engineering certificates covering it were required.

376 In my view, the Council's inspections at the point after the railing was completed were negligent because in the circumstances the Council was required to consider whether it was satisfied that the perimeter railing complied with the 1981 Standard. There was nothing provided to the Council to enable it to be so satisfied, and it could not reasonably reach that opinion on a visual inspection either.

377 The next step is to consider the exercise and non-exercise of powers consequential on the finding as to negligence in the "inspection" of the car park on its completion. They can either be addressed as precautions in their own right as contemplated by the balance of the particulars, or on the basis that, but for the negligent inspection, the relevant defect would have been acted upon or the exercise of reasonable care would have required it to be acted upon (see Roads and Traffic Authority v McGregor [2005] NSWCA 388 at [68] to [69]). The result is the same on either approach.

378 It follows from my findings that the outcome of an adequate inspection should have been that the Council was left unsatisfied as to the car park's compliance with Ordinance 70. Thus the building would not have been compliant with s 310 (Sutherland Shire at 471 per Mason J). At that point the only sensible "precaution" the Council could have undertaken would have been not to issue a classification certificate (and based on Mr Glanville's evidence it can be expected that it would not have done so). Similarly, notwithstanding the terms of s 317AG(3), it could not reasonably have issued a s 317AE certificate and, based on Mr Glanville's evidence, would not have done so. Further, if the developer threatened to occupy or use those parts of the building that were relevantly affected while the perimeter fencing remained non-compliant, the only sensible precaution that it can be expected to have taken was to prohibit that use or occupation under s 316(1). Again it can be expected that the Council would have in fact done that. In my view the outcome is that the car park would simply not have been able to operate unless barriers that complied with the 1981 Standard were erected.

379 Accordingly, I uphold each particular of negligence (a), (b), (i), (j), (l), (m), (q) and (r) to the extent that they contend that the inspections of the car park, and in particular the perimeter railing of the car park, prior to it commencing occupation as a car park were inadequate and that the Council issued a classification certificate, a building certificate and otherwise failed to take action under s 316 as a consequence of concluding that the car park had been constructed in accordance with the approved plans and specifications and Ordinance 70.

(k) Causation

380 I have described the operation of s 5D of the CLA above. I am satisfied that, but for the Council's breach of duty, a perimeter railing constructed in accordance with the 1981 Standard would have been installed on the car park prior to it commencing operation. In particular, it can be expected that if Tai Ping was refused a classification certificate and a safety certificate, then it would have taken action to rectify the railing without the necessity for Council to take the further step of, say, issuing a direction under s 316. It clearly had invested a large sum in the redevelopment of the site and I doubt it would have jeopardised obtaining a return by embarking on a stand-off with the Council over the load compliance of the perimeter fencing.

381 A proper perimeter railing may have deteriorated between the time of installation and Mr Lee's accident. However, there is nothing to suggest that by 2006 it would have ceased to offer sufficient load resistance to prevent Mr Lee's car falling off the edge. Although the Council does not bear any responsibility for the faulty wheel stop, the deficiency in the perimeter railing was an independent cause of the loss being sued for. Subsection 5D(1)(a) is established. There was nothing raised that would warrant restricting the scope of liability to exclude liability in respect of Mr Lee's death under s 5D(1)(b).

(l) Section 42

382 In its defence the Council pleaded reliance on s 42. In his written submissions (at [166] ff) Mr Miller SC clarified that it was only relied on to the extent that it was asserted that the Council had a duty to "ensure" a particular outcome. I have already rejected that aspect of Ms Lee's case.

(m) Section 43

383 The Council also pleaded reliance on s 43. However it was accepted that s 43 only concerns actions for breach of statutory duty. Ms Lee did not bring such an action.

(n) Section 43A

384 The Council also relied on s 43A of the CLA, which provides:

"43A Proceedings against public or other authorities for the exercise of special statutory powers

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A special statutory power is a power:

(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44."

385 In this case, although I have found that the Council was negligent in the inspections it conducted of the building upon its completion, there is no doubt that the suggested liability of the Council is at least based on the exercise of a statutory power for two reasons. The first is that the inspection(s) had a statutory source (see [224]). Second, by reason of those negligent inspections, I have found that the power to issue a classification certificate and a building certificate were negligently exercised (as well as finding they would not have been exercised had the inspections been "adequate"). Whether the liability is "based on" the exercise of the power conferred by s 316 is addressed below.

386 The second set of statutory powers I have just referred to were clearly special statutory powers as defined in s 43A(2) (Curtis v Harden Shire Council [2014] NSWCA 314 at [248] per Basten JA). I will assume that the statutory function of inspections also satisfies s 43A(2). The test posed by s 43A(3) requires the Court to "look at the matter having regard to what the authority in question could properly consider a reasonable exercise of power" (Curtis at [6] per Bathurst CJ, and at [224] per Beazley JA and [278] per Basten JA). Otherwise, in Warren Shire Council v Kuehne [2012] NSWCA 81; 188 LGERA 362 at [117] ("Kuehne") Whealy JA stated that the "unreasonableness must be at a high level".

387 In my view s 43A has been satisfied in relation to this matter. Even allowing for the possibility that there might have been some structural plans submitted to the Council concerning the perimeter railing, I consider that no council possessing the functions and powers of the Council in this case could have properly concluded that the building conformed with Ordinance 70. As previously noted, if any such structural plans described the railing in detail, then a spot check would have revealed the railing did not comply with the 1981 Standard. Otherwise there was simply no material upon which the Council could properly have reached the state of satisfaction referred to in s 310 of the LGA 1919, at least so far as the perimeter railing is concerned. It is true that the railing was only one component of the overall project. Like an assessment of negligence, s 43A is directed to the relevant decisions all of which concern the building as a whole. However the perimeter railing was a significant safety feature for the general public in the form of users of the car park. This all arose in a context where the Council had approved general architectural drawings changing the façade of the building and where detailed structural drawings of the previous façade had been supplied. This was a significant project involving the construction of a large car park in the middle of a large and busy city. The physical safety of users and occupants of the building (and nearby users) was paramount. It was seriously neglected.

388 As previously noted, the Council's written submission in relation to s 43A referred, inter alia, to the alleged ambiguity in the 1981 Standard arising from the notation as a matter justifying the approval of the railing. For the reasons already canvassed, I do not consider that any Council acting reasonably could construe the 1981 Standard in that manner. Further, in light of the matters noted at [245], even if there was any such ambiguity, it is irrelevant in this case.

(o) Section 44

389 The Council also relied on s 44 of the CLA. It provides:

"44 When public or other authority not liable for failure to exercise regulatory functions

(1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff.

(2) Without limiting what constitutes a function to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function to regulate the activity."

390 Section 41 defines "exercise a function" as including to "perform a duty", and "function" as including "a power, authority or duty".

391 The origins of s 44 appear to be something of a mystery. Chapter 10 of the Review of the Law of Negligence (the "Ipp Report") (Law of Negligence Review Panel, Parliament of Australia, Review of the Law of Negligence Final Report (September 2002) 151-163) recommends various principles as the basis for law reform, including four concerning the liability of public authorities. None of them remotely resembled s 44. Instead s 44 in its enacted form first appeared as s 46 in the "Consultation Draft" of the Civil Liability Amendment (Personal Responsibility) Bill 2002 that was released on 3 September 2002. The notes accompanying that draft simply stated:

"(f) ... (iii) a public or other authority that has functions to prohibit or regulate an activity will not be liable in connection with a failure to exercise the function or to consider exercising the function unless the authority could have been compelled to exercise the function."

392 The Consultation Draft led to the tabling of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (No 92 of 2002) which introduced the second wave of reforms which commenced with the passage of the CLA on 20 March 2002. Section 46 was reproduced as s 44 of that Bill. It passed through both houses unamended. Both the Premier's second reading speech to the House of Assembly and the Treasurer's second reading speech to the Legislative Council stated as follows in relation to s 44:

"An authority that has not exercised a regulatory power - such as a power to close a fishery - will also not be liable unless it could have been compelled by a court to exercise that power."

393 The explanatory note to the Bill made the same statement in relation to this provision as the notes accompanying the Consultation Draft extracted above.

394 Section 44 has been referred to in a number of cases, but it appears to have so far successfully evaded interpretation and application (see for example Makawe and Kuehne).

395 Three issues appear to be raised by s 44. The first is to determine "the extent [that a public or other authority's] liability is based on the failure of the authority to exercise or to consider exercising any function ... to prohibit or regulate an activity". The second is whether the relevant authority could have been required to exercise the function. The third is whether it could have been required to exercise the function "in proceedings instituted by the plaintiff".

396 In relation to the first issue, it seems clear that s 44 is meant to encompass a true non-feasance case at common law. However, what about a case in which part of the complaint concerns the failure to exercise an "interconnected statutory power [from one which] has already occurred" (Pyrenees Shire Council at [177] per Gummow J)? The Council's written submissions carefully parsed the various particulars of negligence in an endeavour to isolate those which involved an assertion that the Council had not exercised a particular power as opposed to having negligently exercised a power. Most of them are no longer relevant, but so much of the case as concerned the non-exercise of the power conferred by s 316 of LGA 1919 remains.

