Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
• Hearing dates: 6 - 7 February 2014
• Decision date: 03 April 2014
• Before: Emmett JA at [1]; Gleeson JA at [7]; Tobias AJA at [252]

Decision

Appeal - 2013/13214

(1) Appeal allowed in part (in relation to the indemnity costs order on and from 18 August 2011 based on the Calderbank offer).

(2) Appeal otherwise dismissed.

(3) Set aside order 2 made by the primary judge on 14 May 2013.

(4) Amend order 3 made by the primary judge on 14 May 2013, by deleting the words "Without prejudice to the earlier order by reason of the Calderbank offer, and in the alternative, but in the circumstances with no effect so long as the earlier orders remain in effect".

(5) The respondent's notice of motion filed 24 October 2012 be dismissed with costs.

(6) Appellant to otherwise pay the respondent's costs of the appeal.

Summons for leave to appeal - 2012/334491

(1) The applicant to pay the respondent's costs of the summons.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: COSTS - Indemnity costs order based on a Calderbank offer; DAMAGES - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Future Economic Loss and Past Gratuitous Care - Sections 13 and 15 of the Civil Liability Act; EVIDENCE - General - Whether inference open from failure to call witness - Whether Court improperly applied the rule in Jones v Dunkel; JUDGES - Grounds of review - Procedural fairness - Bias - Actual and/or apprehended bias - Whether judge indicated prejudgment; TORTS - Negligence - Essentials of action for negligence - Duty of Care - Whether there was a breach of duty - Section 5B of the Civil Liability Act; TORTS - Negligence - Essentials of action for negligence - Damage - Causation - Whether the (assumed) breach of duty was a necessary condition of the occurrence of harm - Section 5D of the Civil Liability Act; PROCEDURE - When appeal lies - By leave of court - Threshold monetary value less than $100,000 - Objection to Competency of appeal under r51.41 Uniform Civil Procedure Rules - Right of appeal to Supreme Court under Section 127(2)(c) of the District Court Act; PROCEDURE - Adducing expert evidence - r31.28 Uniform Civil Procedure Act - Late filing and service of expert reports
• Legislation Cited: Civil Liability Act 2002, s5B, 5D, 13, 15; District Court Act 1973 s127(2)(c); Uniform Civil Procedure Rules 2005 r31.28, 51.41
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserve Trust) v Thompson [2012] NSWCA 340; Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281; Coregas Pty Ltd v Penfold Australia Pty Ltd [2012] NSWCA 350; Galea v Galea (1990) 19 NSWLR 263; Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 193; Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239; Johnson v Johnson [2008] HCA 48; 201 CLR 488; Jones v Dunkel [1959] HCA 8; 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361; Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8; Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; Payne v Parker [1976] 1 NSWLR 191; Reid v Commercial Club (Albury) Ltd (District Court 19 December 2012); Reid v Commercial Club (Albury) Ltd (District Court 14 May 2013); Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330; Rouvinetis v Knoll [2013] NSWCA 24; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668; Sneddon v New South Wales [2012] NSWCA 351; South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; Sutherland Shire Council v Henshaw [2004] NSWCA 386; SZURI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80; Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234; Vakauta v Kelly [1989] HCA 44; 167 CLR 568; Woolworths Limited v Strong & Anor [2010] NSWCA 282; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
• Category: Principal judgment
• Parties: Kimberley Reid (Appellant/Applicant); Commercial Club (Albury) Ltd (Respondent)
• Representation: Counsel: F Austin (Appellant/Applicant); M T McCulloch SC with T A Berberian (Respondent); Solicitors: Gerard Malouf & Partners (Appellant/Applicant); HWL Ebsworth (Respondent)
• File Number(s): 2013/13214, 2012/334491

Decision under appeal

• Jurisdiction: 9101
• Citation: Kimberley Reid v Commercial Club (Albury) Limited (District Court, 19 December 2012, unreported); Kimberley Reid v Commercial Club (Albury) Limited (District Court, 14 May 2013, unreported)
• Before: Gibb DCJ
• File Number(s): 2011/237046

Judgment

1 EMMETT JA: This appeal is concerned with injuries suffered by the appellant, Ms Kimberley Reid, when she fell in the auditorium in premises owned and occupied by the respondent, Commercial Club (Albury) Limited (the Club). Ms Reid asserted that the Club was in breach of a duty of care owed to her and she sued the Club in the District Court. The District Court concluded that Ms Reid fell because she did not look where she was going, that there had been no breach of duty by the Club and that there was no causal connection between any breach and the damage suffered by Ms Reid. However, the primary judge also found that, if the Club had been found liable for breach of duty, Ms Reid would have been awarded damages in the sum of $54,399. Her Honour directed verdict and judgment for the Club, made several orders for costs against Ms Reid and confirmed certain interlocutory orders for costs that had been made against Ms Reid.

2 Ms Reid has appealed against the decision dismissing her claim and the orders for costs. She challenges the findings made by the primary judge that there was no breach of duty and no causal connection between the breach and the damage suffered by her. Ms Reid also challenges the hypothetical quantification of damages made by the primary judge. She further challenges an order for indemnity costs made against her. Finally, she challenges the primary judge's decisions on the basis of actual bias during the hearing, or actual or apprehended bias in her Honour's judgments.

3 Several motions were before the Court on the hearing of the appeal. Ms Reid filed a motion seeking leave to file a third further amended notice of appeal and that leave was granted, except for appeal grounds 21 and 22. The Club filed two motions: one seeking summary dismissal of the appeal on the ground that it was incompetent because the amount that was in issue was less than $100,000, and the second one seeking dismissal of a summons filed by Ms Reid seeking leave to appeal from an evidentiary ruling and certain interlocutory costs orders made by the primary judge during the course of the trial. The Court reserved its decision on the question of the competence of the appeal and dismissed the summons for leave to appeal, but reserved the question of costs.

4 I have had the advantage of reading in draft form the comprehensive reasons of Gleeson JA. I agree with Gleeson JA, for the reasons given by his Honour, that, although the primary judge may have misapplied the rule in Jones v Dunkel [1959] HCA 8; 101 CLR 298, that error did not lead to any error in her reasoning that there was no breach of duty on the part of the Club. I also agree with Gleeson JA's reasons for concluding that there was no causal connection between any possible breach of duty by the Club and Ms Reid's injury. In addition, I agree with his Honour's conclusions concerning Ms Reid's challenge to the primary judge's hypothetical quantification of damages. Finally, I agree with Gleeson JA that neither actual bias during the trial hearing, nor actual or apprehended bias in the primary judge's judgments, is made out.

5 In relation to costs, I also agree with what Gleeson JA proposes concerning the special order for costs made by the primary judge and with his Honour's observations concerning the way in which the primary judge dealt with the question of costs. Finally, I agree with Gleeson JA that Ms Reid's limited success in relation to costs should not reduce the costs payable by her to the Club in respect of her otherwise unsuccessful appeal. The appropriate order, therefore, is that proposed by Gleeson JA, that Ms Reid pay the Club's costs of the appeal.

6 I also agree with Gleeson JA that the Club's notice of motion objecting to the competency of the appeal should be dismissed with costs. I agree further that Ms Reid should pay the Club's costs of the summons seeking leave to appeal from the interlocutory orders.

7 GLEESON JA: The appellant, Ms Reid, was injured when she attended an awards night function at the respondent's premises in Albury on 18 June 2010. The appellant suffered a fractured ankle and foot when walking to the dance floor in the auditorium in which the function was held. She missed the step down to the dance floor and fell.

8 The appellant sued the respondent, who was the owner and occupier of the premises known as the "Commercial Club Albury", alleging that the respondent had breached a duty of care owed to her.

9 In the District Court the primary judge (Gibb DCJ) dismissed the appellant's claim on the ground that she had failed to establish a relevant breach of duty or causation. If liability had been established her Honour found that damages would have been awarded in the sum of $54,399. Her Honour ordered the appellant to pay the respondent's costs and "confirmed" earlier interlocutory costs orders which had been made against the appellant on 21 June 2012 and 15 October 2012 in respect of amendments to the pleading and an adjournment on the second day of the trial. Her Honour also ordered that the costs of the adjournment of the hearing on 29 October 2012 be costs in the cause. Her Honour granted liberty to apply within 21 days for variation of the costs orders: Reid v Commercial Club (Albury) Ltd, District Court of NSW, Gibb DCJ, 19 December 2012 (Judgment).

10 The respondent sought a special costs order against both the appellant and her solicitors. Following a further hearing, the primary judge made indemnity costs orders against both of them: Reid v Commercial Club (Albury) Ltd and Gerard Malouf and Partners (District Court of NSW, Gibb DCJ, 14 May 2013 (Costs Judgment).

11 Relevantly to this appeal, the primary judge ordered the appellant to pay the respondent's costs of the proceedings assessed on an ordinary basis up to and including 17 August 2011, and on an indemnity basis thereafter having regard to the terms of a Calderbank offer. Her Honour made a further order, purportedly in the alternative but expressed to be of no effect so long as the first cost order remained in effect, that the appellant pay the respondent's costs of the proceedings assessed on an ordinary basis up to and including 21 May 2012, and on an indemnity basis thereafter based on an offer of compromise under r 20.26 of the Uniform Civil Procedure Rules 2005 (UCPR). Her Honour ordered the appellant to pay (on an indemnity basis) the costs of the application for a special costs order.

12 Ms Reid appeals against both decisions, disputing the findings on liability that there was no breach of duty and no causation, and challenging the primary judge's hypothetical quantification of damages and the indemnity costs order based on the Calderbank offer. Ms Reid also challenges the decisions of the primary judge on the grounds of demonstrated actual bias during the hearing, or actual bias or apprehended bias in the judgments themselves.

13 Before the Court on the hearing of the appeal were a number of motions. First, a motion by the appellant seeking leave to file a third further amended notice of appeal. Leave was granted to file this document, excluding appeal grounds 21 and 22, which were not pressed.

14 Secondly, there were two motions by the respondent, one seeking to strike out the notice of appeal on the grounds of competency (because the amount in issue was said to be less than $100,000), and the second, in related proceedings, seeking to dismiss a summons for leave to appeal which was said to be otiose. The summons for leave to appeal had been filed by Ms Reid on 26 October 2012 in respect of an evidentiary ruling on 20 June 2012 admitting a report of Dr Cooke dated 1 June 2012 (the Cooke report), and certain interlocutory costs orders made on 21 June 2012 and 15 October 2012.

15 The Court reserved its decision on the competency objection and indicated that it would deal with this objection concurrently with the appeal. For the reasons given below, the competency objection fails.

16 The Court dismissed the summons for leave to appeal and reserved the question of costs. For the reasons given below, the appellant should pay the respondent's costs of the summons.

Circumstances of the appellant's injury

17 The appellant attended an awards night function organised by the Master Builders Association at the respondent's premises on 18 June 2010. The primary judge recorded that the function was held in an auditorium, with patrons seated at tables near a dance floor, and presentations were made at a stage area created at the front of the dance floor. The dance floor was about 170mm lower than the adjacent floor, where the appellant was seated, and bounded by a railing which was lit with what were referred to as bud lights with gaps allowing entry/exit on each side, there being six entries in all, three on each side of the dance floor, one with a ramp (Judgment at 1).

18 The seating area of the auditorium was carpeted with a multicoloured carpet with mainly blue and red colours. The dance floor was a yellow coloured timber with a highly polished surface. Around the dance floor, on the vertical face of the change of level between the seating area and the dance floor, there was a gold coloured highly polished metallic material (Blue 395S-W). The top of the step down to the dance floor had brass and brown vinyl strips between the step nose and the multicoloured carpet (Blue 396N-O). The brass strips were described variously in the evidence as either the "gold coloured" or "yellow metallic" nosing strip.

19 The formal part of the evening took place over about two and a half hours. The appellant sat at a table near the entry point to the dance floor and watched the awards ceremony. At the conclusion of the awards ceremony the lights were dimmed somewhat and people started dancing on the floor. The appellant and a friend at her table, Ms Kirsty Snoey, decided to dance. The appellant took off her shoes before following her friend onto the dance floor. When the appellant walked to the dance floor, she did not see the step down to the recessed dance floor and fell (Judgment at 3).

20 The primary judge found that the appellant got up to go to the dance floor about 30 minutes after the awards ceremony had finished. Her Honour accepted the expert evidence of Dr Watson that this meant there was ample time for the appellant's eyes to adapt to the dimmed lighting. Although the appellant described the area where she fell as dark, and expressed her belief that the (dimmed) lighting explained her fall, the primary judge found that:

(1) the lighting was adequate, both the dimmed lighting when the dancing began and the lighting that earlier applied during the formal part of the evening;

(2) there was ample opportunity for the appellant to observe the existence of the step down to the dance floor, both during the formal part of the night and when she went to the dance floor; and

(3) there were a variety of effective visual cues to which the appellant paid no heed (Judgment at 16-17).

