ABI-MOSLEH & ABI-MOSLEH v FANTIS
[2006] SADC 75
•29 June 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ABI-MOSLEH & ABI-MOSLEH v FANTIS & ORS
[2006] SADC 75
Judgment of His Honour Judge Anderson
29 June 2006
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS
First Plaintiff fell in yard of Defendants, the surface of which had been interrupted with Defendants' knowledge - Defendants' liability as occupiers made out.
DAMAGES
First Plaintiff sustained some physical injuries and a major psychiatric injury - assessment of damages.
HUSBAND AND WIFE
Second Plaintiff claims for consortium and pursuant to s34 Wrongs Act 1936
Wrongs Act 1936 (now Civil Liability Act, 1936) ss17C, 33 and 34, referred to.
Neindorf v Junkovic (2005) 222 ALR 631; Webb v The State of South Australia (1982) 56 ALJR 912; Dulieu v White & Sons [1901] 2 KB 699; Giorginis v Kastrati (1988) 49 SASR 371; Toohey v Hollier (1955) 92 CLR 618; Andrewartha v Andrewartha (1987) 44 SASR 1, applied.
Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Richmond Valley Council v Standing (2002) Australia Tort Reports 81-679; Burwood Council v Byrnes [2002] NSWCA 343; RTA v McGuinness [2003] Australian Tort Reports 81-688, distinguished.
ABI-MOSLEH & ABI-MOSLEH v FANTIS & ORS
[2006] SADC 75
The Plaintiffs are husband and wife. On 9 January 2001, they were conducting the business of a fish and chip shop on South Road at Croydon Park. They had been doing so since 7 April 1998. Prior to that date they had conducted the business of delicatessen owners at no less than three separate locations over several years.
The Defendants were registered proprietors of the Croydon Park building, including the rear car park.
At some time in the months prior to January 2001, the Defendants let premises adjoining those rented by the Plaintiffs for the purposes of a restaurant. Thereafter, plumbing work was undertaken at the rear of the premises and an oil or fat sump (“the sump”) was inserted in the rear car park of the property. This work is shown in the photographs in Exhibits P5 and P15.
Whilst it is not possible to say from the evidence precisely when this work was undertaken, there is no doubt, and I so find, that it was well completed by 9 January 2001.
In addition, there can be no doubt that it was undertaken with the consent of the Defendants. None of the Defendants gave evidence, but the only reasonable inference arising from the evidence is that they knew of the plumbing work and consented thereto.
The rear car park was used by tenants and customers alike. A plan of the general layout of the rear of the premises, the sump and the car park is Exhibit P1. It is not to scale. The various photographs in evidence give some dimension to that plan. There is no evidence of actual measurements relative to it in evidence.
In the Statement of Claim it is alleged that “On 9 January 2001 the First Plaintiff, whilst walking in the car park ..... tripped and fell over a concrete protrusion forming part of a concrete surround to a fat collection sump.” (Paragraph 8).
It is also alleged in Paragraph 10 of that document that there was a second fall at the rear of the shop premises on 30 January 2001. In opening the case for the Plaintiffs, Mr Bryant of counsel, abandoned this aspect of the claim and its alleged sequelae.
Mr Stratford of counsel appeared for the Defendants.
The Plaintiffs’ claim against the Defendants is in negligence and pursuant to ss33 and 34 of the Wrongs Act 1936 (now the Civil Liability Act 1936). They make this claim against the Defendants as the owners and occupiers of the relevant land. There is no issue but that, should liability be proved in every regard, the Defendants will be responsible, subject only to the Defendants’ plea of contributory negligence.
The claim based on common law negligence is the same as a claim made pursuant to s17C of the Wrongs Act and, in assessing it, regard must be had to the various matters set out in s17C(2): Neindorf v Junkovic (2005) 222 ALR 631 per Kirby J at paragraph 57.
In Paragraph 4 of their Defence, the Defendants deny that the First Plaintiff fell on 9 January 2001 as pleaded. In the alternative, there is a plea of contributory negligence (Paragraph 6).
Mr Stratford was extremely critical of the First Plaintiff, both as he was cross examining him, and in his final address. I shall come to those criticisms subsequently, but suffice it to say, and notwithstanding them, I am satisfied from the evidence of the Plaintiffs, and from the evidence of and the reports of various medical practitioners, that at about 7.45pm on 9 January 2001, in the rear car park of the Defendants’ premises, the First Plaintiff fell over. How and where he fell remains in issue.