397 This issue was touched upon in Makawe where the judge at first instance found that s 44 had no application in circumstances where the Council had exercised a power to grant a development approval because that meant it had embarked upon an exercise of the relevant "function" (at [189] per Simpson J). On appeal it was argued that the relevant failure was to impose conditions on the development approval and that complaint engaged s 44 even if the power to grant approval had been exercised (at [190]). In the end result, the Court of Appeal did not consider this issue as it was not necessary for the resolution of the appeal (at [191]).

398 As I have explained, even though one aspect of the conduct of the Council in licensing or permitting the use of the premises as a car park was the Council's failure to prohibit the use or occupation of the car park under s 316, this is not a non-feasance case. The Council embarked upon a detailed consideration of the exercise of its statutory powers by undertaking inspections, as well as issuing a classification certificate and a s 317AE certificate. In these circumstances what would it add to conclude that the Council is not liable to the extent that it did not consider exercising the power conferred by s 316, if it was liable for exercising the power to issue, inter alia, a classification certificate? In light of the finding at [380], the answer is none because I accept that Tai Ping would not have operated or continued to operate the car park in the absence of a classification certificate and without addressing concerns raised by the Council about the loading resistance of the perimeter railing. This is sufficient to support the conclusion that s 44 is not engaged.

399 More generally I suspect, but need not decide, that the correct position is that any case that is truly characterised as a misfeasance case at common law is not one that engages s 44. Such a case will be properly characterised as one "based on" the relevant power or act that was negligently performed. The fact that, had it not been performed in a negligent manner, it would or perhaps even should have resulted in the exercise of a further power will not necessarily mean that the case was "based on" the failure to exercise that power.

400 In light of this conclusion, it is not necessary to resolve the second and third issues noted in [395] above, but I will briefly comment. In his book, Annotated Civil Liability Act 2002 (NSW), Mr Villa states that s 44 reflects the passage from the judgment of Brennan CJ in Pyrenees Shire Council at [24] to [28] (Dominic Villa, Annotated Civil Liability Act 2002 (NSW) (Thomson Reuters, 2nd Ed, 2013) at [5.44.030]). Presumably the basis for this assertion is that that judgment is the only judicial discussion in this country that invokes public law principles in this context. For present purposes, two matters should be noted about Brennan CJ's judgment in Pyrenees Shire Council. The first is that his Honour observed that, notwithstanding that only a discretionary power may be conferred, circumstances may be such that the public authority can be compelled to exercise it (at [23]). His Honour found that Pyrenees Shire Council was under such a duty in that case (at [28]). The findings I have made warrant that conclusion in relation to s 316 in this case. Second, Brennan CJ repeatedly described the type of powers that were so amenable as those which were directed towards protecting the person or property of a distinct class of people, as opposed to a power which is "to be exercised for the benefit of the public generally" (at [26]). His Honour considered that any person who was within that class had, inter alia, "locus standi to seek a public law remedy" (at [25]).

401 I have already noted that during the period 1987 to 1991 there was no open standing regime for the LGA 1919. However, if the judgment of Brennan CJ in Pyrenees Shire Council was dispositive of the second and third issues that arise under s 44(1), then Ms Lee would still succeed. Section 316 is clearly a power conferred on the Council for the protection of persons "of a class of individuals" of which both Mr Lee and Ms Lee were clearly members, namely users and occupants of the building.

402 However the drafting of s 44(1) complicates matters. It refers to the "plaintiff" which, in a different context to this case, could represent a difficulty for a claimant under the Compensation to Relatives Act 1897 in that, while the deceased might have had standing, their relative might not. Further the drafting appears to create a temporal problem in a case such as this in that, at the time that action by the Council was required, neither Mr nor Mrs Lee was an occupier or user of the car park and, at the time they were occupiers and users, the statutory regime had changed completely, as had the standing requirements. The proper application of s 44(1) may require the adoption of a hypothesis that the relevant accident occurred at the time the relevant duty was required to be exercised. However in light of the conclusion in [398], it is not necessary to consider this further

(7) Carlton's cross-claim against the Council

403 Carlton cross-claimed against the Council on two bases. The first was for contribution or indemnity pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the "contribution statute"). I will address this basis shortly. The second was for indemnity on the basis that the Council was liable to Carlton for breaching a duty of care owed to it directly as a subsequent purchaser of the building. It is not clear whether this claim was pleaded in Carlton's cross-claim. It is surprising that no point was taken in respect of this. Had it been clearly pleaded, I expect it would have been met with a claim for contributory negligence. Also, this aspect of the cross-claim seeks recovery for pure economic loss, being a claim for indemnity from a liability (and not based on a direct duty owed to Mr and Mrs Lee). Thus it is an "apportionable claim" under Part 4 of the CLA. In the ordinary course a defence to a claim for indemnity based on a breach of a duty owed to Carlton would plead both matters. The determination of such a defence would, in this case, result in an outcome no more favourable to Carlton than the application of the contribution statute.

404 It is not necessary to address this further because I do not accept that the Council owed Carlton a duty of care. It was not submitted that the decision in Sutherland Shire meant that a duty was owed. I have already referred to the multifactorial analysis described by Allsop P in Stavar (see [352]). The nature of the harm has already been identified (factor (b)). The fact that the relevant loss is only economic harm tells against there being a duty of care. Further, there was no evidence that Carlton placed any form of general reliance on the proper performance of its functions under the legislative regime of control contained in Pt XI of the LGA 1919 (Sutherland Shire at 471 per Mason J; Stavar at [103]; factor (c)). Critically, Carlton was not vulnerable in the relevant sense (factor (d)). It was always open to Carlton to make its own investigation of the car park for compliance with the relevant standards prior to acquiring the building as well as after. This case does not concern a structural aspect of the building that is hidden or hard to access. Also Carlton had the capacity to seek an indemnity from the previous owner or a commensurate reduction in the purchase price to allow for rectification work (Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515). Otherwise there was a lack of proximity between the Council and Carlton (factor (g)). The Council did not assume any responsibility towards subsequent owners ((f) and (h)).

405 Generally, while Carlton's lack of vulnerability is not determinative of the question whether it was owed a duty of care, when that factor is combined with the other features that I have identified, in my view it follows that no duty of care was owed.

406 I return to Carlton's claim for contribution or indemnity. Subsection 5(2) of the contribution statute requires that the assessment reflect what is "just and equitable". In Baden Cranes Pty Ltd v Smith; Brambles Australia Ltd v Smith [2013] NSWCA 136 at [77] Basten JA stated that as between tortfeasors, "the degree of responsibility of each will depend upon the relationship (in a broad sense) between the tortfeasors" and "upon the relationship of the tortfeasors as between each other". It will also depend on the degree of departure from the relevant standard by each. In this case the degree of departure by each was egregious. However I consider that Carlton should bear the bulk of responsibility for the accident. It was conducting a commercial car park for profit, and Mr Lee and Ms Lee were taking up its invitation to use its services. The accident was in part caused by the poor state of the wheel stop in respect of which the Council does not bear any legal responsibility. Neither Carlton or its predecessor has much cause for complaint about the Council not taking steps to make the building safer. The Council was not its adviser.

407 In light of these matters, I consider that as between Carlton and the Council, Carlton should bear responsibility for 75% of the damages recoverable by Ms Lee, and the Council should bear responsibility for 25%.

(8) Damages for nervous shock

408 I have already noted that it was not in issue that, as a result of the accident and death of her husband, Ms Lee suffered and suffers a "recognised psychiatric illness" such that s 31 of the CLA does not represent a barrier to her recovering damages for nervous shock. Otherwise it should be noted that the Council adopted Carlton's submissions on damages.

409 At the hearing it was agreed that the Court would make the necessary findings to enable damages to be calculated. Accordingly, after publication the parties should calculate the damages to be awarded. If any supplementary findings are required then application can then be made.

410 Ms Lee was born in October 1972. She was raised in Singapore. In 1994 she graduated from the National University of Singapore with a Bachelor of Science degree majoring in biology. She worked for four years as a special education teacher in Singapore. She then came to Australia to study speech therapy. Ms Lee met her husband in Singapore in February 1998. He was seven months older than her. At that time he was pursuing his career in publishing (see below). They were married on 1 January 2000 when they were both 27 years old. Just prior to Mr Lee's death, they bought a new house. They never had the opportunity to move in.

411 Ms Lee stated that she and her husband learned that, due to a medical condition affecting her husband, they could not have children. Ms Lee stated that, around the time of his death, she and her husband "were thinking of adopting ... [and] had started to fill in forms, so it was at a really early stage". Ms Lee now accepts that she will never have children.

412 The possibility that, but for his death, Ms Lee and her husband might have adopted children raises a difficult issue in respect of the assessment of damages in her claim for nervous shock and her claim under the Compensation to Relatives Act 1897. Ms Lee and her husband appeared well positioned to be selected to adopt a child. Further, Ms Lee is an experienced speech therapist. Since the accident she has worked principally on a contract basis for referral services. This work offers the flexibility that would have allowed her to absorb some interruption upon adopting a child and then continue working at a reduced level so as to allow her to spend time with a child. Nevertheless, it is to be expected that if she and her late husband had adopted one or more children, then her earnings would have been affected.