21 The primary judge also found that the appellant was not obstructed or interfered with on her path to the dance floor and she was just following her friend, Ms Snoey. Her Honour accepted the evidence of Mr van Zanten that the entrance to the dance floor "was not crowded as such", and rejected the evidence of the appellant's husband, Mr Reid, that there was a "rabble" around the entrance way (Judgment at 13-14). Although the appellant gave evidence that she and Ms Snoey had to wait to get onto the dance floor, the primary judge observed that the appellant did not give evidence about traffic, congestion, or obstruction when she moved off towards the dance floor (Judgment at 15).

22 The primary judge's conclusion concerning the circumstances of the injury is expressed in the following factual finding (Judgment at 17):

"I find that the plaintiff was not looking where she was going. She did not see the step on which she came to grief because she did not look where she was walking. She was districted [sic] by following her friend and paying no heed to the path she was taking, to the point that she did not look where she walked, which was in an area right beside where she had been seated for a couple of hours."

The appellant's case at trial

23 The appellant's case was a relatively simple slip and fall type case. The appellant's closing submissions identified the "real issue" as being whether there were sufficient visual cues in the circumstances of the evening to aid a person exercising reasonable care to observe the step. The appellant contended that the respondent, acting reasonably, would have taken precautions other than merely using a metallic nosing edge (on the step) to act as a visual cue (Supplementary Black 16).

24 The appellant's case relied upon support from Mr Ian Burn, an engineer, and Mr Peter Sarlos, an architect. The respondent relied upon expert evidence from Dr Gordon Watson, an electrical engineer with specialist expertise in lighting, and Dr John Cooke, an architect.

The expert evidence

25 Mr Burn expressed the opinion that:

"Under low level of illumination during events with people regularly accessing the dance floor from the dining area clear visual identification of the level change is not always possible.

Either the use of highlighting of the step by focussing [sic] illumination, or replacing eh [sic] step by a suitable ramp would prevent reoccurrence of the injury type suffered by Ms Reid." (p 14)

26 Mr Burn's opinion was given on the assumption that there was a crowd of people entering and exiting the dance floor at the access point where the appellant fell. As noted above at [21], her Honour found that the entry point to the dance floor was not crowded.

27 Mr Sarlos, an architect, expressed the opinion in his report that:

"The configuration of the step is uncommon. It comprises two steps placed at 90° to one another, each having a clear dimension of 930mm between the end of the handrail and the intersection of the two steps. I consider that in the circumstances that existed on the night this configuration was hazardous for the reasons set out below." (Blue 71Y-72C)

28 Mr Sarlos considered that the configuration of the step at a right angle was the main problem in causing injury to Ms Reid, due to the fact that it allowed three different paths of travel onto the dance floor causing congestion at a point about 0.5 metres from the edge of the step, whereas the other entry points minimised the number of people entering the dance floor at the one time (Blue 74H-R; Black 484R-T).

29 Mr Sarlos recommended that the subject entrance be modified to either install a ramp, or create a single entrance on either side of the corner, or create two entrances away from the corner and separated by a 1.5 metre gap (Blue 78K-P and 80D-H).

30 Dr Watson conducted a visibility appraisal in conditions which replicated those on the night of the accident, both before and after the lighting had been dimmed for dancing. He sat at the same table as the appellant sat at prior to the accident. After the lighting had been dimmed for approximately 10 minutes, so that his eyes were adapted to the ambient level of the auditorium illuminance, he observed that:

"The dance floor appeared brighter due to the yellow coloured timber flooring. I could identify the rail around the dance floor with the white bud lights switched ON as an easy visual task. I could identify the brass and brown vinyl strips between the carpet in the seating area and the nose of the step leading to the dance floor as an easy visual task." (Blue 399H-K)

31 Dr Watson further observed that when he stood up and walked to the corner of the dance floor where the railing allowed access to the dance floor:

"I could identify, with ease, the area at the step where the brass and brown strips forming a step before and down to the dance floor. I could identify that there was a change of level between the brass strips and the yellow timber of the dance floor as an easy visual task." (Blue 399O-Q)

32 Dr Watson expressed the conclusion that:

"... a person with eyes in the dark adaptation mode for the illumination provided within the auditorium by the wall lights and the table candles after the formal part of the evening had finished and with the lighting was [sic] reduced to provided an ambience for dancing who was keeping a proper lookout for their own safety would have identified the step and the access area at the dance floor as an easy visual task." (Blue 403R-V)

33 Dr Cooke, an architect, described the step nosing as being of a conventional type, consisting of a bright yellow/bronze anodised aluminium body containing two parallel inserts of brown coloured, non-skid synthetic rubber or the like. The bright anodised aluminium body of the nosing had a slightly rounded 10mm wide front edge, a 17mm wide tapered back edge, and an inner strip 10mm wide between the two non-skid strips. Dr Cooke observed:

"The 'yellow metallic nosing strip' of the step nosing is different in colour from the carpet and sufficiently different in colour from the timber dance floor surface to constitute a visual cue under the 'aesthetic' lighting conditions created for dancing. The high level of reflectivity of the bright brass colour of the anodized aluminium head strip contributes to the visual cue provided by the nosing. The central and rear metal strips of the nosing contribute to the totality of the visual cue provided by the nosing." (Blue 458S-W)

34 Dr Cooke expressed the opinion that the step was adequately marked by visual cues under full lighting conditions, and under "aesthetic" lighting as in place at the time of the alleged incident. Dr Cooke identified the visual cues as being that the dance floor was obviously recessed one step below the adjacent floor; the nosing of the carpeted floor clearly marked the position of the step; and the breaks in the balustrade at the access points to the dance floor provided another visual cue to the location of the step (Blue 460M-Q).

35 Both Mr Burn and Dr Watson were cross-examined at the trial. Mr Burn was challenged on his qualifications and expertise in the area of lighting. He conceded that he was not a designer of lighting systems but asserted that, as an engineer, he had sufficient expertise to assess whether lighting systems had been installed in accordance with relevant Australian Standards (Black 374N-P).

36 Dr Watson was cross-examined on the contrast ratio between two levels of a floor surface. He expressed the view that a dull carpet, which is a dark colour, on the one hand and a polished light wood surface on the other, would give a high reflectivity and a reasonably high contrast between the two surfaces (Black 443S-V). Dr Watson disagreed with the suggestion by the appellant's counsel that spotlights could be used as a way to increase visual cues at the step. He explained that a person approaching the step with dark adapted eyes may not in fact identify the step that is very highly lit with a spotlight, because their eyes are not light adapted to that level (Black 455D-E). Dr Watson also disagreed that a spotlight would increase the contrast ratio at the entry point of the step. He expressed the view that there was a high contrast right on the nose of the step because the gold step nosing had high reflectivity whereas the brown vinyl strips in the step nosing had low reflectivity (Black 455F-R).

37 Mr Sarlos and Dr Cooke gave evidence in an expert's conclave and were also cross-examined. Mr Sarlos accepted that there was agreement between the experts that the actual level of lighting was not a problem (Black 522Q-S). This was in reference to the lighting at the entry point to the dance floor. The essential difference between the experts was whether the step ought to have been highlighted by an aisle light as suggested by Mr Sarlos. Mr Sarlos explained that he was not suggesting that the lighting level needed to be greater than it was when dimmed; rather that there should have been some form of aisle lighting which provided a highlight for the yellow metallic nosing strip (Black 508J-Q and 509B-L).

38 Both Mr Sarlos and Dr Cooke gave evidence concerning the visual cue provided by the yellow metallic nosing strip. This culminated in the following exchange of evidence given by the experts (Black 547I-548D):

"WITNESS COOKE: ... - to me a critical thing is that the bright gold strips of the nosing construction draw the eye down to the floor level. They provide a strong visual cue which draws - tends to draw somebody's eye down to floor level. Once the eye is at that level, in my view, it is clear that there's a change of floor levels for the reasons that I've given.

AUSTIN: And I think I've asked you some questions about the reflectivity and I want to suggest to you, sir, that the nosing wasn't bright gold under subdued lighting conditions,

WITNESS COOKE: Well those are the conditions under which I saw it and that's - that's what the basis of my opinion is.

AUSTIN: Which conditions, just to clarify, you're talking about-

WITNESS COOKE: The conditions at the time of my inspection were identical to those that prevailed at the time of the incident, as far as I could establish. The candles were on the table. The bud lights were on the balustrades. They were turned on. The auditorium lighting was turned down to the level that was at the time of the incident, as far as my guide assured me was the case and under those conditions the gold strips of the nosing were highly reflective.

AUSTIN: At six to seven [lux]?

WITNESS COOKE: Yes, at the levels that - well I measured it to be slightly but at the levels that I observed at the time, yes.

AUSTIN: Mr Sarlos, do you have any comment on that?

WITNESS SARLOS: I also saw the brass and I agree that they were bright in the surrounding floors but I saw them when there was no one there and in my view it was - what I saw or what I perceived, depending on where I was standing, was that there could be a situation where there was - the brass strip didn't signify an edge, it signified a junction strip over two different materials. That's the perception that I saw.

AUSTIN: And do you agree that there was - this brass strip gave a high level of reflectivity?

WITNESS SARLOS: It gave some reflectivity. I didn't look at it for the intensity of it."

39 Thus, Dr Cooke adhered to his opinion that the nosing strip provided a strong visual cue, because the gold strips of the nosing were highly reflective even in dimmed lighting. Mr Sarlos agreed that it gave some reflectivity but was unable to express an opinion on the degree of reflectivity because he had not examined this issue.

Primary judgment

Liability

40 The primary judge noted that the respondent, as occupier, owed a duty to the appellant as a patron on its premises, but the duty did not extend to eliminating all risks (Judgment at 29). Her Honour stated the respondent's duty as being what a reasonable person, in the circumstances, would do by way of response to the foreseeable risk of injury to entrants to the respondent's premises (Judgment at 30).

41 The primary judge addressed the appellant's claim by reference to the provisions of the Civil Liability Act 2002 (NSW) (CL Act). First, she identified the risk of harm, for the purposes of the chapeau of s 5B(1) of the CL Act, as that which materialised when the appellant stumbled when she walked without looking where she was going (Judgment at 34).

42 On the question of whether the risk of harm was foreseeable (s 5B(1)(a) CL Act), her Honour observed that on one view the risk that a person will stumble if there is a change of level was foreseeable (Judgment at 35). However, she found that the appellant's accident was the only incident known to have been communicated to the respondent (Judgment at 37). Her Honour was not prepared to draw an inference either way from the absence of evidence about prior complaints, and concluded that the appellant had failed to make out the requirement of foreseeability in s 5B(1)(a) (Judgment at 39).

43 Next on the question of whether the risk of harm was not insignificant (s 5B(1)(b) CL Act), her Honour seemed to be of the view that this requirement was not made out when she observed that (Judgment at 40):

"It was difficult to say that the appellant has discharged the onus of establishing that the risk was not insignificant."

44 Finally, on the question of the precautions a reasonable person would have taken (s 5B(1)(c) CL Act), her Honour considered and rejected each of the appellant's allegations of negligence (Judgment at 46-76). Relevantly to the matters pressed on appeal were the respondent's alleged failure (a) to provide adequate lighting in the room, (b) to illuminate the step, (c) to provide visual cues drawing any, or any adequate, attention to the step, and (d) to configure the step to avoid the risk of congestion at the entrance to the dance floor.

45 As to the first matter (adequate lighting in the room), the primary judge accepted the evidence of Dr Watson (who she found was the only expert specifically qualified in respect of lighting), that the step could be identified as an easy visual task with the lighting high and dimmed, as it was when the appellant went to dance (Judgment at 51). Her Honour noted that the expert architects (Dr Cooke and Mr Sarlos) were satisfied that the lighting levels were adequate at the step to the dance floor (Judgment at 54). As already noted, the experts disagreed on whether the gold coloured step nosing with dimmed lighting was an adequate visual cue. Her Honour considered that Mr Burn's comments about lighting exceeded his expertise and were inadmissible but, even if admissible, as a matter of weight, she preferred the opinion of Dr Watson (Judgment at 56).

46 As to the second matter (lighting drawing attention to the step), her Honour found that a reasonable person in the position of the respondent would not have taken precautions against a risk of harm by the installation or use of spotlights, aisle lights, or lighting on the nose of the step (Judgment at 63).

47 As to the third matter ("visual cues" drawing attention to the step), her Honour considered the three visual cues addressed in the expert evidence - (a) the contrast between the polished timber dance floor and the carpeted area where the tables were placed, (b) the rail around the dance floor highlighted with bud lighting, and (c) the "gold coloured" nosing on the edge of the step down to the dance floor signalling the change of level - and found (Judgment at 72):

"I find no deficiency or breach of duty in the provision, or quality, of the 'visual cues' indicating the existence of this step, either generally or in the particular lighting that prevailed on the night. The cues were entirely adequate and sufficient. They failed to draw the plaintiff's attention to the step because the plaintiff paid no heed and did not look where she was walking.