Before I come to that event it is necessary to describe the Plaintiffs’ circumstances in life.
Both Plaintiffs were born in Lebanon; the First Plaintiff on 1 January 1943 and the Second Plaintiff on 7 July 1960.
The First Plaintiff obtained a Masters Degree in Sociology at the University of Lebanon. He then taught at the Teachers University in Lebanon and conducted an educational program on television for some years. In 1977, he and his wife migrated to Australia because of local civil unrest. Initially, they lived with his brother, who had a delicatessen with residence attached, in Daw Park. Neither Plaintiff could then speak English.
Whilst assisting his brother, the First Plaintiff learnt English. He did so for a few months and then, for less than one year, worked with his brother in North Adelaide. Thereafter, he and his wife bought a delicatessen with residence attached at Magill. They remained there for about four years. After it was sold, they bought a like business in Clearview. They remained there for about seven years and then also sold it.
It was replaced by yet another similar business in Hillcrest. That continued for some time. Unlike the earlier delicatessen, it was principally operated by the Second Plaintiff. During this time the First Plaintiff bought a taxi and leased a taxi licence plate. When the Second Plaintiff became ill, this shop was sold. The First Plaintiff continued as a taxi driver.
After a few months, and the Second Plaintiff’s recovery, she wanted to return to work. Hence the purchase of the fish and chip shop in Croydon. The First Plaintiff continued to drive his leased taxi two to three nights a week. He also employed part‑time drivers. The Second Plaintiff managed the shop from about 11.00am to 8.00pm seven days per week. From late 2000, the shop was closed on Mondays. The shop ceased to operate in March 2002.
The First Plaintiff would assist the Second Plaintiff at the shop with necessary lifting and the like when he was not taxi driving or sleeping. He had undertaken all of the necessary physical work at each of the earlier businesses without difficulty.
The First Plaintiff kept the books for this new business by each day checking the Second Plaintiff’s figures in the cash book, Exhibit P3, and also keeping the ledger, Exhibit P4. The cheque account relevant to the business is Exhibit D3. The cheque book is Exhibit P18.
The First Plaintiff paid the rent and other outgoings as required by their lease to the Defendants each month. The payments were by cheque and were timely. To the extent that there was a suggestion to the contrary, I reject it.
The Plaintiffs essentially kept their cash at home. At all relevant times they were receiving an allowance from Centrelink. It was received fortnightly in the sum of about $380.00. There is no dispute that this payment, which varied over time, was received before, during and after the Plaintiffs’ conduct of the fish and chip business. The bank statement relating to it is Exhibit P17.
It was the practice of the Plaintiffs to keep all their income in cash in a cloth money bag. Both Plaintiffs described the practice in a similar way.
The cash takings from the shop, after cash payments for supplies, as shown in Exhibit P3, had been made, were placed in the bag on a daily basis. The cash the First Plaintiff received from taxi driving was also put there after each shift worked. The Centrelink payments were converted to cash via ATM type withdrawals and placed in the bag.
All expenses were paid from this bag, which usually was in the company of the Second Plaintiff. Cash deposits were made into the cheque account on about a weekly basis, as needed. An examination of Exhibit D3 shows regular rounded such deposits. There were also monthly cash deposits into the loan account which related to the purchase of the fish and chip shop (Exhibit D1) and to the home mortgage account (Exhibit D2).
The tax returns of the Plaintiffs were prepared at all relevant times by Mr Wellby. He did so from the bank statements and the cash receipt books given to him by the First Plaintiff. The Second Plaintiff had nothing to do with the family finances in this sense and simply signed tax returns as requested by the First Plaintiff.
A suggestion arose in the evidence that the First Plaintiff, and perhaps Mr Wellby, had agreed to mis‑state the loss distribution in the 1999 taxation returns to the advantage of the First Plaintiff. The First Plaintiff denied that this had occurred. Mr Wellby also did so and said he had not received such an instruction from the First Plaintiff. He explained that the obvious error in that return was likely due to a computing program error which he had failed to notice and then rectify before the return was lodged. I am not persuaded that there was any sinister or dishonest intent behind this incorrect distribution. I accept the evidence of the First Plaintiff and Mr Wellby in this regard.
After the First Plaintiff failed to obtain employment in an area suitable to his academic background in the period after his arrival in Australia, he realised that his lot was henceforth to be a shopkeeper, and subsequently, a taxi driver, involved in the cash economy.
By January 2001, he had nearly paid off his home and had bought and sold real estate near Two Wells for a profit. He and his wife had earlier owned an investment property which they sold when they purchased their present home.