413 Logically it would follow that the fact that, had her husband lived, he and Ms Lee might have adopted a child would be dealt with as a contingency warranting some reduction in the assessment of Ms Lee's economic loss in her nervous shock claim. However, applying this reasoning should also lead to a partial offset to that reduction in the form of an increase in the amount of damages that Ms Lee recovers under the Compensation to Relatives Act 1897. This is so because, absent authority, that reduction would be expected to be ameliorated by an increase in the percentage of her husband's income that Ms Lee could reasonably have expected to have benefited from had he not died to account for the contingency that while she was caring for an adopted child her own income was reduced. In that circumstance she would be more financially reliant on her husband than if she was working full time.

414 The difficulty is that I am precluded by authority from adopting this approach with Ms Lee's claim under the Compensation to Relatives Act 1897. In Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 ("Halvorsen") the Court of Appeal held that damages under the Compensation to Relatives Act 1897 should not be assessed on the basis that, but for the deceased's death, the "dependent widow" and the deceased would have had children thereby justifying an increase in the widow's expectation of pecuniary benefits from their late partner (at 14D-E per Clarke JA with whom Meagher and Handley JJA agreed). Clarke JA stated (id):

"Once however it transpired that she would never had borne the deceased's child then, as it seems to me, the court should have acted on the basis that that was a certain fact and assessed the damages without regard to the chance that increased dependency would result from her giving up work to have children."

415 Halvorsen was criticised by Professor Luntz in Assessment of Damages for Personal Injury and Death as being "illogical" because it confuses the position but for the deceased's death, in which it was not a "certain fact" that the "widow" would not have borne or raised children, with the position in light of the deceased's death in which it is (Harold Luntz, Assessment of Damages for Personal Injury and Death (Butterworths, 4th ed, 2002) [9.2.10]). Nevertheless I am bound by Halvorsen. The dilemma is what is to be done with Ms Lee's own claim for future economic loss for nervous shock. It seems to me that I must apply the reasoning in Halvorsen to it as well, and treat the fact that Ms Lee will not adopt children as a "certain fact".

(a) Ms Lee's condition after the accident

416 Mr Lee's funeral was held on 10 March 2006. Ms Lee spoke at the funeral. She described the occasion as a "bit of a blur".

417 Ms Lee did not move into the house that she and her husband purchased. Instead it was leased and she lived with her second cousin, Lena Chee. Ms Chee observed Ms Lee to be withdrawn and easily upset during this period. After three months Ms Lee moved in with some friends. She lived with them for nine months. In her oral evidence Ms Lee said that at this time she felt like killing herself. As I will explain, she attempted to return to full time work soon after her husband's death, but found she could not cope and reduced her hours.

418 In February 2007 Ms Lee moved into the home she had bought with her husband. Some family friends moved in with her. She still had suicidal thoughts in this period. She saw a counsellor from March 2006 to November 2007. The counsellor described Ms Lee as "suicidal".

419 Ms Lee stated that in 2008 she began to experience a sensation of pain, mainly in her arms and legs. She went to see her father in Singapore. Her father is a specialist neurologist. After speaking to her father, she returned to Australia and sought treatment. She saw her general practitioner, who prescribed anti-depressant medication. This was unsuccessful. She was referred to a psychiatrist, Dr Cassidy. She has seen Dr Cassidy regularly since that time.

420 In her second statement, Ms Lee said that a friend who she met through her church moved in with her in 2009, and that friend's daughter joined them in 2010. They left in early 2012. While they lived with Ms Lee they assisted in cleaning the house. The friend recalled Ms Lee having a poor memory and forgetting to do basic household tasks such as picking up a plate or turning on the dishwasher. Both the friend and her daughter recalled Ms Lee having "no energy" and not socialising. In July 2012 Ms Lee's niece started boarding with Ms Lee.

421 In her first statement, Ms Lee described the effect on her functioning as at February 2010, including feelings of depression and anxiety as well as suicidal thoughts. She said that she no longer enjoyed watching television, reading newspapers or recreational activities such as bushwalking. Ms Lee said that she previously had an "active social life" but after the accident she said she found socialising very tiring. She felt it caused "sensory overload". She said she had difficulty falling asleep but when she did she slept for long periods. She had constant nightmares about her husband. In that statement Ms Lee described her future in bleak terms. She said that she felt as though her future had been taken away from her. She also stated that she felt too old to have children and that thought "scares and depresses me".

422 In October 2012 Ms Lee was involved in a minor car accident. She said that the accident brought back "horrific memories" of the scene she witnessed in 2006. She said that she could not sleep for days or stop crying. After the accident Ms Lee drove to a secluded spot and seriously contemplated suicide. I will not traverse the details of that occasion. It suffices to state that the intervention of her bible study leader was a significant factor in dissuading her from taking her own life. On 31 October 2012 Ms Lee was referred to a psychiatric clinic at Kellyville. She stayed for three weeks.

423 In her second statement, Ms Lee updated her condition as at July 2013. She said she still avoids television and newspapers because they contain tragic stories. She still struggles with social occasions, but said she found attending church "a little easier" and sees her friends "about once a fortnight". She still has nightmares related to her husband's death, one of which was that he had been murdered and another that she was saving her niece who was hanging from a ledge. She said that she frequently "wakes up screaming from nightmares" and still suffers from anxiety attacks, although she feels that her medication has made her "more stable during the day". However she did state that she felt a "little better about [her] future". She has reconciled to never having children but still grieves for what she no longer has.

424 In her oral evidence Ms Lee stated that she took five forms of medication addressing her depressed mood, pain, anxiety and sleep deprivation. In April 2013 Dr Cassidy became alarmed at the quantity of medicine she was consuming and reduced her intake.

425 Ms Lee has continued to see Dr Cassidy since she first consulted him in 2010. She also sees a psychologist from the clinic she attended in November 2012.

426 Finally in her evidence before me, Ms Lee stated that she generally "feels like [she's] functioning at half strength" and she still has pain in her arms and legs. She accepted that she could drive and attended meetings for a charity. She believes her wellbeing will improve when these proceedings are concluded.

427 I accept Ms Lee's description of her own condition and well-being from time to time.

(b) Medical evidence

428 Tendered on behalf of Ms Lee was a report from a consultant rheumatologist, Dr Jim Bertouch. Dr Bertouch noted that from the end of 2009 Ms Lee has been complaining of non-specific musculoskeletal aches and pains. This has included "an aching sensation over the inner aspect of her arms and the outer aspect of her legs", as well as a "burning sensation and a sensation of hot water being on her skin" as well as a "sensation of her muscles contracting, or pins and needless". Dr Bertouch concluded that she had "typical features of fibromyalgia and neuropathic pain" which was an "integral part of her post-traumatic stress disorder".

429 As noted, Ms Lee consulted Sunny Hong, a psychotherapist, from May 2009 until about September 2010 for grief counselling. In her report dated 30 November 2009 Ms Hong's description of Ms Lee's emotional state and function is consistent with what I have already discussed. She described Ms Lee as overwhelmed by grief, easily and regularly fatigued both physically and emotionally, socially withdrawn and generally physically inactive. She considered that Ms Lee's prognosis was that "full recovery will be slow" but Ms Hong at least "hoped" that the resolution of the proceedings may assist in her recovery.

430 Also tendered was a report from a consultant psychiatrist, Dr Jonathan Phillips, dated 18 November 2009. Dr Phillips saw Ms Lee on 24 June 2009. Dr Phillips explained that grief "can be broken into three stages with potential overlap between them". He described the first stage as "shock/ disbelief", which was "usually concluded within minutes/hours". He described the "second and sentinel stage of grief" as "pining" which was usually concluded "within 6 months". Dr Phillips described the third stage of grief as "restoration of a normal pattern of life, with this stage generally concluded within 2 years".

431 Dr Phillips considered that most of Ms Lee's psychological symptoms during the first year following her husband's death as being "within the depression spectrum" but he stated that they "cannot be considered to be pathological in type because they were experienced within the time frame for normal grief". However Dr Phillips stated that Ms Lee's symptoms have continued beyond that period, including persistent flashbacks, social withdrawal together with "lability of mood and uncharacteristic anger". Dr Phillips considered that Ms Lee had become "arrested in the second stage of grief" and that "there was little evidence that she had successfully concluded the third stage of grief".

432 Dr Phillips diagnosed Ms Lee as having suffered from an adjustment disorder with depressed mood. He considered that, absent treatment, her condition would worsen but with treatment there should be a significant reduction in symptoms. Dr Phillips considered that Ms Lee was "unlikely to hold a full time productive position in the open workforce until she has made a proper recovery from her psychological problems".

433 As noted Dr Cassidy, psychiatrist, has been treating Ms Lee since September 2010. He provided a report dated 22 February 2011 and another dated 28 October 2013.

434 In his first report, Dr Cassidy noted that Ms Lee's anxiety had become "prominent" and "problematic" over the years. He said she had regular panic attacks and "prominent flashbacks", which included regularly reliving the "symptoms, feelings and smells" associated with her husband's accident. Dr Cassidy diagnosed her as suffering from chronic post-traumatic stress disorder ("PTSD") and extended grief. The latter diagnosis is consistent with that of Dr Phillips. In relation to the former, Dr Cassidy was puzzled why that diagnosis had not been made earlier given the nature of the incident she witnessed and the consistent recording of her suffering from flashbacks and other symptoms associated with the disorder.