I find that a reasonable person in the position of the defendant would not have taken precautions against a risk of harm by the installation or use of different or additional 'visual cues' drawing attention to the existence (and location) of the step. There was thus no failing to take relevant precautions against a risk of harm."

48 As to the final matter (Mr Sarlos' proposal for redesign of the step to ensure single lane traffic rather than a right angle step), the primary judge rejected this suggested precaution. Her Honour reasoned that measures that could have been taken to prevent collisions upon entry to the dance floor were not relevant as congestion at the entrance point was not the cause of the appellant's fall. Her Honour referred to her earlier findings, based on Mr van Zanten's evidence, that the dance floor was "not crowded around the entrance as such" (Judgment at 74).

49 Her Honour also observed that reducing the entrances to the dance floor would have the corresponding effect of increasing the use (density) at the remaining entrances, even if the reduction was not in number but in size or dimensions of the entrances. Accordingly, her Honour considered that Mr Sarlos' proposal for redesign of the step to ensure single lane traffic rather than a right angle step might reduce visibility of the step rather than increase it, and this would be counter-productive. Her Honour found that a reasonable person in the position of the respondent would not have blocked off one side of the relevant corner entry to the dance floor as a precaution against a risk of harm (Judgment at 76).

Causation

50 The primary judge accepted the evidence of Dr Watson that if someone was not looking directly at the step because they were visually distracted, there was no way that a lighting engineer could force them to look at the step, thus rejecting the proposition that a visual cue in terms of lighting on the step would have assisted in identifying the step (Judgment at 17).

51 The primary judge found that the appellant's own actions in failing to look where she was going, or blithely (or perhaps blindly) following her friend and paying no heed to where she walked, was the cause of her injury (Judgment at 17).

52 The primary judge addressed the suggested precautions which the appellant ultimately contended for in terms of lighting, namely: aisle lighting or spotlights or some form of illuminated nose edging. Her Honour accepted the evidence of Dr Watson and Dr Cooke that there was no need for any such precautions. Her Honour stated (Judgment at 41):

"But the real deficiency in the plaintiff's evidence lies in the causation element. There is no reliable evidence that I accept that any of that type of lighting would have made a scrap of difference in this particular case."

Damages

53 Although finding no relevant breach of duty, the primary judge nonetheless quantified the appellant's claim for loss. Her Honour assessed the appellant's claim for non-economic loss at 21% of the most extreme case, that is, a sum of $24,000. The parties agreed that past out-of-pocket medical expenses totalled $2,935, and her Honour would have awarded the appellant the sum of $5,000 for future out-of-pocket medical expenses by way of a cushion. This was in circumstances where the appellant had abandoned the claim for surgery on her left ankle in her final submissions (Judgment at 98-99). There was no challenge to these assessments.

54 The primary judge assessed damages for past economic loss of $2,464 (being the amount conceded by the respondent), but otherwise rejected this claim in respect of the period from 31 July 2011 when the appellant stopped working. This assessment was not challenged. However, the appellant did challenge her Honour's finding that the appellant stopped working for reasons not connected with the injury sustained in this accident, and as a result of her husband's urging (Judgment at 106). This finding was relevant to both the claim for past and future economic loss.

55 The primary judge considered that there was no reliable evidence supporting the claim for future economic loss, but would have awarded the appellant $20,000 by way of a cushion (Judgment at 109). The award of a cushion was challenged on appeal.

56 Finally, the primary judge rejected the appellant's claim for past gratuitous care because it did not satisfy the threshold in s 15(3) of the CL Act of at least six hours per week for a period of six consecutive months. Her Honour noted that the appellant had returned to work as a part-time farmhand after four months; did not accept the appellant's evidence, or that of her husband, concerning the assistance provided to her by her neighbour; drew a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference in relation to the absence of evidence from the neighbour that nothing she could have said would have assisted the appellant's case; and noted that the need for domestic assistance was not suggested in the appellant's medical evidence (Judgment at 110,113 and 115). The rejection of the claim for past gratuitous care was challenged on appeal.

57 Her Honour rejected the claim for future gratuitous care on the grounds of lack of pleading and absence of evidence (Judgment at 116). This assessment is not challenged.

Issues on appeal

58 The third further amended notice of appeal raised 23 appeal grounds. The issues raised by those grounds may be conveniently grouped as follows.

59 First, whether the primary judge demonstrated actual bias during the hearing, or demonstrated actual or apprehended bias in the judgments themselves (Grounds 1 and 2).

60 Secondly, whether the primary judge failed to properly evaluate the evidence, engage the theory of the appellant's case, and properly evaluate the appellant's submissions (Grounds 3, 4, 5, 7, 8, 9, 10,11,12, 13 and 15).

61 Thirdly, whether the primary judge erred in drawing a Jones v Dunkel inference based on the absence of evidence from Ms Snoey whom the appellant followed to the dance floor (Ground 6).

62 Fourthly, whether the primary judge erred in her assessment of causation of injury (Ground 14).

63 Fifthly, whether the primary judge erred in her assessment of the hypothetical damages for future economic loss and past gratuitous domestic care and assistance (Grounds 16 to 20).

64 Sixthly, whether the primary judge erred in her discretionary judgment in ordering indemnity costs against the appellant (Grounds 23 to 25).

Issue 1 - Prejudgment

65 The appellant contended that the primary judge demonstrated actual bias during the hearing, in the form of prejudgment, or actual bias or apprehended bias in the judgments themselves, again in the form of prejudgment.

66 The appellant did not press appeal ground 1 insofar as it asserted apprehended bias during the hearing. Counsel for the appellant acknowledged that the appellant's conduct at the trial in not raising an objection to the primary judge continuing to hear the matter amounted to a waiver of any objection on the ground of apprehended bias during the hearing.

67 The appellant did not contend that the prejudgment alleged in this case was intentional. Counsel for the appellant submitted that actual bias may exist subconsciously even if the primary judge did not intend or did not know that she had prejudged the case. The respondent did not submit to the contrary.

Actual bias

68 A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.

69 Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].

70 As Gleeson CJ and Gummow J observed in that case at [71]:

"The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion."

71 In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

72 His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.

73 The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290:

"The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned."

74 The circumstances in which actual bias can be demonstrated solely from the published reasons for decision must be considered to be rare and exceptional: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 at [38] per von Doussa J, who explained:

"... Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing or ... an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias." [Citations omitted.]

Apprehended bias

75 A judge should not sit to determine a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question to be determined: Michael Wilson & Partners Limited v Nicholls & Others at [31].

76 The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge, as is necessary on an inquiry about actual bias: Michael Wilson & Partners Limited v Nicholls & Others at [33]. Accordingly, this Court is not required or permitted to form a view as to whether the primary judge could be relied upon to determine the case impartially and on the evidence before her: Rouvinetis v Knoll [2013] NSWCA 24 at [24] per Basten JA (Ward and Barrett JJA agreeing).

77 An allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners Limited v Nicholls & Others at 446 [67].

78 It is necessary to keep in mind that claims of apprehension of bias are to be considered in the context of ordinary judicial practice. Active case management, as part of modern litigation, often requires that trial judges intervene in the conduct of cases. Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. Accordingly, the expression of tentative views, which reflect a certain tendency of mind of the judge, are not on that account alone to be taken to indicate prejudgment. Moreover, counsel are usually assisted by hearing the judges' tentative opinions on matters in issue and being given an opportunity to deal with them: Johnson v Johnson [2008] HCA 48; 201 CLR 488 at [13] (a case of alleged apprehension of bias) which referred to earlier comments in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 571 (a case where actual bias was alleged).

Waiver of objection

79 It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias: Michael Wilson & Partners Limited v Nicholls & Others at 449 [76]; Vakauta v Kelly at 577-579 per Dawson J.

80 Whether the conduct of a party, by standing by, will amount to a waiver of any objection to the trial judge's continuing to hear the matter will depend upon the circumstances. An objection need not necessarily be made in formal or even explicit terms. "The circumstances may be such that it is plain, without it being put into words, that a judge is being asked to consider his position having regard to the requirement of impartiality": Vakauta v Kelly at 577 per Dawson J.

81 However, the waiver of an objection on the grounds of apprehended bias during the hearing does not preclude such a claim being subsequently made in respect of the published reasons for judgment if the judgment itself contains comments conveying an appearance of impermissible bias to a reasonable lay observer: Vakauta v Kelly at 573 per Brennan, Deane and Gaudron JJ and at 579 per Dawson J.

Actual bias during the hearing not established

82 The appellant's complaint of actual bias during the hearing relied upon certain actions and comments by the primary judge (a) on the first and second day of the trial (20-21 June 2012) when dealing with the appellant's objection to the tender of the Cooke report, and related questions concerning an amendment to the pleading and an adjournment of the trial; (b) on 15 October 2012 concerning what would occur if the respondent's costs in respect of the June amendment to the particulars to the pleading were not paid by 26 October 2012; and (c) on 23 November 2012, being the final day of evidence, when ruling on objections during cross-examination of Dr Cooke.

83 Counsel for the appellant accepted that individually none of the incidents complained of demonstrated actual bias. The appellant relied upon the cumulative effect of the incidents, and submitted that it was clear by the final day of evidence on 23 November 2012 that the primary judge had closed her mind to the evidence and any arguments which would be presented by the appellant in final addresses. It may be accepted that the conduct of the primary judge during the hearing may be viewed cumulatively: Vakauta v Kelly at 579 per Dawson J; Johnson v Johnson at [79] per Callinan J.

84 The question is do the facts make out a case of actual bias during the hearing? In my view, while the conduct of the primary judge exhibited error and, at times, wrong-headedness in certain procedural rulings, and some of her Honour's remarks were inappropriate and regrettable, this does not translate into a finding of actual bias. Let me explain why.

Events of 20 and 21 June 2012

85 The first matter to address are the events of 20 and 21 June 2012. The context was as follows. The trial had been fixed to commence on 20 June 2012 for three days. At the commencement of the hearing, and before any oral evidence was led, each party tendered their respective medical reports and expert engineering reports. The respondent sought to tender the Cooke report which had been served on 6 June 2012. Counsel for the appellant objected to its tender on the ground that it was late and had not been served in accordance with r 31.28 of the UCPR. The terms of that rule relevantly provided:

"31.28 Disclosure of experts' reports and hospital reports

(cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3)

(1) Each party must serve experts' reports and hospital reports on each other active party:

(a) in accordance with any order of the court, or

(b) if no such order is in force, in accordance with any relevant practice note, or

(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.

(3) Except by leave of the court, or by consent of the parties:

(a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and

(b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and

(c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:

(a) that there are exceptional circumstances that warrant the granting of leave, or ...".

86 At a status conference on 22 February 2012, the respondent was ordered to file and serve any expert's reports on or before 16 April 2012: see par 5 of Consent Orders. The Cooke report was served on the appellant's solicitors on 6 June 2012 and so did not comply with the requirement of r 31.28(1)(a). Nor indeed did it comply with the 28-day requirement of r 31.28(1)(c).

87 In these circumstances the Cooke report was not admissible, except by leave of the Court or by consent of the parties: r 31.28(3). Since the appellant did not consent, the leave of the Court was required. Such leave was not to be given unless the Court was satisfied that "exceptional circumstances" existed that warranted the grant of leave: r 31.28(4).

88 When objection was taken to the tender of the Cooke report on the ground of late service, the primary judge asked counsel for the appellant whether there was a timetable for the service of expert reports and was the respondent in breach of it. Counsel for the appellant initially replied that there was a timetable, then referred to a "subsequent sort of timetable made", and when pressed by the primary judge answered that the respondent was not in breach. The correct answer should have been "Yes", having regard to the orders made by the Court on 22 February 2012. Nevertheless, counsel for the appellant maintained his objection on the basis that the Cooke report was introducing a new field of expertise, an architect as distinct from an engineer, and r 31.28 applied so that the report was inadmissible unless the Court granted leave and leave could only be granted if there were exceptional circumstances justifying its admissibility.

89 Despite having been referred to the relevant rule by counsel for the appellant, her Honour ignored it. It does not appear from the transcript that her Honour even read the rule to which she was referred. Her Honour's approach was that the rule could be bypassed by adjourning the hearing for 28 days. Her Honour indicated that the appellant would be entitled to an adjournment for the purpose of considering the late report from Dr Cooke, but would not be entitled to serve any report from an architectural expert without leave, and that this would amount to a reopening by the appellant of her case in chief, with the result that if the respondent sought an adjournment to deal with that report it would be at the appellant's expense.

90 The following exchange recorded in the transcript (Black 23-24) reflects her Honour's attitude:

"HER HONOUR: Right, you and I are going to have different views on the subject. I'm going with the old-fashioned rules.

AUSTIN: Certainly. All right. Now the next step, your Honour, is rule 31.28.

HER HONOUR: And the point of that is?