From 1982, about five years after they arrived in Australia, the Plaintiffs and their family, became patients of the general practitioner, Dr Teh. They remained with him until 2004 when they moved to Dr Duffield, where they remain. The First Plaintiff said this move related to his inability to pay gap payments required by Dr Teh. By implication, neither he nor his wife were dissatisfied with Dr Teh’s services at any time.
It is the Defendants’ position in this trial that the First Plaintiff is seeking a secondary gain, in a financial sense, in the context described by the psychiatrist, Dr Kutlaca, to whose evidence I shall subsequently come. The Defendants maintain that the First Plaintiff has no, or no substantial, physical sequelae from his fall on 9 January 2001, however it occurred, and that he has suffered no compensable loss from it. To the extent that he has a psychiatric illness, it is alleged that it is the consequence of earlier events. It is also pleaded that he has recovered sufficiently to work and no longer requires future medical treatment.
In this context, the medical history of the First Plaintiff is important. The experience of the Second Plaintiff in successfully seeking damages following motor vehicle accidents in 1994 and 1998 is also relevant as the Defendants allege that it shows that there was a history of compensation claims within the family.
The medical history of the First Plaintiff, before 9 January 2001, starts with his visits to Dr Teh.
The cross examination of Dr Teh elicited information about consultations by the First Plaintiff with him prior to January 2001.
In July 1989, Dr Teh recorded in his clinical notes, to which he referred for the purpose of giving evidence, that the First Plaintiff complained of being dizzy and of not eating. In June 1990, he reported continuation of right elbow pain and was referred to two specialists over a period of about three months. In March 1995, the First Plaintiff complained about diminishing vision and he was referred again to relevant medical specialists. In September 1998, the First Plaintiff complained of feeling tired, of a problem with his left knee and of a problem with his mandibular jaw. In November 1998, he complained of losing weight and feeling tired in the context of driving the taxi at night. Dr Teh then prescribed a vitamin injection. The need for such an injection returned in the winter and spring of 1999 when the First Plaintiff was “run down” (T634) and had chest and respiratory infections. This infection returned in February 2000 when the First Plaintiff presented with raised blood pressure. Vitamin injections continued.
In March 2000, the First Plaintiff complained of pain in his left arm and leg and headaches in the context of quite high blood pressure. As a consequence of these complaints, the First Plaintiff was referred to Dr Hughes, a general physician. One of his reports is in evidence as Exhibit D5, dated 26 April 2000. Dr Teh indicated that by this time the First Plaintiff’s major and most regular complaint was of headaches. In May 2000, the First Plaintiff indicated to Dr Teh that he was irritable, short tempered and aggressive with his wife.
He presented with high blood pressure from August through to November 2000. He was prescribed high blood pressure medication and Murelax, which is an anti-anxiety medication.
In examination in chief, Dr Teh revealed the following history post 9 January 2001.
The First Plaintiff first consulted Dr Teh after 9 January 2001 on 17 January 2001. On that day, Dr Teh recorded that the First Plaintiff reported that he “had a fall the week before ..... in the car park of the shop but he had no recollection of the fall .....” (T613). The First Plaintiff said, as was noted, “sandal caught on edge”. Examination by Dr Teh revealed bruising on the right side of the First Plaintiff’s head and forehead and bruising of the left arm and right thigh.
On 29 January 2001, the First Plaintiff returned to Dr Teh complaining of dizziness and of not being able to sleep. He was again prescribed Murelax. On 7 April 2001, the First Plaintiff complained of headaches. He was prescribed the pain reliever Capadex and referred to the psychiatrist, Dr Champion. I attach significance to the fact that this referral came within three months of the First Plaintiff’s fall and on only the third occasion he had consulted Dr Teh after 17 January 2001. Dr Teh said in evidence, “..... he (the First Plaintiff) probably would need someone of this expertise to find out what was going on” (T616). I shall return to the significance of this referral.
The First Plaintiff continued to see Dr Champion during this period and also saw Dr Teh’s partner, Dr Valente, other than for a medical legal referral, and was prescribed further medication. This continued into May when the plaintiff continued to complain of pain in the left knee and the narcotic, Endone, was prescribed for pain relief.
An X-ray in June 2001 revealed osteoarthritis in the First Plaintiff’s knees. This was treated with the anti-inflammatory medication, Celebrex. He was seen again in July 2001 and in February 2002, when he was given a referral for medico‑legal purposes.