435 Dr Cassidy stated that he was treating her with anti-depressant medication which to that time "she [had] not a complete response to" and considered he would augment if necessary. He recommended that she continue to receive grief counselling, but that given the "chronicity of her symptoms any course of treatment is likely to require a sustained involvement by a number of therapists". Dr Cassidy considered that Ms Lee's condition had dramatically impacted on her ability to work, perform domestic duties and her general quality of life. He described her as "barely subsisting" at that time. Dr Cassidy was guarded about Ms Lee's prognosis. He considered that that she would have "long term symptoms and disability related to these conditions". He only stated that he "hoped" they could be improved by "adequate treatment".

436 In his second report, Dr Cassidy noted her recent admission to a psychiatric institution (see [422]). He also described the reasonably extensive regime of anti-depressant medication that had been prescribed for Ms Lee. Despite this, he stated that she had responded "only partially" and at no time had she been symptom free. He maintained his diagnosis of PTSD and extreme grief. His prognosis was more bleak than his first report. He stated that Ms Lee "presents as chronically disabled as a result of her symptoms and given the length of time and the lack of response to a whole range of treatments, it is unlikely that she will make a full recovery".

437 Carlton tendered three reports from Dr Akkerman dated 30 June 2009, 16 September 2010 and 14 May 2013 respectively.

438 In his first report Dr Akkerman diagnosed Ms Lee as suffering from major depression. He considered that she was "probably recovered by about fifty per cent" and was to that extent fit for work. He did not consider that she required domestic assistance.

439 In his second report Dr Akkerman restated his diagnosis of major depression. He said that her fitness for work had deteriorated from his previous report, and that she could "now only work about 20 hours per week". He considered that whether she would work to retirement depended "on her response to treatment". He agreed with the assessment of an occupational therapist, Marie Lucas, that Ms Lee needed 4 to 6 hours per week assistance, ongoing psychiatric treatment and anti-depressant medication.

440 Dr Akkerman's third report of 14 May 2013 was not different, other than in respect of two matters. First, Dr Akkerman stated that Ms Lee was no longer in need of domestic assistance "from a psychiatric point of view". He said that she received that assistance because of "fibromyalgia". Second, Dr Akkerman addressed her prospects of recovery. He considered her condition was "very chronic", that it was likely that she would continue to be unwell for another two to three years but fully improve in the longer term.

441 There was also tendered a note prepared by Dr Akkerman dated 5 December 2013 recording his account of a telephone conversation with Dr Cassidy which appears to have been an aborted attempt to conduct a joint conclave. He records they both agreed that Ms Lee's condition was "chronic and long lasting". They appear to have strongly disagreed as to whether there were any prospects of further treatment assisting Ms Lee. Dr Cassidy considered that all treatment options were exhausted, whereas Dr Akkerman considered that some treatment options might still be effective.

442 Dr Cassidy gave oral evidence re-stating his gloomy assessment of Ms Lee's prospects of recovery. He pointed to the length of time that she had suffered symptoms and the range of treatment options that had been largely unsuccessful, being a range of anti-depressant medication, grief counselling, cognitive behaviour therapy and full time attention following her admission to a psychiatric clinic. Otherwise Dr Cassidy reiterated his opinion as to her ongoing need for domestic assistance.

443 Carlton also tendered a number of reports from a clinical psychologist, Rachel Guthrie, who saw Ms Lee between 2010 and 2013. They do not add or detract from the above summary.

444 I found the reasoning underlying Dr Cassidy's assessment persuasive and I accept it. He has treated Ms Lee for over five years. During that period her psychiatric health has not improved. In my view, her suicide attempt in late 2012 and subsequent institutionalisation are of particular significance. They occurred over six years after her husband's death and despite Ms Lee having received considerable personal and medical support in the meantime, including the use of anti-depressant medication. The suicide attempt does not appear to be in any way related to any stress or anxiety from this litigation.

445 I accept Mr Cavanagh SC's submission that Ms Lee's condition is likely to be "long term and disabling" and she is not likely to work to any greater capacity that she currently does (see below). Carlton did not substantially dispute that assessment, but pointed to the possibility of her successfully responding to treatment as pointed to by Dr Akkerman, and that which might flow from the resolution of these proceedings. The possibility of recovery over time and after this litigation cannot be excluded, but in view of her recent history I consider it unlikely.

(c) Nervous shock claim: Non-economic loss

446 Refreshingly, the respective Counsel adopted a realistic approach to the determination of the appropriate percentage of a most extreme case for the purposes of s 16(3) of the CLA.

447 In his written submissions Mr Cavanagh SC submitted that Ms Lee's damages for non-economic loss should be assessed as 50% of a most extreme case. He referred to Ms Lee's condition being permanent, affecting her on a daily basis, and restricting her ability to work and engage in ordinary activities. He submitted that she required the use of extensive medication and ongoing treatment. Carlton's written submissions suggested that the appropriate allowance was 40% of a most extreme case. They pointed to the possibility of a recovery over time.

448 Each of the parties referred the Court to another decision of this Court concerning damages for non-economic loss (s 17A(1) and (2)). Mr Cavanagh SC referred the Court to the judgment of Adamson J in Ryan v A F Concrete Pumping Pty Ltd [2013] NSWSC 113 ("Ryan"). In Ryan the plaintiff suffered a traumatic brain injury as well as injuries to his face and head, teeth and shoulder. He recovered from the shoulder injury. He suffered PTSD; however that resolved (at [105]). He also suffered from some subtle but profound brain damage as outlined by her Honour as follows (at [130]):

"The plaintiff has largely recovered from his physical injuries. Although his face bears some scars, his appearance is substantially unimpaired. He can converse and express himself in an apparently coherent way. However, having seen him in the witness box over a number of days (which was necessary because of the breaks which I am satisfied he needed to take to refresh himself), I consider him to be significantly impoverished as a result of his injuries and that he has lost almost everything of importance to him. This loss is all the greater because he has not been deprived of insight into the effect of the change in him on his wife, his children, his family, his friends and his former colleagues."

449 The plaintiff in Ryan was found to have suffered non-economic loss equivalent to 65% of a most extreme case.

450 In its submissions, Carlton referred the Court to the judgment of Adamson J in Rasmussen v South Western Sydney Local Health District [2013] NSWSC 656 ("Rasmussen"). In Rasmussen, Adamson J awarded general damages corresponding to 40% of a most extreme case to the mother of a new born boy (her first child) who died at the age of four days as a result of the hospital negligence (at [59]). The plaintiff was 31 years of age at trial. She suffered from an anxiety disorder with a pathological grief condition. Her Honour noted that there were "several prognostications which demonstrate the plaintiff's capacity to function and which augur well for the future" (at [56]), but found she remained vulnerable to stressors (at [57]).

451 I found Rasmussen of more assistance than Ryan. However Ms Lee's condition is worse than the undoubtedly poor position of the plaintiff in Rasmussen. Ms Lee has suffered an almost complete and definitely ongoing psychiatric collapse from which her prospects of recovery are bleak. I assess her non-economic loss as 50% of a most extreme case (CLA, s 16).

(d) Nervous shock claim: Economic loss

452 Consistent with the evidence noted above, the parties approached an assessment of Ms Lee's economic loss on the basis that, generally since her husband's death, Ms Lee has only been able to physically work about half a full time load for a speech pathologist. However, there was a sharp disagreement concerning the methodology to adopt in respect of her economic loss on and from 1 July 2008.

(i) Ms Lee's career pre and post accident

453 I have described Ms Lee's educational background up to 2000 in [410] above. In 2002 Ms Lee was awarded a Bachelor of Applied Science (Speech Therapy) from the University of Sydney. She received a post-graduate diploma in Special Education from the Nanyang Technological University, Singapore, in 2003.

454 At the time of her husband's death, Ms Lee was working as an employed speech pathologist for "Learning Links". A large proportion of her clients were autistic. Ms Lee was well qualified to assist those clients because of her experience from working in special education.

455 Ms Lee said that after the accident she returned to work four days a week. However, by approximately 1 January 2007 she had reduced her working hours to five days a fortnight.

456 At the end of 2008 Ms Lee set up her own business, "Alpha Nova". By this time she was receiving referrals from a private school and was being paid a contract rate of $70 per half hour. In her oral evidence she stated that she wished to reduce hours but earn more by working on a contract basis. Nevertheless Ms Lee continued to be employed by Learning Links part time until 2011. She utilised Alpha Nova to perform direct referral work on a contract basis.

457 On 1 June 2009 Ms Lee entered into a referral agreement with "Autism Central". Autism Central is a service provider for autistic children. The principal of Autism Central is Ylana Bloom. Ms Bloom's evidence is summarised below.

458 Ms Lee explained that while she was working for Learning Links she was paid an "average of 30, 31" dollars per hour. After she finished with Learning Links in 2011, Ms Lee undertook part time employment with Pathways Early Childhood Intervention Service ("Pathways"). Pathways is a not for profit agency for children with disabilities. Ms Lee worked two days a week and was paid an hourly rate of around $37.90. Ms Lee said that she usually sees three to five patients per week while working for Pathways.

459 Thus, since her husband's accident, Ms Lee has moved from full time paid employment to a mixture of paid employment and direct consultancy work. There is a significant difference in the amounts she receives for each type of work. Ms Lee said that she accepted the differential amounts because she liked the security of some paid employment especially given her health problems. Otherwise I note that in her oral evidence Ms Lee stated that she intended to work to normal retirement age. That evidence was not challenged. I accept it.