AUSTIN: That the defendant needs to demonstrate to you that there are exceptional circumstances to rely upon [Dr Cooke].

HER HONOUR: Why do they have to do that?

AUSTIN: Well, r 31.28 provides that expert must be served in accordance with an order of the Court or in the absence of an order of court, in accordance with the relevant practice note.

HER HONOUR: Thank you.

AUSTIN: Or, in the absence of either, 28 days before a hearing.

HER HONOUR: We can do it by the rules if you like and it'll be really simple. The defendant needs an adjournment to fix its 28 days. You don't get the right to respond to it and you can't rely on anything without leave. We'll do it by the book.

AUSTIN: That's fine.

HER HONOUR: All that will achieve is we'll stand it over to match our 28 days absolutely on rule, and you will not be allowed to respond to it.

AUSTIN: I am just concerned about costs, that's the only issue I'm concerned with.

HER HONOUR: Well, you are going a good way to turn costs into the reason why you are locked out from defending your own case. That seems to me to be a very unwise approach.

AUSTIN: All right, your Honour, I just-

HER HONOUR: Why don't we move past costs to deal with the-

AUSTIN: I have. Would your Honour reserve costs then?

HER HONOUR: No.

AUSTIN: Because I think affidavit evidence needs to be put on.

HER HONOUR: No, because if you want to seek an adjournment because they've served the report too late, you can do that. We'll adjourn 28 days will pass, we'll resume. They'll pay for the costs incurred. You, however, will not be allowed to serve any evidence without leave.

AUSTIN: Right.

HER HONOUR: You won't get it when they've paid costs.

AUSTIN: Your Honour can't go about it that way, with respect. Your Honour has to give the plaintiff an opportunity-

HER HONOUR: No, I don't.

AUSTIN: To meet the defendant's case.

HER HONOUR: No, no, actually I don't.

AUSTIN: It's a situation-

HER HONOUR: You challenged how to run your case. What you want to do is-"

91 A little later the transcript (Black 25) records:

"HER HONOUR: Please. Please, if you want to do it by the rules they'll have to pay for time wasted, that's true. If you want to do it by the rules, they'll pay for time wasted and you won't get to meet it. Which do you want? Costs or meet it? It's really as simple as that. This should not be a debate about costs. This should be a debate about what do you need to do?

AUSTIN: Excuse me, your Honour, I've seek [sic] instructions. Your Honour, we'll take the costs option, and if your Honour would give detailed reasons about those costs I'd be happy to-

HER HONOUR: The application is what? Make it clear, please.

AUSTIN: The application is to adjourn the case so that the plaintiff can obtain evidence from, firstly, Mr Burn dealing with Dr Cooke's report and secondly, most probably obtain expert evidence from an architect dealing with Dr Cooke's report.

HER HONOUR: Is there anything further you want to say about it?

AUSTIN: No, no.

HER HONOUR: I don't need to hear from you all. We'll do this."

92 Her Honour then gave a short ex tempore judgment in which she indicated that at the conclusion of the lay evidence she would adjourn the matter on the appellant's application for a period of 15 days and then the hearing would resume. Her Honour reserved the question of costs pending the tender of Mr Burn's response to the Cooke report. Her Honour indicated that, if admissible, it would be in reply and it may be that the respondent should bear the costs of the adjournment. As to the appellant adducing further expert evidence from an architect (in reply to the Cooke report), her Honour noted that the respondent might, possibly at the appellant's cost, seek an adjournment in order to respond to that report, but again she reserved the question of costs.

93 The outcome on 21 June 2012 was that her Honour admitted the Cooke report without granting leave to do so, and in the absence of exceptional circumstances being established by the respondent as required by the rule, to which her Honour's attention had been drawn by counsel for the appellant. (As to the meaning of "exceptional circumstances" see the consideration of these words by Campbell JA in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66] (Tobias JA and Handley AJA agreeing) in relation to the predecessor provision in the UCPR.)

94 The primary judge treated the requirements of the rule as, in effect, irrelevant and something that could be bypassed by an adjournment rather than by requiring the respondent to demonstrate that there were exceptional circumstances justifying the admissibility of the Cooke report. This was clearly an error. This error was compounded by her Honour's view that any architectural report in reply sought to be tendered by the appellant would be reopening its case in chief, as to which the appellant would require not only leave but also, if a further adjournment was sought by the respondent to deal with it, that it would be at the appellant's expense. Yet the source of this problem was the late service of the Cooke report, otherwise than in accordance with r 31.28.

95 To a large extent the events of the first day of the trial were overtaken by those on the following day (21 June 2012) when counsel for the appellant sought to amend the statement of claim by the addition of one particular of negligence. The circumstances leading to this amendment were that counsel for the appellant had informed her Honour that it was difficult to amend the particulars as he had not at that point obtained any expert architectural evidence in response to the Cooke report. When pressed by her Honour as to whether an amendment was to be sought, counsel for the appellant sought an adjournment to take instructions, and subsequently he informed her Honour that the additional particular (which asserted failure to provide access by provision of a ramp and a handrail) was being added as a consequence of discussion with a proposed lay witness. The consequence of the amendment was that the respondent sought an adjournment of the hearing. Her Honour granted an adjournment and ordered the appellant to pay the respondent's costs thrown away by reason of the amendment and the adjournment "forthwith". The intended meaning of "forthwith" is not clear, but the transcript (Black 101-102) records the following explanation given by her Honour:

"... so, when I say payable forthwith, I actually mean forthwith in the English sense of that word rather than the legal sense of that word: ie, I mean that they will be paid before the 29th, in fact there won't be an argument about it, because I do not intend to hear. We have started an assessment process where at the end of three years we will continue the argument about a disbursement, because an assessment report is a disbursement you don't get to argue with.

So, if there is a disbursement payable, that is what you might call a forthwith and for real, being paid no later than the Friday before we resume, which I think is 26 October because if we don't, no doubt we'll all be hearing about the word indemnity or abuse ... I made a whole series of rather irrelevant orders yesterday and I vacate the lot of them, because they're all pointless ...".

96 The result at the end of the second day of the hearing was that the proceedings were adjourned to 29 October 2012. The terms of the costs orders made by her Honour, apparently in Chambers, were as follows:

"13. The plaintiff forthwith to pay the defendant's costs incurred and thrown away by reason of the amendment and adjournment - costs assessable forthwith.

14. The plaintiff to day [sic] the defendant's costs (especially the defendant's experts costs) thrown away before resumption of the hearing by Friday 26 October 2012.

15. If such costs not paid as per above orders, reserve the defendant's rights to seek indemnity costs and reagitate question of abuse of process."

97 As to order 13, it is difficult to understand how an order for payment of costs "forthwith" could be made consistently with an order for costs to be assessable "forthwith".

98 As to order 14, this seems to have been predicated upon the unwarranted assumption that any costs assessment would be completed prior to 26 October 2012, and that disbursements, such as the defendant's expert's costs could not be challenged in a costs assessment. It also seems to involve an unwarranted assumption that the costs of the Cooke report had been wasted by reason of the adjournment. How that might be so is entirely unclear in circumstances where the basis for the adjournment was to enable the respondent to reply to any architectural evidence obtained by the appellant in response to the Cooke report. Nonetheless, these costs orders were not ultimately challenged on appeal.

99 Notwithstanding the error by her Honour in admitting the Cooke report on the first day of the trial, her misconception concerning the need for the appellant to reopen its case in chief to lead evidence in response to the Cooke report, and her failure to take into account the late service of the Cooke report when ordering costs of the amendment and the adjournment on 21 June 2012, in my view, none of these matters, whether taken individually or cumulatively, establish actual bias by the primary judge. They reflect error and a degree of wrong-headedness in her Honour's approach to procedural matters and the exercise of her Honour's costs discretion. They do not demonstrate that the primary judge had embarked on the case with a closed mind, not open to persuasion in respect of the substantive issues for determination.

15 October 2012

100 The appellant's next complaint concerned the events of 15 October 2012 when counsel for the appellant sought a further amendment to the statement of claim to add an additional particular of negligence. This particular was based upon matters contained in the architectural expert report which had been obtained from Mr Sarlos. Her Honour allowed the amendment and ordered the appellant to pay the respondent's costs of the application to amend.

101 The amendment concerned a recommendation by Mr Sarlos that the right angle corner step in the dance floor should have been reconfigured as a single entrance. Her Honour expressed some difficulty in understanding the amendment, as did counsel for the respondent. Ultimately her Honour required the appellant to append the relevant pages of Mr Sarlos' report to the amended statement of claim for the purpose of identifying what was being alleged.

102 Up to this point, nothing said by her Honour on this occasion was complained of as displaying a lack of impartiality. Indeed, no complaint was made on appeal in respect of the order that the appellant pay the respondent's costs of the application to amend.

103 The appellant's complaint was directed to remarks made by her Honour on this occasion concerning the appellant's non-compliance with the earlier costs order made on 21 June 2012. The issue of whether those costs had been paid was raised by her Honour. Counsel for the appellant stated that the costs had not been paid and asked her Honour to quantify those costs because the respondent's claim of $45,000 was considered by the appellant to be excessive. Counsel for the appellant informed her Honour that there was no issue about paying disbursements and the expert's report, but the appellant was not in a position to pay the respondent's costs, whether it be $45,000 or $30,000. Her Honour responded by indicating that she would give consideration to staying the further hearing set down for 29 October 2012, if the 21 June 2012 costs order had not been paid by that time.

104 The transcript (Black 103.22) records the following exchange:

"HER HONOUR: So are you basically saying you won't pay the costs thrown away.

AUSTIN: Well, she --

HER HONOUR: Here is the condition of the order if you can't pay it then the hearing will be stayed.

AUSTIN: I think it will have to be your Honour. I think - my --

HER HONOUR: Don't you think you should have actually said that a long time ago preferably in June before more time and money was wasted.

AUSTIN: Well look your Honour, we are in a position to pay the costs of the disbursements. Now if the costs can't be assessed and I guess an agreement reached before the hearing, then I just don't know how."

105 Her Honour clearly foreshadowed to the parties her likely attitude if the earlier costs order had not been paid by the 29 October 2012. However, this did not involve prejudgment, as her Honour could always change her mind. This is in fact what occurred when the hearing resumed on 29 October 2012, and the appellant had still not paid the respondent's costs of the amendment and the adjournment on 21 June 2012. Her Honour did not stay the proceedings. She took the view on 29 October 2012 that it was preferable to continue with the hearing and that it was irrelevant that the appellant had not complied with the earlier costs order.

106 Ultimately her Honour granted an adjournment on that day, at the request of the respondent who was not ready to proceed, and reserved costs of the hearing on 29 October 2012. No complaint is made in relation to her Honour's conduct on this occasion.

23 November 2012

107 The final matter in respect of which complaint is made by the appellant are comments and rulings on objections by the primary judge on the last day of evidence, on 23 November 2012, during cross-examination of Dr Cooke by counsel for the appellant. The objections related to the relevance of certain questions put to Dr Cooke concerning distraction of persons in a crowded promenade leading up to a football stadium, and the degree of attention one would expect of users of a shopping mall or a commercial building.

(a) Time wasting remark

108 Her Honour initially allowed this line of questioning, although on at least two occasions she indicated that she did not consider the questions relevant but it would be "quicker and easier to let you waste the time", being a reference to counsel for the appellant (Black 525R and 527Y).

109 Counsel for the appellant submitted on appeal that the objections by counsel for the respondent were captious and her Honour's comments demonstrated prejudgment. I disagree. The objections to these questions were not improper. The relevance of the questions may be highly doubted. Nonetheless, her Honour took the pragmatic course of allowing this line of questions for a period of time, as counsel for the appellant had contended that it had adjectival relevance.

110 Her Honour's remark that the questions put to Dr Cooke were, in effect, a waste of time was, however, inappropriate and discourteous. Her Honour could have made her point about relevance, and the need for focused cross-examination, without descending to personal reflections on the conduct of counsel for the appellant. No doubt her Honour's remark reflected a degree of irritation and impatience at the length of time taken with the trial generally, which had initially been fixed for three days, and after two adjournments had been fixed for a further five days. This however does not justify addressing counsel for the appellant in such a manner.

111 This is not to say that a trial judge is precluded from ever expressing views to counsel concerning time wasting. A trial judge's responsibility in the conduct of proceedings includes ongoing active case management during the trial, particularly in busy court lists such as in the District Court. Nonetheless, a judge must be careful to avoid comments about a party's counsel which might be misapprehended as suggesting a lack of impartiality or neutrality.

112 In this case, I do not consider that her Honour's remarks concerning time wasting could, on any view, be taken as demonstrating actual bias in the form of prejudgment. This is because there is no logical connection between describing irrelevant questions as time wasting and the assertion of prejudgment.