On 27 June 2002, the First Plaintiff complained of back pain for the first time. Endone and Capadex were repeated in October 2002 when he complained of severe headaches. This medication continued into 2003. On 31 May 2003, on complaint of neck pain and sleeping difficulty, Capadex was repeated. The First Plaintiff ascribed his neck pain to the fall, even though this seems to be his first significant complaint about it to Dr Teh.
Generally, this prescriptive regime continued until the final consultation on 26 February 2004 when there was a further complaint of right sided headache. In November 2003, he had complained of continuous backache and neck ache.
No evidence was led of the First Plaintiff’s subsequent consultations with his now general practitioner from February 2004 until trial.
When he saw various medical practitioners, the First Plaintiff remembered his fall in many different ways. The one constant was that he fell in the rear car park on this day. Because of these many variations, when compared with his initial reporting to Dr Teh, it would be unwise to do other than put those subsequent various and different descriptions aside on the basis that they are but reconstructions. I am not of the view that they possess any sinister characteristic in the context of these proceedings.
The First Plaintiff was found lying on the concrete path at the rear of the fish and chip shop by his wife who looked for him when he had not returned from the task of putting out the rubbish bin for collection next day. She agreed with her husband’s evidence that it was just before they closed the shop for the day.
The Second Plaintiff described the First Plaintiff as lying with his head adjacent to the door shown lying on its side in the alley to the rear of this shop in the photographs in Exhibit P5. Her description of his physical injuries generally agreed with his and both are consistent with what was found on examination by Dr Teh eight days later.
There can be no doubt on the evidence that the First Plaintiff fell. At issue is precisely how and where. His initial complaint to Dr Teh is consistent with the cause of the fall being the western edge of the sump shown in Exhibit P5, photograph B, and that he stumbled forward from there and fell where his wife found him.
Whilst the First Plaintiff recalled that his sandal was torn off his right foot in the fall, he was unable to say precisely where it was when retrieved when his wife came to his aid. In evidence, the Second Plaintiff said that the sandal was between the western edge of the concrete path and the eastern edge of the sump, adjacent to the First Plaintiff’s feet.
Mr Stratford has suggested that this is indicative of a trip on the western edge of the concrete path and a fall onto that path adjacent to and/or in contact with the wooden door rather than an earlier trip, stumble and fall from the western concrete edge of the sump.
In my view, such a conclusion is unlikely. The plaintiff said he was hurrying back from where his car was parked on the western side of the car park to take the bin out. His route took him directly over the sump towards the alley at the rear of the shop. I find that it took him over the eastern half of the sump as he drew on the Exhibit P1.
A more probable scenario is that the First Plaintiff caught his right sandal on the exposed eastern half of the western sump edge and stumbled forward over the sump and then fell onto the concrete path, in the process causing his sandal to come off his foot and to lay where his wife described finding it.
I am satisfied that the First Plaintiff’s fall was as a consequence of the exposed and differing levels of the raised western concrete sump edge and the car park surface. In May 2001, Mr Potts, mechanical engineer, measured that disparity at between 20mm and 60mm. The photographs taken by the First Plaintiff on 30 January 2001 (Exhibit P5) shows a proud leading edge on the eastern side of the western edge of the sump. Having regard to the state of the evidence, there is no basis to conclude other than that it was there on 9 January 2001 and remained in that general condition until at least May 2001 when Mr Potts inspected and photographed it.
In fact, support for this conclusion is to be found by comparison of the photograph Exhibit P5B and Photograph No 9 in the Exhibit P13. Whilst the latter shows a greater degree of erosion than the former, it is consistent with a less than stable compacted ramp leading from the car park surface to the concrete edge of the sump, thus allowing for a prominent concrete edge to face the First Plaintiff as he hurried from his car across the sump, towards the rubbish bin, on 9 January 2001.
In this regard, the intent of the 1995 Traffic Guide referred to by Mr Potts clearly has been demonstrated by ground, which obviously may be used as a pedestrian walkway, not being flush with the edge of the sump. It was composed of what, from Exhibit P5B, appears as unstable and unlevel filling which has not been compacted so as to form a ramp leading onto the sump and leaving no excessively prominent edge. I accept the evidence of Mr Potts that, on the western edge, the top of the concrete edge was between 20mm and 60mm above the adjacent ground.
I reject Mr Stratford’s criticism that the 1995 Traffic Guide is not applicable because the car park was established earlier than that year. There is no evidence of the age of the car park. There is evidence that its surface was disturbed recently before January 2001. That having occurred, where disturbed, it should have been left so as to meet contemporary guidelines.