(ii) Taxation records

460 Ms Lee's taxation returns for the financial years 2004 to 2012 were tendered. They were not referred to in submissions by either party, even though they contain material arguably relevant to the resolution of the competing contentions. In light of that, I have approached them with caution although I have had regard to them in evaluating an assertion made on behalf of Ms Lee as to the level of expenses she incurred in undertaking contract work.

461 Generally Ms Lee's returns for the 2008 financial year onwards reflect that she commenced receiving a combination of wages and contract income from that time, the fact that there is greater scope for tax deductions in the case of contract income, and the disruption to her working life from her husband's death.

462 Thus, for financial years 2004, 2005, 2006 and 2007 her gross income from Learning Links was $19,775.00, $24,198.00, $26,157.00 and $19,162.00.00 respectively. Her income after deductions but before tax was $19,518.00, $23,434.00, $22,441.00 and $16,351.00 respectively.

463 From 2008 Ms Lee's taxation returns included separate profit and loss statements for Alpha Nova. Thus for 2008 Alpha Nova received contract income of $6,036.00 and incurred expenses of $6,758.03, yielding a loss overall. For 2009 Alpha Nova received contract income of $28,138.50 and incurred expenses of $13,065.46, of which $4,721.52 were fuel and maintenance costs for a motor vehicle. For 2010 Alpha Nova received $31,350.36 in contract income and incurred $20,778.92 in expenses. The expenses included an amount in excess of $5,000.00 for fuel and car registration, and almost $6,000 in depreciation of a motor vehicle and office equipment. In 2011 Alpha Nova received $39,805.00 in contract income and incurred $27,707.52 in expenses. Almost $10,000.00 of the expenses was depreciation. In 2012 Alpha Nova received $27,751.50 in gross contract income and incurred $26,224.49 in expenses, of which just over $7,000.00 was depreciation.

464 Otherwise Ms Lee's taxation returns record that in 2008, 2009, 2010 and 2012 she received wages of $20,355.00, $13,682.00, $11,001.00, and $19,447.00 respectively. She did not receive any wages in 2011. Her returns showed receipts of $17,651.00 and $8,375.00 income from Fairfield City Council for financial years 2009 and 2010 respectively. This income source was not explained by the evidence.

465 In the end result Ms Lee's taxable income for the financial years 2004 to 2012 was $19,518, $23,434, $22,441.00, $16,351.00, $19,838.00, $44,552.00, $15,043.00, $19,982.00 and $30,634.00 respectively.

(iii) Autism Central

466 Ms Bloom is a director of Autism Central. She explained that Autism Central was founded in 2008 to provide a multidisciplinary therapy service for people of all ages who have autism and associated disorders. It was established in response to a government program that provided funding for children with a range of disabilities including autism. Autism Central successfully applied to join a panel of service providers. In so doing it was able to access a funding package of $12,000.00 allocated to each child.

467 Ms Bloom explained that, if a new client presents to Autism Central requiring speech and occupational therapy, she will offer that client to the therapists they have retained and, if it is taken up, they will accept the client. Autism Central charges the client (or the relevant funder) and the therapist will invoice Autism Central. Autism Central retains a small margin. Ms Bloom stated that Autism Central currently charged its clients $176 per hour for Ms Lee's services and that Ms Lee, via Alpha Nova, charged Autism Central $140 per hour.

468 Ms Bloom described Ms Lee as an exceptionally talented speech therapist. In her oral evidence Ms Bloom emphasised Ms Lee's qualifications in both speech therapy and special education for children, as well as her command of Mandarin.

469 However Ms Bloom also described the difficulties she had experienced in providing Ms Lee with more work. She said that Ms Lee was at times disorganised, unable to focus on conversations for any length of time, forgetful and appeared "tired and blank" when dealing with some patients. For these reasons she said that Ms Lee's workload for Autism Central had been restricted to approximately six hours a week. She said that when Ms Lee was admitted to hospital in October 2013 Autism Central cancelled all of her appointments.

470 Ms Bloom was emphatic that, absent these difficulties, there would be a substantial amount of client work for Ms Lee and that it could fully engage her at 80% of a full time load. (It is necessary for Ms Lee to earn 20% of her income elsewhere to retain her taxation status as a contractor.) Ms Bloom said that there had been an "explosion of diagnosis of autism in the last five years" and that there were "not enough therapists to cater for all these children". Ms Bloom also described a number of other tasks that Ms Lee could undertake if she was fit to work full time, including running social groups, family training, writing training manuals and preparing resources for Autism Central.

471 Ms Bloom said that Autism Central could provide Ms Lee with sufficient work to result in her performing 25 one hour sessions a week. She calculated that would yield Ms Lee a gross contract income of in excess of $161,000.00 per year. In cross-examination it was suggested to Ms Bloom that that figure was just below the total amount spent on all contractors by Autism Central in the financial year ended 2013. Ms Bloom effectively stated that figure was inaccurate because she did not charge for her own services. Otherwise Ms Bloom was adamant that the level of demand existed, but Autism Central was simply unable to satisfy it.

(iv) Jane Purcell

472 Ms Jane Purcell works as a speech pathologist at a private preparatory school and for Pathways. She knew Ms Lee before the accident and has worked with her since.

473 Consistent with Ms Lee's evidence, Ms Purcell said that Ms Lee undertook work for the school in 2008, but approached her to undertake it when the work became "too much" for Ms Lee to manage. Other than ceasing work on maternity leave, Ms Purcell has worked at the school ever since. She said that she is paid by the parents of the children and she returns 10% to the school for the use of its facilities.

474 Due to her family commitments Ms Purcell said that she only works one day a week at the school. However another speech pathologist works full time at the school and there is still an unmet demand. Ms Purcell stated that she receives an average of a $1,000 gross per day. Otherwise Ms Purcell stated that she cannot cope with the demand for her services, especially in light of the increasing diagnoses of disorders in the autism spectrum, and the greater availability of government funding. Ms Purcell emphasised that there was a strong demand for multilingual speech therapists such as Ms Lee.

475 In its submissions Carlton noted that there was no evidence of Ms Purcell's annual income or her expenses. It also submitted that "some lifestyle choices" made by Ms Purcell in "the taking of holidays coinciding with school holidays" impacted her earning capacity. This may be so but, for the reasons already explained, it does not assist Carlton.

476 Ms Purcell also said that she and Ms Lee both started working for Pathways in December 2011. She has observed Ms Lee to look exhausted and unable to focus. She recalls Ms Lee complaining of lack of sleep. Ms Purcell has offered Ms Lee work, but she has refused it.

(v) Other material

477 Carlton tendered a document indicating average speech pathologist salaries for the capital cities for the period 2012-2013. In the Sydney area the average wage for a speech pathologist is $75,000 to $100,000.00, and for a speech pathologist grade 1-2 it is in the range age of $54,000 to $78,000.00. The designation "speech pathologist grade 1-2" was not explained by the evidence.

478 It seems that this document is the source of the figures nominated by Carlton as Ms Lee's earning capacity but for her husband's accident. These figures only relate to salaried speech pathologists. However, I accept Ms Lee's evidence that, absent her husband's death, she would have pursued a significant amount of contract work.

(vi) The Plaintiff's submissions

479 Mr Cavanagh SC's written submissions in respect of past economic loss divided the time up to the hearing into two periods. The first was for the period from the accident to June 2008. He submitted that it should be assessed on the basis that Ms Lee was working "to 50% of her capacity", and that the Court should allow $40,000 for that period. Given that the period covers approximately 27 months this assumes that, but for the accident, Ms Lee would have earned approximately $36,000.00 per annum net of tax.

480 On the basis of Ms Bloom and Ms Purcell's evidence, Mr Cavanagh SC submitted that Ms Lee's past economic loss from June 2008 to date of judgment should be assessed on the basis that she would have exclusively undertaken "private" work from the end of 2008. He submitted that such work was available in abundance. He submitted that she would have earned approximately $1,500 "net" per week up to 30 June 2011 and $2,000 net per week thereafter. I understand these figures to be net of expenses and tax.

481 In relation to expenses Mr Cavanagh SC's written submissions asserted:

"The expenses in conducting the business are limited. They consist of petrol and buying some toys and books. They could not be more than 10% of the income."

482 In relation to the future, Mr Cavanagh SC adopted a net figure that corresponded to three times average weekly earnings (CLA, s 12(2)) and projected it over the remainder of Ms Lee's working life, with a deduction for vicissitudes. From this he deducted the amount of $667 (after tax) which was said to represent her current earnings.

(vii) Carlton's submissions

483 Carlton accepted that Ms Lee has been working twenty hours a week for a significant period. It "accepted" (or submitted) that this translated to a 50% impairment of earning capacity and that past loss of earning capacity should be calculated on a "stepped up gross figure at 50%".