(b) Irrelevant questions

113 The second aspect of this complaint related to her Honour's remarks that Dr Cooke's views on certain questions put by counsel for the appellant were "interesting, might be fascinating, even though it's irrelevant" (Black 538W). This comment related to questions concerning the probability that the respondent's auditorium was designed with steps because it is multi-functional and used as a theatre.

114 Despite objections to the relevance of such questions by counsel for the respondent, her Honour generally permitted this line of questions, until the cross-examiner turned to the topic of the use of aisle lighting in the Seymour Centre when the lighting is subdued. Dr Cooke indicated that he had never been inside the Seymour Centre. Her Honour refused to permit questions relating to lighting in the Seymour Centre (Black 541U-Y). She was correct to so rule. There was no basis upon which Dr Cooke could give admissible evidence on this topic. Her Honour's remark that such questions were irrelevant was accurate. This did not reflect a lack of impartiality or neutrality.

(c) Form of questions

115 Complaint was also made by the appellant concerning the way in which her Honour dealt with objections to the form of certain questions put by counsel for the appellant. One such question was framed in terms of a "normal entrance" to the dance floor not being at 90°. Counsel for the respondent objected to the use of the word "normal". Her Honour asked counsel for the appellant to reframe the question by defining his intended meaning of "normal". Counsel for the appellant reframed the question, and her Honour allowed the question over further objection by counsel for the respondent (Black 550O-Y). Her Honour's dealing with this objection could not in any way be taken to suggest prejudgment or prejudice.

(d) Ruling on objection to questions

116 Finally, complaint was made in relation to remarks made by her Honour when counsel for the appellant returned to questions to Dr Cooke concerning crowding at the entrance to a football stadium. (The appellant submitted on appeal that these questions were relevant as relating to general human behaviour and ambulation.) Counsel for the respondent objected to these questions and her Honour disallowed the questions. The following exchange is then recorded in the transcript (Black 553):

"AUSTIN: So her Honour is not going to allow me to pursue this line of questioning?

HER HONOUR: No, I am not going to discuss football stadiums.

AUSTIN: The Court pleases.

HER HONOUR: Feel free to note that I will sign it on the appeal paper, you can add it to your list, the word is Football, capital F, I'm talking about all versions, Stadium, capital S. Shall we continue?"

117 Her Honour's remarks explaining her ruling are regrettable. She should not have spoken to counsel for the appellant in those terms. Such display of impatience, irritation, and rudeness fell well short of desirable standards of judicial conduct. That however does not establish actual bias. Loss of impartiality and neutrality would not be made out from a short and emotional exchange at the end of a long trial and weighed in isolation: Galea v Galea (1990) 19 NSWLR 263; SZURI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [94] per Allsop CJ.

118 Her Honour was entitled to limit - where appropriate and justified - cross-examination of any witness, including expert witnesses. Significantly, her Honour's evidentiary ruling has not been challenged on appeal. No logical connection has been shown between her Honour's unfortunate remarks when giving this ruling and the assertion of prejudgment. Her Honour's remarks do not demonstrate prejudgment of the issues.

119 In my view, the claim for actual bias during the hearing must be rejected.

Waiver of objection during the hearing

120 As the appellant has failed to make out its claim of actual bias, the question of whether the failure of counsel to object at the trial amounted to a waiver of the objection does not arise, but I will express my views briefly as the issue was argued by the parties.

121 First, as noted above, whilst an objection need not be made in formal or even explicit terms, an allegation of actual bias would require counsel for the appellant to have given sufficient indication that the primary judge was being invited to disqualify herself: Vakauta v Kelly at 577 per Dawson J.

122 Secondly, whilst the appellant relied upon the cumulative effect of certain conduct of the primary judge during the hearing as demonstrating prejudgment, the appellant's case on appeal was that her Honour's prejudgment was evident by the final day of evidence on 23 November 2012. The appellant was represented by counsel, but did not raise or pursue the issue in court prior to the commencement of final addresses on 7 December 2012.

123 Accordingly, the appellant should be taken to have waived the right to subsequently object, to the extent that (contrary to my view) there may have been actual bias during the course of the hearing.

Apprehended bias or actual bias in the judgments not established

124 The appellant next contended that certain remarks and errors and faulty reasoning in the judgments themselves demonstrated apprehended or actual bias in the form of prejudgment.

125 It is convenient to first consider the claim of apprehended bias in respect of the reasons for judgment. If this claim is not made out, then the more onerous claim of actual bias cannot succeed.

126 The allegation of apprehended bias in respect of the judgment given on 19 December 2012 does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. Hence, the reasons for judgment subsequently delivered on 14 May 2013 in respect of the special costs order cannot be used to "somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias" at the time of the earlier judgment: Michael Wilson & Partners Limited v Nicholls & Others at 446 [67]-[68].

127 The relevant question is whether a fair-minded lay observer might reasonably apprehend that the primary judge might not have decided the appellant's case impartially or without prejudice. For the reasons that follow, I am of the view that the appellant does not make out her case.

(a) Judgment - 19 December 2012

128 In oral argument, counsel for the appellant identified various criticisms of her Honour's reasoning as demonstrating that her Honour's mind at the time of judgment was closed, and not open to persuasion. Counsel for the appellant described the judgment as being one-sided; complained that the primary judge had accepted the respondent's submissions, and rejected the appellant's submissions; complained that the primary judge had erroneously framed the matter for determination as being whether the appellant was looking where she was going; asserted that the primary judge demonstrated cognitive prejudice by oversimplifying the issues for determination; complained that her Honour had ignored concessions made in cross-examination by Dr Cooke and Dr Watson, and had discounted Mr Sarlos' evidence; and complained that her Honour had misconceived the appellant's case on lighting by placing inappropriate weight on the concession that the overall lighting was adequate, thus demonstrating that she had closed her mind to the appellant's submissions.

129 These complaints replicated the grounds of appeal which are dealt with under Issues 2, 3 and 4 below.

130 In my view, none of these complaints establish that the primary judge demonstrated apprehended bias in her first judgment. The matters complained of all relate to whether her Honour erred in determining the appellant's claim. The appellant's submissions mistakenly conflated her complaints with respect to her Honour's fact finding and reasoning process with a reasonable apprehension that her Honour might not have brought an impartial and unprejudiced mind to the determination of the appellant's claim. The appellant did not identify any comments or remarks in the judgment, as opposed to asserted errors, which demonstrated that her Honour might have embarked on the case with a closed mind, not open to persuasion. Simply describing a submission by the appellant's counsel or evidence given by a witness as "odd" does not demonstrate cognitive prejudice as asserted by counsel for the appellant. Whether the word "odd" was the appropriate description, it certainly was significant that the appellant's counsel largely abandoned the case insofar as it was based on the overall lighting at the step to the dance floor (Judgment at 16). Likewise, no suggestion of prejudgment could arise from her Honour's comment that evidence given by the respondent's employee, Mr Lyford, agreeing with a proposition in cross-examination that the respondent should have placed some black and yellow tape along the step was "odd" given the gold and brown/black nosing on the step. Her Honour's observation was unsurprising for two reasons. First, given the expert evidence of the highly reflective nature of the existing gold nosing step and secondly, the absence of any such allegation in the particulars of negligence.

(b) Judgment - 14 May 2013

131 The appellant's first complaint in relation to the Costs Judgment concerned the remark by her Honour: "Unfortunately, the plaintiff did not recognise the inevitable" (Costs Judgment at 20). This remark was made in the context of her Honour's finding that the Calderbank offer made by the respondent's insurer shortly after the proceedings were commenced had outlined, with sufficient particularity, the reasons why the appellant would fail. In my view, this complaint is completely without substance.

132 Her Honour's observation did not reflect that she might have prejudged the reasonableness of the appellant's refusal of the Calderbank offer when dealing with the indemnity costs application. It simply reflected her view, no doubt supported by her Honour's earlier reasons for rejecting the appellant's claim, that the claim had failed substantially for the reasons earlier identified by the respondent's insurer in the Calderbank offer.

133 Next, the appellant contended that the indemnity costs orders made by her Honour on 14 May 2013 reflected a "framework bias". This was a reference to her Honour's remarks in the Costs Judgment (at 30-31) concerning the admissibility of the Cooke report, and the adjournment that was granted on 20 June 2012. Her Honour observed that it was very difficult to see how the appellant could be taken "completely by surprise" by something of which notice had been given by the respondent on 22 May 2012. The context of her Honour's remark was that the respondent's solicitors had indicated by letter to the appellant's solicitors, dated 22 May 2012, that they would not object to the appellant serving any report in reply once the respondent had served its further report. The primary judge characterised the appellant's failure to reply to this letter as consent by silence to the course subsequently adopted by the respondent.

134 For the reasons already given, the primary judge's reasoning on this issue was clearly in error, particularly in view of her failure to consider the requirements of r 31.28. Nonetheless, this error in approach in the Costs Judgment was not shown to have any logical connection to what her Honour was required to consider when assessing the reasonableness of the appellant's conduct 10 months earlier in August 2011, when rejecting a Calderbank offer. Nor can this complaint be relied upon in support of a claim of apprehended bias in respect of her Honour's earlier rejection of the appellant's case, the subject of her Honour's December 2012 judgment.

135 Finally, the appellant contended that the Court could take into account the various incidents she relied upon in relation to the allegation of actual bias during the hearing when considering the claim of apprehended bias in the judgments themselves. In principle, remarks in the judgments may be considered in the context of remarks made earlier in the trial: Vakauta v Kelly at 579 per Dawson J. That however does not assist the appellant in circumstances where the claim of actual bias during the hearing has not been made out, and the claim of apprehension of bias during the hearing was not pressed on appeal.

136 Accordingly, appeal grounds 1 and 2 alleging actual or apprehended bias must be rejected.

Issue 2 - Failure to engage the theory of the appellant's case, evaluate the appellant's submissions and the evidence

137 The appellant complained that the primary judge did not engage and address the theory of the appellant's case, and failed to properly evaluate the appellant's submissions and the evidence. The appellant also challenged a number of the factual findings of the primary judge. It is convenient to deal with these complaints together as they are based on the underlying complaint of failure to properly evaluate the evidence.

138 Insofar as these complaints relate to the issue of breach of duty, they are dealt with below. The appellant's complaints in relation to the causation issue are dealt with under Issue 4.

Identifying the risk of harm: s 5B(1)

139 The primary judge correctly noted that s 5B(1) of the CL Act requires identification of a risk of harm, against which a person has failed to take precautions, and that it was important not to identify the risk too narrowly. No complaint is made that her Honour did not correctly state the correct test - the relevant risk must be that which materialised in the case of the injured person seeking to claim negligence (Judgment at 32): see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [7] (Basten JA) and [22]-[25] (Meagher JA).

140 Her Honour identified the relevant risk as the appellant stumbling when she walked without looking where she was going (Judgment at 34). The appellant contended that her Honour erred and should have identified the risk of harm as the risk of a person not observing the step and then stumbling off it. This accorded with the appellant's outline of closing submissions at trial (Supplementary Black 16F).

141 However, as the primary judge noted, the risk of harm was reformulated by the appellant in oral closing submissions as a risk of "stumbling down the step and suffering injury" (Judgment at 34). Her Honour observed, correctly in my view, that this formulation of the risk of harm was not particularly helpful, because any step or change of level poses a risk of stumbling, and the risk which materialised when the appellant stumbled and fell was not related to the physical layout or existence of the change in level.

142 So much was accepted on appeal by the appellant whose written submissions argued that her case was not that the step could not be made out, rather that the appellant was not focused on the ground before her, the step was unexpected, and the visual cues were insufficient to draw her attention to the step: see [197] below in relation to Issue 3.

143 In my view there was no error in her Honour's identification of the risk of harm.

Whether risk of harm was foreseeable: s 5B(1)(a)

144 Surprisingly, no appeal ground was specifically directed to her Honour's finding that the appellant had not made out that the risk of harm was foreseeable (s 5B(1)(a)). Nor did the appellant advance any written or oral submissions on the appeal directed to this issue other than a passing reference concerning appeal grounds 4 and 5 (failure to properly evaluate the appellant's submissions), that three other incidents on the night were very important in terms of "foreseeability" and "probability under s 5(b)(2)" [sic] and "whether the extant visual cues were reasonable" (Orange 20W). The reference in the submissions to "foreseeability" may be taken to be a reference to the s 5B(1)(a) requirement.

145 In this context, the appellant contended that the primary judge had failed to consider the evidence of Mr van Zanten and Mr Walmsley concerning other incidents on the night. This evidence was relevant to whether the respondent knew, or ought to have known, of the risk of harm.

Other incidents on the night

146 Contrary to the appellant's submissions, her Honour did address this evidence and the appellant's submissions based on these incidents.

147 First, her Honour addressed the evidence of Mr Walmsley, who stumbled when he cut across the dance floor. Her Honour noted that his evidence had complexities because his narration of his path of travel was inconsistent with the layout of the room (Judgment at 7). Later her Honour observed that Mr Walmsley nominated a path that was impossible. He depicted himself entering from the wrong side of the auditorium; cutting straight through one of the other rails; and ignored the change of level close to the entry (Judgment at 35-36).