I find that as the First Plaintiff went towards the rubbish bin he stumbled on this exposed western concrete edge and fell forward and sustained the physical injuries he described to Dr Teh on 17 January 2001 and which is wife saw on 9 January 2001.
The question then arises as to whether, the First Plaintiff having fallen in the circumstances I have described, the Defendants owed a duty of care to him in their capacity as occupiers of the land and, if so, whether it has been shown that they were in breach of that duty.
There is no doubt that the Defendants were, on 9 January 2001, the occupiers of the land on which the First Plaintiff fell. Whilst it is not in issue that the Defendants were then the registered proprietors of the subject land; (Defence Paragraph 2) if there is doubt as to their occupation thereof it is removed by their description in the transfer of lease, Exhibit P7, and the Certificate of Title, Exhibit P8.
As occupiers of the land they owed the First Plaintiff, as a user of that land, a duty to take reasonable care for his safety. As Hayne J said in Neindorf v Junkovic (2005) 222 ALR 631; “Part 1B of the Wrongs Act 1936 (SA) (ss17B‑17E) which deals with occupier liability assumes that to be so” (paragraph 90).
As His Honour said: “the determining question ..… is prescribed by s17(C)(2): what was the standard of care to be exercised” (ibid 90).
That approach is appropriate in this case, all the while having regard to s17(C)(3) which is in these terms:
The fact that an occupier has not taken any measures to eliminate, reduce or worn against the danger arising from the stat or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.
Mr Stratford has submitted that there exists in this case no such duty of care. In that submission he has relied upon a series of decisions which are founded upon the demise of the old highway rule flowing from Ghantous v Hawkesbury City Council (2001) 206 CLR 512.
In Ghantous, a pedestrian fell as a consequence of differing levels between a public concrete footpath and the adjoining verge. At paragraph 355 Callinan J said (inter alia):
There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.
Similar sentiments were expressed, again in a case involving a statutory authority, a footpath and a pedestrian, by Heydon JA (as he then was) in Richmond Valley Council v Standing (2002) Australia Tort Reports 81-679 at paragraph 54 and again by Handley JA in Burwood Council v Byrnes [2002] NSWCA 343 (unreported) in a like factual scenario. That judge took the same approach in RTA v McGuinness [2003] Australian Tort Reports 81-688.
These cases have in common that they involved the application of the ordinary principles of negligence to land under the domain of a statutory authority and available for public use.
It was recognised in Neindorf that the Ghantous principle was based on a significantly different factual basis than the facts which I have found to exist in the case at bar.
As Kirby J there said on this topic at paragraph 77:
The relationship of the respondent to the appellant was much closer, more direct and with greater economic mutuality than was Mrs Ghantous’ relationship with the local government authority. What might reasonably be expected of the repair and upkeep or precaution and warning in the context of a driveway and forecourt in confined suburban premises to which the public was invited could not reasonably be expected for the maintenance of all verges beside the entire network of a municipality’s footpaths. This is precisely the consideration to which Pt 1B of the Wrongs Act was addressed and, in particular, the considerations mentioned in paras (a), (b) and (e) of s 17C(2).
In my opinion, the Defendants’ rear car park has more in common with the “driveway and forecourt in confined suburban premises to which the public was invited” than it does with “the entire network of a municipality’s footpaths”.
I agree with Mr Bryant that the majority decision of the High Court in Webb v The State of South Australia (1982) 56 ALJR 912 is a better analogy. There, there was an obvious false kerb created. In rejecting the invitation which flowed from it being “a very obvious feature” the Court said, at p913:
However, the reasonable man does not assume others will always take due care, he must recognise that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety.
It is necessary to consider each of the eight paragraphs in s17C(2) and to do so without the benefit of hindsight: Neindorf, per Hayne J at paragraph 93. As His Honour there points out, this approach laid out by Parliament is not “confined to what could have been done to eliminate, reduce or warn against the danger”. It is to ask, “would it have been reasonable for the occupier to take those measures?”.
I return to the paragraphs of s17(C)(2):
(a) The nature and extent of the premises:
The car park area was of generally level ground surface with which the First Plaintiff had been familiar since at least 4 April 1998. He used it regularly for the purpose of parking his car. There is no evidence that he knew of or appreciated the existence of the sump edge as a consequence of its recent insertion in the car park.