484 Carlton submitted that Ms Lee's gross income at the time of her husband's death was $50,000 per annum, although the source for this was an accountant's report which was not tendered. Otherwise it submitted that only a modest increase in income to $75,000.00 up to the time of the trial should be allowed. In respect of future economic loss, it submitted that it should be calculated on the basis that her income would have risen to $100,000.00 seven years hence. Carlton pointed to the absence of any evidence in relation to the expenses involved in supplying speech pathology services under contract, and the absence of any evidence that either Ms Bloom or Ms Purcell earned the level of income sought on behalf of Ms Lee. Carlton also sought a deduction for vicissitudes of 25% to allow for the prospect of improvement in Ms Lee's condition.

(viii) Resolution

485 It is evident from [479] and [483] that there was little difference between the parties in respect of the period up to 30 June 2008. As noted, Carlton was prepared to concede that Ms Lee's income was $50,000 gross. The only evidence capable of rebutting that concession is Ms Lee's taxation returns, which suggest that if her income was doubled it would be slightly less than that amount. Nevertheless I will act on Carlton's concession. Ms Lee's past economic loss for the period up to 30 June 2008 should be assessed on the basis that, absent her husband's death, she would have earned $50,000 gross per annum, but she was only able to earn half of that amount.

486 From this point the parties diverge sharply. I accept Ms Lee's evidence that, absent her husband's death, she would have commenced undertaking contracting work from around the middle of 2008. It is supported by the fact that she did do that in the events that happened. However I consider it likely that she would have continued with some part time employment, given the job security it provided, but the mix between contracting work and employed work was likely to be more tilted towards the former had her husband not died.

487 Further I found Ms Bloom and Ms Purcell's evidence as to the high level of demand for speech therapy services for children diagnosed as being on the autism spectrum, that has prevailed since at least 2008, persuasive. I accept it. I expect that the level of demand will continue, although whether it will be able to be satisfied by State funding and, if so, to what extent, are obvious adverse contingencies affecting whether that demand can translate into earning potential for professionals with Ms Lee's skills.

488 As noted, Carlton submitted that none of the speech pathologists that were called gave evidence as to having received a gross income above the amounts that it identified (at [477]). However, as its submissions recognise, Ms Purcell had family commitments which preclude her working full time ("lifestyle choices"). Ms Bloom repeatedly referred to other practitioners who were in the same position. No doubt the flexibility and more lucrative nature of such work is what makes it more attractive to those practitioners, even if the employment is less secure. However, for the reasons already outlined, this aspect of the assessment is not to be approached on the basis that Ms Lee's ability to work full time might have been compromised by the possibility that she had competing family responsibilities.

489 However the principal difficulty with Mr Cavanagh SC's formulation of Ms Lee's case is his assertion that the level of expenses associated with undertaking contract work is minimal. From that premise he seeks to use Ms Bloom and Ms Purcell's evidence to demonstrate that, absent the accident, Ms Lee could have received a very high level of contract income. He then uses that contract income as the basis for determining past economic loss and for submitting that, in the future, her net income before tax would exceed the figure in s 12(2) of the CLA.

490 However the premise was put in issue by Carlton and has not been made good. The only material concerning the level of expenses incurred in providing speech therapy services under contract are the accounts for Alpha Nova included in Ms Lee's taxation returns, which are summarised above. Even removing some of the items such as depreciation on a motor vehicle which may represent a benefit available to Ms Lee that may not be claimable if she was employed, those expenses are still relatively high. While the oral evidence suggests that, as a general proposition, full time contracting can be expected to yield a higher income than an employed position, I cannot accept that the differential between paid employment and contract work is of the degree suggested by Mr Cavanagh SC.

491 This difficulty is exemplified by the calculations Mr Cavanagh SC includes in his submissions. These involved the deduction of Ms Lee's actual income from a projected income calculated using a bottom up assessment based on Ms Bloom's estimate of the contract income Ms Lee could receive, with a low level of deductions for expenses. However, as best as I can ascertain, the figure for her actual income includes contract income that has been reduced by deducting a large amount of expenses whereas the latter does not. Why should different approaches to expenses be adopted when comparing hypothetical income but for the accident with income that was in fact earned?

492 In my view the appropriate course is to make an assessment of Ms Lee's income after expenses but before tax had the accident not occurred, and then allow recovery of the net (of tax) equivalent of 55% of that amount. The figure of 55% reflects the fact that she is physically only able to work half a full time load, and my acceptance of Ms Lee's evidence that her health problems make her now more inclined to take less lucrative employed work rather than contract work. Further this approach avoids having to closely interrogate her taxation records to assess the true value of her earnings, an exercise that was not undertaken by any of the parties. Nevertheless a comparison of her actual pre-tax income with 45% of the figure determined to be her income after expenses but before tax provides a form of reality check for the figures derived for the past period.

493 I have already accepted a notional starting point for Ms Lee's salaried income of $50,000.00 as at the date of the accident. Allowing for a slightly different mix of paid employment and contract work from 1 July 2008 to the time of the judgment to that which occurred and, bearing in mind the expectation that contract work would exceed the salary ranges suggested by Carlton, I consider that the assessment of Ms Lee's earning capacity but for the accident from 1 July 2008 to the date of judgment should be based on an average annual figure of $85,000.00, net of expenses but before tax. As time progressed it can be expected that Ms Lee's practice would have continued to build. As relationships with schools and clients grew, so could the level of referrals and fees charged. Forty-five per cent of that figure is $38,250.00. That amount is generally in the range of her actual income, allowing for the benefit she derived from some of the matters the subject of her expense claims.

494 In respect of the future, I consider that the figure of $100,000.00 per annum net of expenses but before tax should be adopted for three years, and thereafter $115,000.00 should be utilised. This represents an amount above the salaried figure nominated by Carlton and reflects the undertaking of contract work by a person with Ms Lee's skills. This resultant loss of 55% converted to an amount net of tax should be calculated to an expected retirement age of 67 with a deduction of vicissitudes of 17.5% to reflect that contingency noted in [487] and the limited potential for her to recover (see [445]). These figures accord with my assessment of Ms Lee's most likely future circumstances (CLA, s 13(1)). Subsection 12(2) of the CLA is not engaged.

(e) Nervous shock claim: Past domestic assistance

495 This was agreed at $40,400.00.

(f) Nervous shock claim: Future domestic assistance

496 Ms Lee sought an amount for the future based on four hours a week at $40 per hour for cleaning services. Carlton contended that the appropriate figure was two and half hours per week, as that was the basis for agreement as to the figure for past domestic assistance, with the real dispute concerning the amount of services provided by Mr Lee for the benefit of Ms Lee, a matter addressed below (at [535] ff). I am not persuaded that an allowance for anything beyond two and half hours for cleaning has been made out. Thus, the amount for future domestic assistance should be calculated on the basis of $100 per week.

(g) Nervous shock claim: Past out of pocket expenses

497 These were agreed in the amount of $53,882.00.

(h) Nervous shock claim: Future out of pocket expenses

498 Ms Lee sought an amount for future out of pocket expenses of $186,343.00. The basis for that figure was set out in Mr Cavanagh SC's written submissions as follows:

"The Plaintiff will require approximately 6 to 10 psychiatric consultations annually at $350 each ($53.85 per week), 8 to 10 psychology sessions annually at $230 each ($46.44 per week), medication at $33 per week; making a total of $133,29 in weekly recurring expenditure (apply the 944.5 multiplier) plus admissions to hospital from time to time at $15,750 ($750 per day for 3 weeks), say 3 times, occasionally day patient programs at $400 per day over a 10 to 12 week cycle, say $4,400 on 3 occasions total: $186,343." (emphasis added)

499 Carlton only took issue with the amount sought for admissions to hospital and day patient programs. It submitted that the only evidence bearing on the likelihood of any need for such amounts was part of one of Dr Cassidy's reports, and these amounts should only be allowed as a contingency.

500 The relevant part of Dr Cassidy's report dated 22 February 2011 addressed the likely treatment that Ms Lee would require, stating as following:

"From time to time [Ms Lee] will need admissions to hospitals. ... [Ms Lee] may be referred to Day Patient Programs which are charged at between $350 - $450 per day. These typically occur over a 10-12 week cycle and she may require these on an annual or biannual basis as an adjunct to her treatment." (emphasis added)

501 In the six years since her husband's death Ms Lee has already been hospitalised. The assessment of her future expenses involves a projection of the medical expenses Ms Lee was likely to incur for the remainder of her life. This is to be undertaken in circumstances where I have found that her prospects of recovery are low. In my view a calculation based on three hospital admissions and three day patient programs properly reflects the contingencies associated with the items claimed.

502 I accept the plaintiff's figure.

(9) Damages under the Compensation to Relatives Act 1897 (NSW)

503 As noted, Ms Lee also brings an action under the Compensation to Relatives Act 1897. She is the only person eligible to bring such an action in respect of Mr Lee's death (s 4(1)). Subsection 3(2) enables the recovery of funeral expenses. In this case they are agreed at $10,249.00. Otherwise, s 4(1) entitles her to recover such damages as are "proportioned to the injury resulting from such death".

504 In De Sales v Ingrilli [2002] HCA 52; 212 CLR 338 ("De Sales") Gleeson CJ summarised the principles applicable to recovery under the Compensation to Relatives Act 1897. First, his Honour noted that "damages are calculated by reference to the pecuniary benefit[s] that could reasonably have been expected from the continuance of the life had death not occurred" (at [11]). Second his Honour noted that "damages for injury are calculated on a balance of pecuniary gains and losses consequent upon the death" (at [11]). Third, the claim for the loss of the expected benefit is not restricted to the loss of direct financial support, but extends to the "value of services the deceased would have provided around the home" (at [13]).