148 Her Honour found that Mr Walmsley's stumble was minor; he did not fall over, nor sustain any injury (Judgment at 36). His stumble occurred before the lighting had been dimmed to the dance level. Her Honour found that his stumble was explained only by his inadvertence (Judgment at 36). This conclusion was clearly open to her Honour. Mr Walmsley's minor stumble while cutting across the corner of the dance floor was readily distinguishable from the circumstances of the appellant's fall.

149 Secondly, her Honour addressed the evidence of Mr van Zanten who described two other incidents on the dance floor. Mr van Zanten only saw one person actually stumble, and was unable to give evidence about why either of these two patrons stumbled on the dance floor (Judgment at 36-37). Her Honour observed that those stumbles may have been explained by collision or congestion on the dance floor itself as suggested by Mr Sarlos (Judgment at 37). One of the incidents observed by Mr van Zanten occurred at a distance some 1.5 metres from the step (Judgment at 36). Her Honour found that nothing was known about why these patrons stumbled. This finding was not challenged.

150 Thirdly, the primary judge addressed the appellant's submissions that these other incidents established that the respondent knew or ought to have known of the risk of harm. Her Honour found that the appellant's accident was the only one that was known to have been communicated to the respondent (Judgment at 37).

151 The evidentiary position was as explained by her Honour. There was no evidence of complaints or previous injuries (Judgment at 37). Her Honour correctly noted that this was quite different from evidence that there had been no complaints or previous injuries (Judgment at 39), referring in this context to the statement by Hoeben JA in Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserve Trust) v Thompson [2012] NSWCA 340 at [58] (Meagher JA and Tobias AJA agreeing):

"... The absence of evidence on the subject means that there could have been complaints or previous injuries, but there was simply no evidence either way."

152 Although the respondent called evidence from three employees seeking to demonstrate that the respondent had no knowledge of previous similar incidents, her Honour treated the respondent's submissions about lack of previous incidents as speculative (Judgment at 38). By this, her Honour must be taken to have meant that she was not satisfied that the respondent had established that there had been no complaints or previous injuries.

153 Her Honour concluded that the lack of evidence on this subject did not assist either party. There being no evidence that any similar accidents were known to the respondent, her Honour considered it speculative to find that the risk of harm was foreseeable (Judgment at 39).

154 Having regard to the limited way in which the foreseeability requirement was argued on appeal, no error has been demonstrated in her Honour's finding that this requirement was not made out.

Whether the risk was not insignificant: s 5B(1)(b)

155 There was no appeal ground directed to whether the risk of injury was "not insignificant" (s 5B(1)(b)). This is a little surprising, particularly in light of her Honour's observation that it was "difficult to say" that the appellant had discharged the onus of establishing this requirement (Judgment at 40). Again, the appellant did not advance any written or oral submissions on appeal directed to this requirement.

156 If it had been necessary to decide this issue, then in my view the risk of stumbling on the step in dimmed lighting by a person not looking where they were walking must, as a matter of common sense, give rise to a "not insignificant" probability of that risk occurring.

157 However, in view of the conclusion I have formed in relation to the other grounds of appeal, the absence of any challenge directed to s 5B(1)(b) requirement does not affect the outcome of the appeal.

Whether the respondent failed to take reasonable precautions: s 5B(1)(c)

158 The duty of an occupier of premises to entrants on its premises is a duty to take reasonable care to avoid a foreseeable risk of injury to entrants, bearing in mind that what is reasonable "will vary with the circumstances of the plaintiff's entry upon the premises": Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488.

159 The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, "the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case": Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35].

160 The appellant complained that the primary judge gave too much weight to the reasonableness of an expectation that other people will take care for their own safety, and either overstated or misapplied the effect of the statements of Gummow J in Dederer at [45] and the plurality in Thompson v Woolworths at [35]-[37]. In my view, this complaint is misconceived. As the primary judge correctly noted, the present case turned on its own facts (Judgment at 4). The findings by the primary judge that the appellant was not paying attention and was not looking where she was walking were uncontroversial. It was open to her Honour to give weight to both the obviousness of the risk, and the reasonableness of an expectation that the appellant would take care for her own safety. There was no error in her Honour's approach.

Factual challenges regarding circumstances of the injury

161 It is convenient in this context to address the appellant's challenges to her Honour's factual findings concerning the circumstances of the accident.

162 The first challenge concerned her Honour's finding that the appellant did not look where she was going (Judgment at 17). In my view, this challenge is unsustainable when the finding is read in context. The primary judge went on to find that the appellant did not see the step on which she came to grief because she did not look where she was walking; that she was distracted by following her friend and paying no heed to the path she was taking to the point that she did not look where she walked, which was an area right beside where she had been seated for a couple of hours (Judgment at 17). The evidence of the appellant, to which her Honour referred, justified this finding.

163 Next, the appellant challenged her Honour's finding that she was not distracted by watching people whom she felt she needed to avoid when entering the dance floor (Judgment at 17). This complaint conflated the appellant's evidence that she was distracted by following her friend (which her Honour accepted), and her Honour's finding that there was no collision involved in the appellant's fall. This later finding was based on the evidence of Mr van Zanten and the absence of evidence from the appellant concerning a collision, nor a fear of collision, nor avoiding a collision. To the contrary, Mr van Zanten, who had a clear vision of the fall, gave evidence which ruled out any collision or crowding factor (Judgment at 14). This challenge is not made out.

164 The appellant also challenged her Honour's statement that the "visual cues" at issue in this case were irrelevant. This statement was made in the context of her Honour's finding that the appellant was heedless of her own safety and the conditions in which she walked (Judgment at 17). Her Honour's statement concerning an "irrelevant" issue is properly understood as a conclusion based on her Honour's review of the expert evidence, and from her taking into account the appellant's own evidence concerning the circumstances of the accident.

165 Her Honour accepted the evidence of Dr Watson that if someone was not looking directly at the step because they were visually distracted by other matters, then visual cues could not force them to look at the step. The relevance of the visual cues was a matter which her Honour considered in the context of both breach of duty and causation. Her Honour's statement that visual cues were irrelevant in this case simply reflected her conclusions in relation to those issues.

166 It may be accepted, as the appellant submits, that it is possible for a pedestrian to take reasonable care for their own safety whilst still paying attention to people and things around him or her: Woolworths Limited v Strong & Anor [2010] NSWCA 282 per Campbell JA at [38] (Handley AJA and Harrison J agreeing). It may also be accepted that circumstances may require that the duty of care extend to taking into account, or making an allowance for, persons who act with thoughtlessness, inadvertence, misjudgement, or carelessness: Sutherland Shire Council v Henshaw [2004] NSWCA 386 per Bryson JA at [63]-[66].

167 However, none of this assists the appellant's case because her Honour accepted that the appellant was "visually distracted", in that she looked to her friend, and followed her without looking where she was going onto the dance floor (Judgment at 17).

168 The appellant's complaint that her Honour gave too much weight to the reasonableness of an expectation that the appellant would take care for her own safety must be rejected. This complaint cannot be made out in light of her Honour having:

(1) rejected the appellant's evidence that she was unaware of the obvious risk, having observed persons stepping down to the dance floor during the awards ceremony;

(2) accepted Dr Watson's evidence that the appellant's eyes had sufficient time to adapt to the dimmed light before she walked to the dance floor;

(3) found that the entrance to the dance floor was not crowded where the appellant fell; and

(4) accepted the expert evidence, in particular that of Dr Watson, that visual cues in terms of lighting drawing attention to the step would not assist persons who were visually distracted from identifying the step.

Appellant's case was not misconceived by the primary judge

169 The appellant complained that the primary judge repeatedly misconceived her case on lighting by placing inappropriate weight on the concession by the appellant's counsel that the overall lighting was adequate. Her Honour noted this concession in the Judgment (at 16, and again at 18-19), where the appellant's submissions on this issue were recorded. Her Honour correctly noted that the appellant's counsel had in closing submissions acknowledged that the overall lighting at the step was not in issue. This concession was properly made. Dr Watson, and both architectural experts, were each satisfied that the lighting levels at the step were adequate (Judgment at 54).

170 The critical issue for determination raised by the appellant was whether there were sufficient visual cues drawing attention to the step. Her Honour addressed each of the suggested precautions advanced by the appellant. It cannot be said that her Honour misconceived the appellant's case.

Evaluation of the appellant's submissions below

171 The appellant submitted that the primary judge failed to address or evaluate her submissions based on (a) the evidence of Mr van Zanten that he observed two other women stumble off the step on the same night, and the evidence of Mr Walmsley that he also did not notice the step and stumbled off it on the night; and (b) the expert evidence, including what were said to be concessions in cross-examination by Dr Cooke and Dr Watson.

172 As to the first matter, this has already been dealt with above (at [147]-[154]) in the context of whether the risk of harm was foreseeable. For the reasons given, there is no substance to the appellant's complaint that the primary judge failed to address the evidence concerning other incidents on the night, or failed to evaluate her submissions based on such evidence.

173 As to the second matter, the appellant complained that the primary judge failed to give proper or adequate weight to the opinion evidence of Mr Burn (an engineer), dismissed the opinion evidence of Mr Sarlos (an architect), and accepted without any critical analysis the expert evidence of Dr Watson and Dr Cooke.

Mr Burn's evidence

174 As already noted, the primary judge found that Mr Burn's evidence about lighting was inadmissible as he lacked relevant expertise, or alternatively as a matter of weight she preferred the opinion of Dr Watson, a specialist lighting engineer (Judgment at 56).

175 The relevant extracts of the cross-examination of Mr Burn in relation to his qualifications, and the respondent's submissions at trial on his lack of expertise, are set out in the Judgment at 54-55. It was open to her Honour on the evidence to find that Mr Burn had no expertise in lighting at all. The appellant's written submissions did not advance any basis for challenging her Honour's findings on admissibility, or the weight to be given to Mr Burn's evidence about lighting.

176 The appeal grounds relating to the evidence of Mr Burn must be rejected.

Dr Watson

177 The appellant complained that the primary judge failed to give proper or adequate weight to concessions made in cross-examination by Dr Watson. This was a reference to Dr Watson's agreement in cross-examination with the propositions that lighting contributes to a person's ability to visualise obstacles and irregularities in a floor surface, and the greater the level of luminance at the step to the dance floor the greater the ability of a person to pick up the step in his or her field of vision, and in scanning his or her environment.

178 Dr Watson's acceptance of these propositions is unsurprising. However, this did little to advance the appellant's case on whether reasonable precautions had been taken to draw attention to the step. The critical question was whether the primary judge erred in accepting Dr Watson's evidence that the lighting at the step was adequate.

Adequate lighting

179 Dr Watson gave evidence that the lighting at the step was adequate; in particular that the step was visible in the prevailing light when the lights had been dimmed for dancing (Judgment at 51-54). Her Honour had the benefit of observing Dr Watson give his evidence. She noted that he explained his reasoning carefully and thoroughly, and accepted his opinion (Judgment at 54).

180 Dr Watson also gave evidence, which her Honour accepted, that spotlighting on the step would not increase the contrast ratio between the timber dance floor and the carpeted gallery areas (Judgment at 62). As already noted (at [46]), none of the experts advocated the use of spotlights on the step. Her Honour was entitled to reject the suggested precaution of spotlighting.

181 Dr Watson was cross-examined on his opinion that there were sufficient visual cues to aid a person exercising reasonable care to observe the step. Her Honour noted that Dr Watson's view remained unshaken in cross-examination (Judgment at 64).

182 Dr Watson explained the significance of the contrast and different types of surfaces and levels of reflectivity between the polished timber dance floor and the carpeted gallery areas. Her Honour noted that Mr Sarlos' assessment on this issue was impaired by the fact that the dance floor was covered with carpet and tables at the time of his inspection of the premises, except the couple of metres of carpet he exposed in the corner of the dance floor where the injury occurred. This differed from the circumstances on the night of the accident (Judgment at 67).

183 Her Honour was entitled to accept the evidence of Dr Watson, and also that of Dr Cooke, concerning the contrast in surfaces and levels of reflectivity when the whole of the dance floor was exposed on the night of the accident, in preference to the view expressed by Mr Sarlos which was based on an inspection of the surface of the dance floor that differed from the circumstances on the night (Judgment at 68).

Aisle lights

184 Dr Cooke and Mr Sarlos gave differing views as to the need for aisle lighting. In part their difference of opinion turned on whether the step should be considered to be an aisle for the purpose of the relevant Building Code. Her Honour accepted that the step was not an aisle as defined in the Building Code, because of the absence of rows of seating, but in any event found that an aisle light would have made no relevant difference to the level of illumination on the step (Judgment at 61). It is the latter finding which is challenged on appeal. On this issue, her Honour preferred the evidence of Dr Cooke, and also of Dr Watson, that the different materials - the timber dance floor and the carpeted gallery - already supplied a relevant contrast. Her Honour's conclusion was based upon an assessment of the competing expert evidence which is set out in the Judgment at 57-61.