(b)The nature and extent of the danger arising from the state or condition of the premises:
The danger arose from the sump being inserted into the car park at a level in part different from the surrounding level and the failure to then ramp the adjacent car park surface so as to be level with it. That it was in part obvious is not in dispute. The concrete edge on the western side was, as can be seen in the photographs, Exhibit P5B and P5A, unevenly raised from the surrounding car park level. However, because of this difference in levels there was less “obviousness” about the variance.
(c) The circumstances in which the First Plaintiff became exposed:
The First Plaintiff became exposed as he hurried towards the rubbish bin from his parked vehicle and in doing so walked in a line across the sump. There is no reasonable basis to suggest that he might have taken another route.
(d) The age of the First Plaintiff and his ability to appreciate the danger:
The plaintiff was 58 at the time and even though he knew the sump to be there, because of the variation in the ramp levels from the car park to the western concrete edge, appreciation of the danger may readily have been missed; e.g. as he walked, the left end of the concrete edge was better and more adequately “ramped” than that directly in his path.
(e)The extent to which the occupier was aware of the danger, and the entry of persons onto the premises:
The Defendants were aware of the sump and that it was in a car park used by visiting members of the public (Photos 1-4, Exhibit P13), and by tenants in the course of their daily business. The Defendants were aware that the sump was relatively recent and should have been aware that were it not to be inserted in accordance with general practice in the industry, danger may be created by separate or varying levels. The 1995 Traffic Guide is here relevant.
(f)The measures, if any, taken to eliminate, reduce or warn of the danger:
Bollards were placed at the western edge corners of the sump. No measures were taken to ensure that the sump was uniformly level with the surrounding car park level and no warning was given of the differing levels. It does not appear that any attempt to ensure an all round level surface in the vicinity of the sump was made as is in accord with both the recommended practice and common sense.
(g)The extent, if at all, to which it would have been reasonable or practicable for the occupier to take measures to eliminate, reduce or warn against the danger:
If the occupiers had taken the single precaution of ensuring that, when complete, the surface of the car park and the edge of the sump were either contiguous or ramped in such a fashion so as to eliminate any prominent edge, then that would be sufficient. That would have, if not eliminated the danger, reduced it to almost nil. No warning was then necessary. It was not necessary to in any way alter the remainder of the car park surface.
(h) Any other matter the Court thinks relevant:
Notwithstanding that the existence of the sump was there for all to see, the varying prominence of the unramped western edge was not. This is the more so when it is appreciated that anyone crossing it may be hurrying with their mind on another object or may indeed be carrying some item to or from their parked vehicle to a shop or to the footpath at the rear of the building. There is no comfort to be had from the different coloured surfaces as to an extent they serve to disguise the height variations on the western concrete edge rather than to highlight them.
The overwhelming conclusion from a consideration of the matters required by s17C(2) is that not only was it practical for the Defendants to eliminate the danger, but that it was also reasonable for them to do so.
I am satisfied that the Defendants have been shown to be in breach of the duty of care which they owed to the First Plaintiff. The injuries to the First Plaintiff flow from this breach, as does any loss he has sustained. The Defendants are also in breach in relation to the Second Plaintiff should she be able to show any loss flowing therefrom.
It is now necessary to consider whether the First Plaintiff has, in some way, contributed to his present circumstance. In my view, he has and there needs to be an apportionment of liability.
The First Plaintiff was, in my view, distracted from paying proper attention to the way ahead by the task at hand - namely, reaching and then putting out the rubbish bin to the rear of the shop. By such distraction, he has contributed to his fall.
The degree of departure by the Defendants from the appropriate standard of care involved a significantly greater degree of culpability than does the failure of the First Plaintiff to care for himself. Thus, the First Plaintiff is to make a lesser contribution to the loss which he has suffered. I apportion responsibility as between the First Plaintiff and the Defendants at 25% as to 75%.
I turn then to the assessment of damages.
This must begin with a consideration of the credit of the First Plaintiff and, to a lesser extent, of the Second Plaintiff. Mr Stratford mounted a significant attack on the credit of the First Plaintiff on several bases. In my view, these criticisms are more relevant to matters here to be considered than to the factual matters which have under-pinned the finding as to liability and where there was other support for the First Plaintiff’s position.
The significant disparity is that which exists between the views expressed and opinions held by the two psychiatrists who examined the First Plaintiff and who gave evidence.
Dr Bem has been treating the First Plaintiff since February 2003 and sees him each four to six weeks. Dr Teh referred the First Plaintiff to the psychiatrist, Dr Champion, in April 2001. He then saw the First Plaintiff on a regular basis until he left for overseas. He then referred him to Dr Bem.