505 Further Gleeson CJ described the "three main elements" of the assessment for the amount of damages referable to the loss of a reasonable expectation of a pecuniary benefit as follows (at [14]):

"Calculating damages for the loss of a reasonable expectation of pecuniary benefit usually involves calculating a primary sum and then making such further adjustments or allowances as are necessary to produce a result that gives a true reflex of the loss. The nature of such adjustments and allowances will be influenced by the manner in which the primary sum is calculated. In a case like the present, there are three main elements in determining the primary sum. Each element involves speculative judgments, which cannot be made with accuracy. The court assesses what benefits the deceased would have brought to the family, in the form of either income or the provision of services. The court determines the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime. And the court determines the period for which a relative could reasonably have expected to receive the benefit." (emphasis added)

506 At the time of the hearing the parties made submissions on the assumption that a determination of the benefits that Mr Lee would have brought to his relationship in the form of income was to be determined on the basis that an assessment of Mr Lee's earnings but for his death were limited to three times average weekly earnings by the operation of s 12(2) of the CLA. As at the date of judgment the amount referred to in s 12(2) is approximately $174K. This assumption was consistent with the Court of Appeal's decision in Taylor v The Owners - Strata Plan No 11564 [2013] NSWCA 55; 83 NSWLR 1. However, after the hearing, the High Court published its judgment on the appeal from that judgment (Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 ("Taylor")). Mr Cavanagh SC made a brief submission in respect of Taylor. Carlton did not provide any further submissions.

507 In Taylor, the High Court held that with a claim under the Compensation to Relatives Act 1897 the reference to the "claimant's gross weekly earnings" in s 12(2) of the CLA was not a reference to a deceased's earnings (at [41] per French CJ, Crennan and Bell JJ). It would follow that s 12(2) only imposes a limit on Ms Lee's earnings in determining the amount she recovers for the loss of expectation of future benefit (and her nervous shock claim). This could affect, in a manner beneficial to Ms Lee's case, the assessment of the second element described by Gleeson CJ in De Sales, namely "the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime". However, as I do not accept that Ms Lee's earnings will reach the point of exceeding three times average weekly earnings, s 12(2) is irrelevant.

508 In its written submissions (which pre-dated Taylor) Carlton queried whether s 13 of the CLA was also applicable to an assessment of loss of the pecuniary benefits that could reasonably have expected to have been received had Mr Lee lived. It is difficult to see how "claimant" in s 13 could refer to Mr Lee given Taylor's construction of "claimant" in s 12. In any event the findings below accord with my assessment of Mr Lee's "most likely future circumstances" but for his death (CLA, s 13(1)).

(a) The income Mr Lee would have brought to his marriage

509 Consistent with the passage cited from De Sales, the first matter to determine is the "income" that Mr Lee would have brought to his marriage with Ms Lee.

510 Mr Lee attended the National University of Singapore from 1993 to 1995. After graduating he commenced working for Singapore Press Holdings as a journalist. From 1997 he worked in a number of editorial positions with different publishing companies. In July 1999 he commenced working for Fairfax Publications ("Fairfax") as editor of their web site "MISweb". He was based in Singapore. In August 1999 he began working from the Sydney office of Fairfax.

511 However Mr Lee decided to pursue a different career path. He had undertaken a number of computer software courses. In October 2000 he commenced employment as a Technical Support Representative for a software company. In March 2001 he was appointed a "Chinese Helpdesk Support Officer" with Dow Corning. In August 2001 he was employed as a Systems Engineer by "Coefficiency".

512 In July 2002 Mr Lee obtained work as a "Network/Desktop Support Officer" with the Smith Family. His commencing salary was $46,000 per annum.

513 On 19 January 2005 Mr Lee commenced employment with the Sydney Ports Corporation ("Sydney Ports") as a "Network Support Analyst" in the Corporation's "Finance and Information Services Unit". His commencing salary was $55,837.00 per annum excluding superannuation contributions. Sydney Ports is a State owned corporation responsible for the harbour, traffic control and emergency response services for Port Jackson, Botany Bay, Port of Eden and Port of Yamba.

514 In October 2005 his position was reviewed and re-evaluated. He was re-designated as "Information Systems Support Analyst" and his salary was increased to $65,374.00 per annum, with superannuation contributions of $5,884.00. He was entitled to a weekly on-call allowance of $311.00 and access to overtime payments.

515 Mr Lee's second last tax return was for the financial year ended 30 June 2005. His gross salary is recorded as $49,452.00. This reflects a combination of the income while he was employed at the Smith Family and his first six months at Sydney Ports. After some modest deductions his taxable income for that year was $48,491.00.

516 After Mr Lee's death his estate lodged his tax return for the financial year 2005/2006. His return records his gross payments from his employer of $48,708 and a taxable income of $46,846.00. There is nothing in his return to indicate that any special payment was made by Sydney Ports on his death. Thus he received approximately $48,000.00 for eight months work which corresponds to $72,000.00 per annum. This significant increase is consistent with the re-evaluation of his position in October 2005 and the payment of allowances and overtime.

517 At the time of his death, Mr Lee's supervisor was Niklas Power the then Manager of Infrastructure and Support. Mr Power described Mr Lee's position as Network Support Analyst as a "technical IT support role with customer facing supporting aspects". Mr Power has since been promoted to Senior Manager IT Strategy and Architecture in Business Change at Sydney Ports. He described Mr Lee as both "technically proficient" and someone he was "very comfortable putting in front of customers as well".

518 Mr Power explained that in 2009 a number of new roles were created within Sydney Ports. Mr Power was promoted, and a position of Service Delivery Manager was created out of his old position, which was filled by internal and external candidates applying for the position. Mr Power explained that had Mr Lee remained in his old position then, through a process of review and re-evaluation, he would have been automatically redesignated as a Senior Infrastructure Specialist ("would have been promoted to that position almost by default"). As at 2009 the salary for that position was $93,589.00 with an eligibility for a bonus of 5%, and an on-call allowance of $378.00 per week when rostered on.

519 The current salary for that position is $123,735.00 inclusive of superannuation plus an on-call allowance when rostered on call. Mr Power stated that, in the ordinary course, a person in that position can expect to be on call for a quarter of the year. Thus the total expected remuneration for the position in 2009 was $103,182.00 including a 5% bonus, and as at 2013 was $134,835.00 including a 5% bonus.

520 Mr Power stated that the Service Delivery Manager position that was created in 2009 was less technically focused and more customer orientated. He said the role was selected by the general manager of IT, although his recommendation would have been sought. He described Mr Lee as a "valid candidate" for that position. The current salary for that position was $135,000.00 inclusive of superannuation with an "at risk bonus" of $8,000.00.

521 Mr Power explained that his current position was one of two managerial positions at Sydney Ports reporting to the General Manager of IT. His salary was approximately $200,000.00. Mr Power was 46 years of age at the time of the hearing. He said that promotion to his level was based on managerial experience and performance. He agreed that it was possible that Mr Lee could have achieved that position. His observation was that Mr Lee displayed more than technical skills and was developing managerial skills. In cross-examination Mr Power explained that a candidate would typically possess ten to fifteen years experience before obtaining such a position.

522 The evidence clearly supports an assessment of Mr Lee's earnings up to judgment on the basis that he continued to be employed by Sydney Ports. None of the parties suggested to the contrary. Thus, for the period from Mr Lee's death until 23 December 2009 Mr Lee's earnings but for his death can be assessed on the basis that he was employed as a Network Support Analyst on a salary that commenced around $72,000.00 gross and was modestly increased. An average of $75,000.00 gross should be used for this period. For the period from 23 December 2009 until judgment his earnings should be assessed on the basis that he was employed as a Senior Infrastructure Specialist until the time of judgment, initially earning $103,182.00 and earning $134,835.00 gross as at the date of the hearing. In the absence of further evidence and allowing for the time between hearing and judgment, the calculation of his earnings for the period from 23 December 2009 to the date of judgment should utilise an average of $120,000.00 per annum gross.

523 I would also allow an amount of $10,000.00 as a contingency against the possibility that he might have been selected for the position of Service Delivery Manager in 2009. Although Mr Power was complimentary of Mr Lee's capabilities, he did not appear to assess his prospects of obtaining that position at that time as more than a possibility.

524 At the time of his death Mr Lee was thirty-four years old. Had he lived to the time this judgment is published he would be forty-two years old. In his early career he demonstrated flexibility, effectively re-skilling and changing careers. He was intelligent, competent and strategic No position, including one in the public service, confers absolute job security. Nevertheless Mr Lee's employment by Sydney Ports appears comparatively stable by current standards, at least in the information technology area. That said, information technology is self evidently an area where technological change can render jobs redundant and alter work structures. Information technology positions are often outsourced, although the operation of a port offshore seems difficult to contemplate.

525 The starting point for considering Mr Lee's future earnings is the current salary and benefits for a Senior Infrastructure Specialist, namely $134,835.00 including bonus and on-call allowance. However as he acquired experience his prospects of promotion would have increased. No doubt, as one ascends the hierarchy at Sydney Ports the available senior positions reduce and the internal and external competition for them becomes intense. However, bearing in mind Mr Power's salary, it can be expected that Mr Lee's gross remuneration would have increased, and that in his late forties and fifties it may or might have been very substantial.