185 Her Honour noted in particular that Mr Sarlos was unable to say whether an aisle light would increase the contrast, or whether it would have had a chance or probability of attracting the attention of a person to the step (Judgment at 61). No error has been made out in her Honour's acceptance of Dr Watson's and Dr Cooke's evidence in preference to that of Mr Sarlos on the issue of aisle lighting.

Visual cues

186 Her Honour considered the competing evidence of Dr Cooke and Mr Sarlos on whether there were sufficient visual cues drawing attention to the step. Her Honour was correct to attribute some significance to the fact that Mr Sarlos inspected the area under conditions and lighting that did not prevail on the night. In particular, Mr Sarlos did not have the benefit of viewing the visual cues about the change of level arising from the exposure of the whole of the dance floor (the removal of the carpet), and the bud lighting around the rails (Judgment at 65).

187 Mr Sarlos gave evidence that candles on the table and bud lighting, neither of which he saw on his visual inspection, could have caused glare thus diverting a patron's attention from the step to the dance floor. Her Honour preferred the opinion of Dr Cooke who ruled out any "glare" factor, as Dr Cooke had observed the auditorium in similar conditions and lighting to that which prevailed on the night of the appellant's fall (Judgment at 66). Her Honour did not err in rejecting what she described as Mr Sarlos' speculation that the bud lights, which he did not see in use, might have created "glare" (Judgment at 69).

188 It was also open to her Honour to accept the evidence of Dr Watson and Dr Cooke that the bud lighting around the rail provided a visual cue. Her Honour correctly observed that it was difficult to place weight on Mr Sarlos' assessment of the significance or efficacy of the bud lighting as a visual cue as he did not see it at the time of his inspection (Judgment at 68-69).

189 Dr Cooke also addressed the issue of shading at the step which had been suggested by Mr Sarlos, having regard to the movement of people on and off the dance floor. Her Honour accepted Dr Cooke's evidence that the general level of illumination, although not constant, did not cause shading of any significance to occur (Judgment at 66). The appellant did not challenge her Honour's acceptance of this evidence.

Contrast and reflectivity of surfaces

190 As already noted, her Honour preferred the evidence of Dr Cooke and that of Dr Watson to the evidence of Mr Sarlos, concerning the different reflectivity provided by the polished timber dance floor compared to the dull carpeted gallery areas as providing a visual cue. Her Honour referred to the relevant evidence given in cross-examination by Dr Cooke and Mr Sarlos, noted Dr Cooke's view as being consistent with that of Dr Watson, and considered that it was relevant that the whole of the dance floor was exposed on the relevant night as the carpet had been removed (Judgment at 68). No error has been shown in this reasoning.

Step nosing

191 In relation to the visual cue provided by the "gold coloured step nosing", her Honour referred to the competing evidence of Mr Sarlos and Dr Cooke and Dr Watson. The latter two experts considered the nosing was adequate as a visual cue and highly reflective (Judgment at 71).

192 As noted above at [38]-[39], Mr Sarlos conceded in cross-examination that he had not examined the issue of the degree of reflectivity of the nosing step. This was a significant omission which impacted the weight which might be given to the evidence of Mr Sarlos concerning the visual cue provided by the gold coloured step nosing. There was no error in her Honour's acceptance of Dr Watson's and Dr Cooke's evidence that the step nosing was highly reflective and with sufficient light (even in dimmed lighting) for the step to be seen.

193 In summary, the essential issue at trial was whether the respondent had breached its duty as occupier by failing to illuminate the step down to the dance floor, or by failing to draw adequate attention to the step. The primary judge dealt with each of the particulars of negligence relied upon by the appellant, and the lay and expert evidence directed to those particulars. The contention that her Honour failed to engage and address the theory of the appellant's case or the evidence relied upon in support of it is unsustainable.

194 Each of the suggested precautions advanced by the appellant were considered by her Honour by reference to the expert evidence. Her Honour found the opinions of Dr Watson and Dr Cooke to be clear and reasoned coherently. In reaching this conclusion, she had the benefit of observing all the experts give their evidence. The appellant has not demonstrated error in her Honour's reasoning in preferring the evidence of one group of experts over the other.

Issue 3 - The absence of Ms Snoey

195 Ms Snoey, the person who the appellant followed onto the dance floor, did not give evidence at the trial. The primary judge noted that Ms Snoey's absence was unexplained, and stated that (Judgment at 7):

"... plainly she would be a significant witness on the central issue of the 'visibility' of the step in issue in the particular circumstances. I do draw the Jones v Dunkel inference and find that Ms Snoey's evidence would not have assisted the plaintiff's case.

That inference is of some significance. This is ultimately a case about what could or should have been seen on the night, which is ultimately a factual question. Ms Snoey navigated the step just in front of the plaintiff without incident (as I infer from the absence of complaint)."

196 The appellant submitted that the primary judge's reliance upon the rule in Jones v Dunkel was misplaced because there was no issue on which Ms Snoey's evidence would assist and there was nothing which the appellant was required to explain or contradict.

197 The appellant submitted that Ms Snoey's evidence was not significant because her case was not that the step could not be made out, but rather that she was not focused on the ground before her as she walked, that the step was unexpected, and that the visual cues were insufficient to draw her attention to it.

198 As explained by the plurality in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 (Kuhl):

"[63] The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. ... The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. ...

[64] The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. ...". [Citations omitted.]

199 As the appellant bore the legal onus of proof, the relevant question was whether the failure to call Ms Snoey could mean that the direct evidence of the appellant may be more readily rejected, and the inferences for which she contended may be treated with greater reserve: Payne v Parker [1976] 1 NSWLR 191 at 201 per Glass JA.

200 However, there was no direct evidence of the appellant which might more readily be rejected in the absence of Ms Snoey. The evidence of the appellant was that she would have seen the step had she looked (Judgment at 7). Nor is there any real question in this case concerning the drawing of an inference. It was not necessary for the primary judge to draw an inference in order to determine how the injury occurred, as there was direct evidence on that point. In addition to the appellant's evidence, there was evidence from Mr van Zanten who observed the whole incident and the appellant's path of travel (Judgment at 5). The failure to call evidence from Ms Snoey had no probative significance.

201 Although the primary judge misapplied the Jones v Dunkel principle, this did not lead to any error in her reasoning that there was no breach of duty. The appellant's claim that the respondent breached its duty of care did not fail because of the absence of evidence from Ms Snoey.

Issue 4 - Causation

202 The primary judge correctly noted that s 5D of the CL Act prescribed the test for causation (Judgment at 44). That section is relevantly in the following terms:

"5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

...

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

203 Referring to Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239, the primary judge correctly stated the test for factual causation: the appellant must prove, on the balance of probabilities, that the occupier's negligence was a necessary condition of her harm, although it is not necessary to prove that the taking of such action would have prevented her fall. It was sufficient if she proved that the taking of a particular action would have minimised the risk of such a fall, such that the failure to do so "was a necessary condition of the occurrence of harm" (Judgment at 45). See Kuhl at [99] (French CJ and Gummow J) and [104] (Heydon, Crennan and Bell JJ); Indigo Mist Pty Ltd v Palmer at [102]-[103] (Hoeben JA; Beazley and Macfarlan JJA agreeing).

204 The primary found that causation had not been made out, stating (Judgment at 45):

"The highest that her case rises, is the rather speculative contention that aisle lighting (or a different nosing) might have attracted the plaintiff's attention to the existence of the step. That possibility never rises above speculation, which is no substitute for evidence and inference."

205 Her Honour also correctly observed (Judgment at 46) that the possibility that doing something differently might have deterred or prevented the person suffering the harm, or taking certain steps might have made the occurrence less likely, did not satisfy the test of causation in s 5D(1) of the CL Act: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [57].

206 The issue before the primary judge and on appeal is whether the respondent's (assumed) breach of duty was a necessary condition of the occurrence of the appellant's injuries. The critical issue on causation, assuming a relevant breach of duty had been established, was whether the suggested precautions would have drawn the appellant's attention to the step, thus either preventing or minimising the risk of harm. It is sufficient that the suggested precaution, on the balance of probabilities, would have minimised the risk of injury: Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 at [35]-[36] per Basten JA (Meagher JA and Davies J agreeing); Coregas Pty Ltd v Penfold Australia Pty Ltd [2012] NSWCA 350 at [129] per Hoeben JA (Meagher JA and Bergin CJ in Eq agreeing).

207 The primary judge addressed this issue compendiously when dealing with the expert evidence on breach of duty (Judgment at 46-76). Her Honour's reasoning on breach of duty and causation is sometimes blurred, but the following emerges from her Honour's judgment.

(a) Aisle lights

208 As to the first suggested precaution (aisle lights), the primary judge found that they would have made no relevant difference to the level of the illumination on the step, and thus would have made no difference at all in the circumstances of this accident (Judgment at 61). Her Honour reasoned that there was no evidence that aisle lights would have provided any additional contrast between the carpeted gallery area where the tables were placed and the timber dance floor, or otherwise drawn attention to the step. This finding was based upon an acceptance of the evidence of Dr Watson and Dr Cooke, and the absence of evidence from Mr Sarlos that an aisle light would increase the contrast or would have had a chance or probability of attracting the attention of a person to the step (Judgment at 61). No error has been demonstrated in her Honour's reasoning in arriving at her conclusion that aisle lights would have made no difference.

(b) Step lights

209 The second suggested precaution (lighting on the nose of the step) was only advanced by Mr Burn. He had no relevant lighting experience, and her Honour found that his opinion went no higher than a suggestion for improvement which was not the relevant test for causation (Judgment at 62). This may be accepted. The appellant did not establish that the suggested action would have prevented or minimised the risk of harm to a person who was not looking where they were walking. Accordingly, there was no error in her Honour treating this precaution as no more than a speculative contention.

(c) Spot lights

210 The third suggested precaution (spotlight on the step) was floated by counsel for the appellant in cross-examination of the experts, but as already noted was not advocated by any of them. Dr Watson identified a risk inherent in the use of spotlights because a person who is coming up to the step has dark adapted eyes and a spotlight may in fact not show the step at all, because their eyes are not light adapted to that level. Dr Cooke was likewise sceptical of this suggested precaution, and Mr Sarlos rejected the notion of spotlights because of the risk of shadows being cast across the edge of the step in a crowded situation (Judgment at 62-63).

211 In my view, the primary judge did not err in her approach to the issue of causation, nor did she err in her findings that the suggested precautions put forward by the appellant for avoiding the accident (or minimising the risk of injury) did not rise above speculation.

Issue 5 - Damages

212 The appellant's challenge to the primary judge's hypothetical quantification of damages was limited to two heads of damage - future economic loss and past gratuitous care.

Future economic loss

213 The primary judge correctly noted that s13 of the CL Act requires an assessment of the appellant's prospects and adjustments in respect of any award of damages for future economic loss. The first step the court is required to determine is what the appellant's most likely future circumstances would have been but for the injury. Damages for future economic loss are to be awarded by reference to those circumstances only.

214 At trial the appellant claimed that an award of between $150-$200 per week for the balance of her working life was appropriate for future economic loss on the basis that her working capacity had been diminished by the injury to her left ankle. Immediately prior to the injury, the appellant had worked as a part-time farm hand milking cows. She had previously worked in an office/clerical position.

215 The primary judge referred to the evidence of Dr Bodel and Dr Schutz and found that there was no medical opinion that the appellant was permanently unfit for work, or subject to any long-term restriction (Judgment at 107). Her Honour found that the appellant's most likely future circumstances, but for the injury, were much the same as they were at the date of the trial, and before the accident. The primary limitation upon the appellant's employment was the desire to spend time with her child. The appellant was quite capable of some limited physical work, having worked for nine months after returning to work following her injury (Judgement 108).

216 The primary judge also found that the appellant's earnings from her physical labour were not the measure of her capacity although she had worked as a farm hand in recent years; she had clerical and administrative office skills and also had some academic capacity (Judgement 108). Her Honour rejected the appellant's evidence that she could not do clerical work/sedentary office work because of her inability to travel some distance because of pain in her left foot whilst driving. This evidence was inconsistent with the evidence of Mr van Zanten, which her Honour accepted, that the appellant attended her husband's office and brought him lunch. This involved her driving from her property a distance of about 50 or 60 kilometres (at least half an hour) each way (as estimated by her husband) (Judgment at 109).

217 Her Honour concluded that there was no reliable evidence supporting any finding of future economic loss. In these circumstances, if liability had been found, the primary judge would have awarded the appellant $20,000 by way of a cushion against the possibility of future economic loss (Judgment at 109).

Factual challenges

218 The appellant challenged certain factual findings by the primary judge when dealing with her claim for past economic loss, in respect of which there is no appeal ground. Nonetheless, it is necessary to deal with these challenges as her Honour's findings in relation to the appellant's working capacity are relevant to her claim for future economic loss.