It is Dr Bem’s view that the First Plaintiff has been in the grip of a major depressive illness for five years, and, having been treated with varying types and doses of relevant medication in that time on a continuing basis, will remain so for the foreseeable future. He allows for not more than about a 20% improvement once the stressor of these proceedings is removed. He maintains this view on the basis that there is no ongoing diagnosable organic cause for the pain from which the First Plaintiff claims to suffer.
Dr Bem attributes this to the collapse of the First Plaintiff’s psychiatric state brought about by the fall. Prior to that time, in his view, the First Plaintiff was fragile in this sense. Dr Bem attributes this fragility to the First Plaintiff’s life experiences since he arrived in Australia. Initially, he was not able to work in his chosen field which was intellectual or academic rather than manual. It became necessary for the First Plaintiff to undertake the unskilled and relentless work of a shopkeeper to provide for his family. He did this from almost as soon as he arrived in Australia and augmented that income by working in the taxi industry for some years before January 2001. In the course of his taxi driving, he was assaulted and robbed at least twice. His shop has also been robbed.
By January 2001, the First Plaintiff, whilst surviving in an economic sense, was not where he had seen himself as being in the community had he been able to use his Lebanese university training. Thus, when he fell and sustained some physical injury to his head, face, teeth, body and knees, he likely let go in the relevant psychological sense.
This was perceived by Dr Teh, who, after knowing the First Plaintiff as a patient for nearly 20 years, was so concerned by his ongoing reaction to the fall that he sent the First Plaintiff to Dr Champion within three months of it. I consider this a significant matter in the assessment of the First Plaintiff.
Film taken of the First Plaintiff by representatives of the Defendants over a period of months shows the First Plaintiff at relative ease in his domestic environment and in an obvious psycho‑motor state of retardation at other times. This latter effect was particularly obvious when he was filmed visiting the Defendants’ various medical experts for interview and assessment.
The First Plaintiff’s explanation for his condition on those occasions was that, because of the stressful nature of attending for such a purpose, he had had a full dose of medication for both pain and anxiety and what was seen was the result. The list of his then current medications, in an approximate sense, is in Exhibit D10. No medical witness who was asked to comment on this list and its likely effect in combination upon the First Plaintiff, said other than it was likely to have an effect upon how he appeared and how he presented. Whilst subjective, and perhaps of little weight, the First Plaintiff described his psychological state in much the same way as Dr Bem.
The Second Plaintiff gave a like description of ongoing pain and illness and discomfort such as to affect family life in a significant way. I had the clear impression, bearing in mind the age difference between the First Plaintiff and the Second Plaintiff, that she stayed in the marriage principally as a cultural obligation and, to a lesser extent, for her children. The First Plaintiff is now almost totally dependent on her in matters ranging from dressing (choosing his clothes) to the correct taking of medication and to preparing food.
All of these matters are products of Dr Bem’s diagnosis and in his view will remain, even if there is the post action improvement to some extent, because the First Plaintiff has been in the sick role for so many years.
Dr Kutlaca, who examined the First Plaintiff in December 2003 and March 2006 for the Defendants, had a radically different view of his condition and prognosis.
In his first report in December 2003, Dr Kutlaca expressed the view that the First Plaintiff was suffering from an undifferentiated somatoform disorder. He based this substantially upon his view that the First Plaintiff’s presentation was importantly determined by his pursuit of compensation. He thought the experience of the Second Plaintiff in this regard important. He thought there would be marked improvement upon completion of the proceedings and was not satisfied that there was a treatable major depressive disorder. He thought, because of those matters which had affected the First Plaintiff before January 2001, such as his move to Australia and his loss of an academic life in the face of the need to establish his family in Australia and the robberies from him in his taxi, that there was likely a predisposition to psycho‑pathology.
It seems that Dr Kutlaca was also moved by the First Plaintiff’s remarks to him concerning his finances. When he had information on this topic from the Defendants solicitors in March 2006, and after further examination, Dr Kutlaca expressed a similar opinion in his latter report and in evidence. This was so even though the financial information given to him by the Defendants’ solicitors before he saw the First Plaintiff in March 2006 was wrong. When it was corrected and, in affect, the opposite information given to him in evidence, his opinion did not change.
Whilst he seems to have accepted that Dr Champion diagnosed a major depressive illness in January 2001, he was simply unable to accept that there had not been resolution after continual treatment so many years later. This was in the context of there presently existing no organic inability to prevent such recovery over time until March 2006.