526 There are a number of contingencies that affect this. There is an element of speculation in extrapolating a long career path for Mr Lee at Sydney Ports based on an eighteen month work history. I have already noted the potential for change in the information technology area. The more senior the position that Mr Lee may have attained the greater the likelihood that, if he had lost his employment, it would have taken a longer period to find employment at the same level. That said, as I have stated, Mr Lee may have left Sydney Ports for more lucrative employment. Mr Power described the salaries at Sydney Ports as being "in the middle of the range" for the IT industry as a whole.

527 In my view Mr Lee's earnings absent his death from the date of this judgment should be assessed to age 67 on the basis that he would have earned $134,835.00 for a period of six years, and then an income of $190,000.00 thereafter (before deduction of the usual amount for vicissitudes). This necessarily rough calculation is intended to reflect the likelihood of him continuing in the position of Senior Infrastructure Specialist, the contingency that he may have been promoted to Senior Delivery Manager, that in the medium to longer term he had reasonably strong prospects of promotion to one level higher and some prospects of promotion beyond that. It also reflects the potential for him to lose his employment and that, if he lost employment, it may have been difficult for him to obtain employment at the same or similar level, especially bearing in mind his likely age at that time.

(b) The share of the benefit

528 The second step described by Gleeson CJ in De Sales at [14] involves "determin[ing] the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime". In Halvorsen at 15C Clarke JA referred to the decision in Harris v Empress Motors Ltd; Cole v Crown Poultry Packers Ltd [1983] 3 All ER 561 in which O'Connor LJ held that, where the family unit was a husband and wife, the "conventional figure" that was adopted as the proportion of the (late) husband's net income that was spent exclusively on himself was one third, with one third for the benefit of his widow, and the remaining one third for the couple's joint benefit. His Honour then explained (at 15D to 15G):

"Although every case must be determined upon its own facts and care must be taken in applying conventional figures there is, in my view, much sense in this approach. For instance, while a husband may provide, and derive benefit from, the family home it is obvious that the wife also derives benefit from it. Where there are joint incomes, and the parties pool those incomes, there is much to be said for adopting the conventional approach in the absence of particular circumstances which tell to the contrary. That would not mean that the wife's benefit would be assessed at 66 per cent of the husband's earnings. Rather it would mean that they would be assessed upon the basis that she was receiving the benefit of 66 per cent of their joint incomes. In this case looking at the matter broadly, and that is the only way one can look at it, it would seem to me that that result would be achieved by assessing her dependency at 40 per cent. Let me give an example to demonstrate why I reach that conclusion. If we assume that at the time of the deceased's death he was earning $500 nett per week and his widow was earning $400 nett per week an allowance of 40 per cent of the husband's earning would result in an assessment of the dependency at 66 per cent of the total. (Forty per cent of $500 is $200 and if one adds that figure to the wife's earnings of $400 it will be seen that she would receive the benefit of $600 of a combined income of $900.) In the circumstances of this case that seems to me to effect broad justice in the assessment of the damages." (emphasis added)

529 This approach involves the combining of the two incomes of the spouse and then the application of a dependency rate similar to that applicable to a surviving spouse who is not earning an income. Otherwise it should be noted that the approach outlined by Clarke JA is one that involves an appeal to effecting "broad justice". It does not require a bottom up itemised assessment of the spouses' respective contributions and spending patterns, although it accepts that "every case must be determined upon its own facts".

530 Mr Cavanagh SC pointed out that in Roads and Traffic Authority v Cremona [2001] NSWCA 338 ("Cremona") the deceased and the surviving spouse were both working, but nevertheless the trial judge allowed a dependency rate of 63% (at [82]) which on appeal was increased to 71% (at [136]). Two aspects of Cremona should be noted. First, those rates concerned the proportion of the joint income which was for the wife's benefit (ie they correspond to the 66% figure in the above extract, not the 40%). Second the differential between the respective incomes of the husband and wife in Cremona was substantial. The late Dr Cremona was a busy medical practitioner while Mrs Cremona was likely to return to work as a part time pharmacist (at [134]).

531 Mr Cavanagh SC submitted that the appropriate proportion that Ms Lee would share in the income of her late husband was 50%. He submitted that the possibility that Ms Lee would have children by adoption was a contingency that warranted an increase in the dependency rate. I have already explained that I am bound by Halvorsen to reject that submission. Otherwise Mr Cavanagh SC pointed to the high income earning potential of Mr Lee and his relative youth at the time of his death. He referred to various personal characteristics of Mr Lee as described by Ms Lee, namely that he was intelligent, deliberate, fastidious, "particular and safe", careful with money, and had discussed investing their money for their joint benefit. Thus for example his salary was paid directly into their mortgage.

532 Carlton submitted that, in the event that the Court found that Mr Lee and Ms Lee's earning capacities were similar, a rate similar to that adopted in Halvorsen should be adopted, but otherwise the resolution of this should await the Court's findings as to respective earning capacities of Ms Lee and Mr Lee.

533 Given the approach stated in Halvorsen and the relatively narrow range between the parties' respective figures, I consider it appropriate to determine the matter at this point.

534 The figures I have found suggest there would have been a substantial but not dramatic difference in earning capacity between the late Mr Lee and Ms Lee opening up in future years. Further, the couple's combined income would have been substantial and they appear to have been relatively prudent. These factors all tend to raise the proportion of Mr Lee's income that Ms Lee was likely to receive the benefit of. I consider a dependency rate of 45% to be appropriate.

(c) Services provided by Mr Lee

535 In her evidence Ms Lee said that she and her husband maintained a very clean house and shared many household tasks. Ultimately It was agreed that Mr Lee performed washing, some aspects of cleaning, shopping, car cleaning and spring cleaning, and that this amounted to eight hours per week at a rate of $40 per hour.

536 Mr Cavanagh SC submitted that a further one hour per week in respect of Mr Lee providing such services for investment properties was sought. Carlton resisted this on the basis that it was too speculative. I agree. Ms Lee recalled that her husband discussed using their income to purchase such properties. However, given that I have accepted the likelihood that Mr Lee would have been promoted to a more senior position, I consider it was likely to reduce the available time he had to maintain them, especially bearing in mind that if someone else was paid to maintain the investment properties the expenditure might be tax deductible.

537 Otherwise the plaintiff sought a further two hours a week for maintaining a garden. This amount was reduced from what was initially claimed because Ms Lee occupied a smaller house. I will allow one and a half hours per week. Accordingly this head of damages should be allowed on the basis of 9.5 hours per week at $40 per hour.

(d) The period for which Mr Lee could reasonably have expected to receive the benefit

538 The third step described by Gleeson CJ in De Sales involved the Court determining the period for which a relative would have been likely to receive the relevant pecuniary benefit. Mr Cavanagh SC's calculations were premised on Mr Lee's services being available for the rest of his life expectancy, subject to the usual vicissitude rate of 15%. One of his calculations calculated Mr Lee's income by adopting the cap in s 12(2) of the CLA, but contended that no deduction for vicissitudes should be adopted because of the cap's application. I have explained the effect of the decision in Taylor so that Mr Cavanagh SC's submission falls away. No submission was made on behalf of Carlton that the allowance for vicissitudes should be any higher on account of any matter such as the possibility of her forming a new long term relationship. This accords with principle (see De Sales at [76] to [77] per Gaudron, Gummow and Hayne JJ). Otherwise Carlton did not take issue with this aspect of Mr Cavanagh's submission. Accordingly, the calculations of Mr Lee's income will be undertaken on the basis that he would have worked to a retirement age of 67 and able to provide services until the end of his expected life expectancy. This will be subject to a 15% discount for vicissitudes.

(10) Superannuation

539 The parties should address superannuation in their calculations.

(11) Costs of future funds management

540 It follows from the above findings that Ms Lee will recover substantial damages. A claim for the costs of fund management was made on her behalf.

541 The mere fact that a plaintiff will be required to manage a fund, perhaps a substantial fund, for the rest of his or her life, will not justify the inclusion in the award of an amount to cover professional costs of assistance in managing the fund, unless the need for such assistance itself flowed from the tortious conduct of the wrongdoer (Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49).

542 In this case none of the medical reports tendered on behalf of Ms Lee specifically addressed her capacity to manage a large financial fund. There is no reason to doubt that Ms Lee has the intellectual capacity to understand the concepts involved in managing a fund of the size she will receive. Her level of despair raises a possible concern that she may make some deliberately reckless financial decisions, but that is the prerogative of all successful plaintiffs.

543 I am not satisfied that Ms Lee has established an entitlement to this head of damages.

(12) Future disposition

544 As previously noted, the parties will need to prepare calculations and confer as to the appropriate orders necessary to give effect to this judgment. If further findings are required to complete the calculations the parties can make the appropriate application.

545 For the present, I will stand the proceedings over for a mention to allow the parties to perform calculations and confer. If agreement as to the outcome can be reached in the meantime, the parties can exercise liberty to apply.

(13) Orders

546 Accordingly, the Court orders:

(1) The proceedings stand over to 17 October 2014 at 9:00am for directions.

(2) There be liberty to apply.

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Decision last updated: 19 September 2014