219 The first challenge concerned her Honour's finding that the appellant had a number of physical restrictions that had nothing to do with this accident, such as restrictions introduced by her back and knees (Judgment at 102). Whilst not disputing the existence of earlier injuries, the appellant contended that there was no evidence upon which such an inference could be drawn. This contention is unsustainable. Her Honour found that the appellant had injured both knees and ankles before the accident, and was complaining of back pain long before the accident (Judgment at 81). Her Honour reviewed the medical evidence in detail relating to the appellant's various physical restrictions (Judgment at 82-86). There was no error in her Honour's finding concerning pre-existing physical restrictions on the appellant's working capacity.

220 Next, the appellant challenged her Honour's finding that the appellant had stopped working for reasons not connected with the injuries sustained in the accident, and as a result of her husband's urgings (Judgment at 103). The appellant contended that she stopped working as a relief milker because of the pain in her injured left ankle. This contention relied upon the appellant's evidence and that of her husband. Her Honour rejected the evidence of both.

221 As to the appellant's evidence, the primary judge observed that she was able to work for nine months when she returned to work after the injury, but given the range of her physical restrictions and injuries, which included injuries pre-accident, it was likely that she was not entirely suited to the physically demanding work involved in milking cows, and was more suited to office work (Judgment at 103). This finding was one which was open to her Honour on this evidence.

222 As to Mr Reid's evidence, her Honour found that the appellant acceded to his wishes that she cease work. On the issue of whether Mr Reid's lay opinion concerning pain experienced by the appellant when working should be accepted, her Honour was entitled to prefer the opinion of Dr Schutz who gave evidence that on examination the appellant had minimal symptoms only, and that it was possible, but considered unlikely, that she ceased work in the dairy for reasons of her left ankle and heel symptoms. Dr Schutz's projection was that the fractures would have healed within two to three months and the symptoms would have largely recovered by six months post-accident. Her Honour was entitled to accept this evidence.

223 The appellant challenged the finding by the primary judge that there was no medical opinion that the appellant is permanently unfit for work, or subject to any long-term restriction (Judgement at 107). The appellant submitted that her Honour ignored the obvious typographical mistake in Dr Rice's report where he recommended surgery on the appellant's right ankle rather than the left ankle. It may be accepted that this was a typographical error. Nonetheless the primary judge appears to have accepted the need for surgery of the appellant's left ankle, as she later referred to Dr Bodel's report which expressed the opinion that the appellant would be able to return to work after appropriate treatment for her ankle, and also noted that Dr Schutz was of the same view (Judgment at 107).

224 The primary judge recorded that the appellant's claim for future economic loss was made on the basis that she is unable to work in a range of capacities because of her psychiatric/psychological condition, and could not work full-time. However, her Honour found that the only reliable medical opinion was that the appellant's psychiatric condition did not impair her capacity to work. This was a reference to Dr Shan's opinion. There is no challenge to this finding. Her Honour noted that office and administrative work was significantly better paid than the farm work that the appellant preferred to undertake (Judgment at 107).

225 There is no challenge to her Honour's finding that the appellant has substantial working capacity, demonstrated in both farm labour and in office and administrative capacities (Judgment at 108). Nor is there any challenge to her Honour's finding that restrictions on the appellant's ability to travel long distance (because of the pain that driving caused in her left foot) had reduced. This finding was based on her Honour's acceptance of the evidence of Mr van Zanten in preference to that of the appellant concerning her ability to drive long distances to deliver lunch to her husband. The conclusion that there was no reliable evidence supporting any finding of future economic loss was open to her Honour on the evidence (Judgment at 109).

226 In my view, there was no error in awarding a cushion for future economic loss having regard to her Honour's factual findings, none of which have been successfully challenged.

Past gratuitous care

227 The primary judge correctly noted that s15 of the CL Act required the appellant to satisfy the threshold for recovery in respect of gratuitous attendant care services for more than 6 hours per week and for a period exceeding 6 months (Judgment 110). At trial the appellant claimed 10 hours of gratuitous care per week for part of the period after the injury and thereafter 6 hours of domestic assistance per week. The appellant claimed a total of $18,000 under this head of damages.

228 The primary judge rejected this claim on the basis that it was not made out on the evidence. In particular, the primary judge did not accept the appellant's evidence or that of her husband on this topic, particularly in the absence of evidence from the landlord/neighbour referred to as "Jenny", who the appellant claimed had provided much of the assistance during the relevant period. The primary judge drew a Jones v Dunkel inference that this person had nothing to say which would assist the appellant's case. Her Honour also found the appellant's husband's evidence to be unreliable, contrived in places, and exaggerated (Judgement 113).

229 Her Honour rejected the appellant's evidence of the need for domestic assistance as being "incredible or unconvincing" or "inherently incredible" noting that she was able to work as a part-time farm-hand for nine months after the injury, was able to walk, stand, prepare lunch, and drive 50 to 60 kilometres to her husband to deliver his lunch, sometimes weekly, and care for herself and her daughter during the day, and the medical evidence was completely silent about the need for past domestic assistance (Judgement 115).

230 The appellant's written submissions asserted that the evidence established that she received in excess of 6 hours domestic assistance per week from her friend and from her husband. However, no references to the evidence were provided. The appellant's schedule of challenged facts also asserted that the evidence supported such a finding from the date of injury to the date of trial. Again however, no references to the evidence were provided in this document, nor were any references provided during oral argument after the absence of such references had been drawn to the attention of the appellant's counsel.

231 No basis has been demonstrated on appeal for overturning her Honour's factual findings rejecting the claim for past gratuitous care.

232 The appellant's challenge to two components of the hypothetical damages assessment fails.

Issue 6 - Indemnity costs order

233 By appeal grounds 23, 24 and 25 the appellant challenged the costs orders made on 19 December 2012, as varied by the special costs orders made by the primary judge on 14 May 2013. Counsel for the appellant informed the Court that this challenge was limited to the indemnity costs order made on 14 May 2013 based on the Calderbank offer made by the respondent in a letter dated 2 August 2011. No other challenge to the primary judge's costs orders against the appellant, including interlocutory costs orders, was pursued on appeal.

Calderbank offer

234 Counsel for the respondent did not press its written submissions opposing the setting aside of the indemnity costs order based on the Calderbank offer. This concession was properly made. In my view, the primary judge erred in finding that it was unreasonable for the appellant not to accept the Calderbank offer having regard first, to the terms of that offer (which involved the respondent "waiving" $9,000 of what were described as internal costs said to have been incurred by its insurer) and secondly, to the time at which it was made (very shortly after the commencement of the proceedings and before the appellant had obtained her experts' reports). It is unnecessary to say anything further, in view of the respondent's concession.

235 It follows that appeal ground 25 should be upheld and the costs order made on 14 May 2013, which included indemnity costs as and from 18 August 2011, should be set aside.

236 For the avoidance of doubt, the preamble to the "alternative" indemnity costs order made on 14 May 2013 based on an offer of compromise under the UCPR (which order is not challenged on appeal) should be amended to delete the introductory words "Without prejudice to the earlier order by reason of the Calderbank offer, and in the alternative, but in the circumstances with no effect so long as the earlier orders remain in effect ...". Although there was no basis for making an "alternative" indemnity costs order, this preamble to order 3 is unnecessary and inappropriate once the first indemnity costs order based on the Calderbank offer is set aside.

Costs of appeal proceedings

237 The appellant has failed on all issues on the appeal other than in two limited respects, one relating to her Honour's misapplication of the Jones v Dunkel principle (but this did not lead to any error in her Honour's conclusion of no breach of duty), and the other relating to the indemnity costs order based on the Calderbank offer.

238 The second matter was dealt with only briefly in the appellant's written submissions. Essentially the appellant relied upon her submissions made below to the primary judge as to why non-acceptance of the Calderbank offer of 18 August 2011 was not unreasonable. The indemnity costs issue did not occupy any time on the hearing of the appeal, having regard to the respondent's concession.

239 In the circumstances, there is no reason why the appellant's limited success on these matters should reduce the costs payable by the appellant to the respondent in respect of the otherwise unsuccessful appeal. In my view, the appropriate order is that the appellant pay the respondent's costs of the appeal.

Is leave to appeal required?

240 By notice of motion filed 24 October 2013, the respondent sought an order that the amended notice of appeal filed 29 July 2013 be dismissed as incompetent pursuant to UCPR r 51.41. This was on the basis that the "matter at issue" on appeal was less than $100,000, and hence an appeal from the final judgment or order of the primary judge could only be made with leave of this Court: s 127(2)(c) of the District Court Act 1973 (NSW).

241 The respondent's notice of motion objecting to the competency of the appeal was not filed within 28 days after service on the respondent of the notice of appeal as required by r 51.41(1). The respondent submitted that this was only relevant to the question of costs as the Court did not have jurisdiction to hear the appeal if leave was required but had not been obtained.

242 The respondent pointed to the hypothetical damages calculation of the primary judge of $54,399 and contended that the affidavit filed on behalf of the appellant pursuant to UCPR r 51.22(2) was deficient. That rule required that the appellant file an affidavit with the notice of appeal setting out the material facts on which the appellant relied to show that the monetary restriction on appeals as of right in s 127(2)(c) of the District Court Act did not apply.

243 The appellant submitted that the affidavit of the appellant's solicitor, Mr Mancia, sworn 1 August 2013, contained sufficient material facts to demonstrate that the appellant had an arguable claim for damages exceeding $100,000. This affidavit included the schedule of damages relied upon by the appellant at trial, and references to the appellant's evidence, recorded in the judgment and the opinion of Dr Bodel, relied upon in support of the claim for future economic loss.

244 The authorities on the meaning of the expression "the matter at issue" on an appeal, as referred to in s 127(2)(c) of the District Court Act, establish that the relevant question is whether a party has a realistic prospect of changing the result by $100,000 or more. Thus, where the amount put in issue by the appellant's claim is in excess of $100,000 and it cannot be seen on the face of the documents that the result of the appeal cannot realistically involve such an amount, it is inappropriate for this Court to treat the matter as one requiring leave to appeal: Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 193 at [4] (Basten JA); Sneddon v New South Wales [2012] NSWCA 351 at [15].

245 In my view, it could not be said on the face of the appeal documents (and before embarking on detailed argument on the hearing of the appeal), that the appellant did not have a realistic prospect of obtaining damages of $100,000 or more. Taking the value of the two heads of damage challenged on appeal (future economic loss - $184,128, and past domestic care - $18,000) and the primary judge's hypothetical quantification of damages in respect of non-economic loss ($24,000), past out-of-pocket expenses ($2,935), future out-of-pocket expenses ($5,000), and past economic loss ($2,464), it was quite possible that one outcome of the appeal, if it had been successful, would have involved a variation of the primary judge's hypothetical quantification of damages by an amount giving a verdict in favour of the appellant in excess of $100,000.

246 The respondent's notice of motion objecting to competency of the appeal should be dismissed with costs.

Summons for leave to appeal - 2012/334491

247 As referred to earlier, at the commencement of the hearing of the appeal the Court dismissed the summons for leave to appeal filed on 26 October 2012 and reserved the question of costs of that summons.

248 The appellant did not pursue on the appeal any challenge in respect of any of the matters the subject of her summons for leave to appeal, being the evidentiary ruling on 20 June 2012 admitting the Cooke report, and the interlocutory costs orders made against the appellant on 21 June 2012 and 15 October 2012. In these circumstances, the appropriate order is that the applicant (Ms Reid) pay the respondent's costs of the summons seeking leave to appeal.

Conclusion and orders

Appeal - 2013/13214

249 The appeal fails on all grounds other than in the two limited respects identified above - the misapplication of the Jones v Dunkel principle (but this did not lead to any error in her Honour's conclusion of no breach of duty), and the successful challenge to the indemnity costs order based on the Calderbank offer.

250 I propose the following orders:

(1) Appeal allowed in part (in relation to the indemnity costs order on and from 18 August 2011 based on the Calderbank offer).

(2) Appeal otherwise dismissed.

(3) Set aside order 2 made by the primary judge on 14 May 2013.

(4) Amend order 3 made by the primary judge on 14 May 2013, by deleting the words "Without prejudice to the earlier order by reason of the Calderbank offer, and in the alternative, but in the circumstances with no effect so long as the earlier orders remain in effect".

(5) The respondent's notice of motion filed 24 October 2012 be dismissed with costs.

(6) Appellant to otherwise pay the respondent's costs of the appeal.

Summons for leave to appeal - 2012/334491

251 The only issue outstanding is the question of costs of the summons which has already been dismissed. I propose the following order:

(1) The applicant to pay the respondent's costs of the summons.

252 TOBIAS AJA: I agree with the orders proposed by Gleeson JA for the very detailed and thorough reasons he has expressed.

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Decision last updated: 03 April 2014