Dr Kutlaca’s conclusion suggests that the First Plaintiff’s present condition is not due to an “incident–related diagnosable psychiatric disorder”. He thus maintains his conclusion that the First Plaintiff’s motive for his present complaints is compensation orientated and that, within a short time of trial resolution, there will be a substantial all round reduction in his complaints even though there will be the continuation of a non‑fall related sick role with no actual underlying permanent psychiatric disability.
Dr Kutlaca’s conclusions are based upon his inability to assess the First Plaintiff’s post-fall organic state and the consequential difficulty in assessing cause related psycho‑pathology. At the end, he reached the same conclusion as three years earlier, but was now more definite in terms of “substantial exaggeration and fabrication”.
I prefer the opinion of Dr Bem who has been involved with the First Plaintiff on an ongoing basis and has diagnosed what was first diagnosed by Dr Champion from soon after he first saw the First Plaintiff in April 2001. There is reference to Dr Champion’s diagnoses, as set out in his reports provided to both Dr Bem and Dr Kutlaca, in their reports which are in evidence. This conclusion, as I have earlier said, is supported by Dr Teh making such a referral so soon after January 2001.
I am not dissuaded from this conclusion by the lack of a real and ongoing organic basis for the First Plaintiff’s complaints. This has been obvious from quite early in his presentation and has not changed. I accept that the early physical injuries probably soon cleared only to be replaced by the pain disorder described by Dr Bem and discounted by Dr Kutlaca.
The Defendants have, in the First Plaintiff, a man whom I am satisfied, is within the category of person described by Kennedy J in Dulieu v White & Sons [1901] 2 KB 699 at p679 where His Honour said:
If a man is negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.
Support for the progressive deterioration in the First Plaintiff is to be found in the evidence of his wife as to how she, over time, has had to change her lifestyle to increasingly cope with and assist her husband. I accept that ultimately this led to the closure of the fish and chip shop in March 2002 because there was insufficient time, in both a real and a business sense, to keep it open and still care for the First Plaintiff.
I also accept the view of Dr Bem that a person like the First Plaintiff, who is taking substantial daily medication such as to affect him in a psycho-motor sense, will have good and bad days and that on good days will be able to act and perform functions which do not necessarily show his disability in its true and ongoing sense. This accords with what the First Plaintiff said about himself in this regard.
In my opinion, the evidence establishes that in January 2001 the First Plaintiff was in a precarious psychological state such that his fall and the associated physical injuries led quite quickly to an almost complete psychiatric collapse evidenced in the major depressive illness suspected by Dr Teh and diagnosed firstly, by Dr Champion, and, subsequently, and currently, by Dr Bem.
Consequently, and notwithstanding the criticisms made of the First Plaintiff and his evidence and his demeanour whilst giving evidence by Mr Stratford, I accept the general thrust of his evidence as to his circumstances as it is significantly supported by the evidence of both Dr Bem and the Second Plaintiff, which evidence I accept.
As a consequence of this illness, the First Plaintiff was required to give up his taxi driving by Dr Champion soon after his first consultation. As a consequence of this trial, Dr Bem has advised the relevant authority that the First Plaintiff should no longer have a driving licence. I shall proceed on the basis that he is, henceforth, unable to drive and will be totally reliant upon his wife and, to a lesser degree, his daughter and perhaps friends, in this regard.
An assessment of the First Plaintiff’s pain and suffering, both past and future, must, of necessity, be broadly based and have regard to real organic discomfort for a short time only after January 2001. Even though there is no real challenge to the finding by Dr Middleton in July 2005 that there was limited ongoing physical damage from the fall, there is no doubt from the evidence of Dr Teh and each Plaintiff that there were physical injuries and a degree of unconsciousness involved.
Pain in the First Plaintiff’s left knee is not related to the fall, even though the evidence seems to indicate that it was made, to some degree, more symptomatic in the fall. There had been earlier complaints about it from late 1998.
Pain described to the consultant physician, Dr Hughes, in mid‑2000 is also indicative of an approaching psychological difficulty in that what was complained of by the First Plaintiff was anatomically impossible in the opinion of Dr Hughes.
There was a complaint of dizziness in July 1998. There was another on 29 January 2001. Dr Frayne, ENT surgeon, could find no explanation, but could not exclude benign positional vertigo from what the First Plaintiff described to him. In any event, this complaint has much reduced in recent times and is not expected to re‑appear.
The First Plaintiff said his combination of medication made him dizzy. That did not surprise having regard to the quantity taken and its likely or possible interaction.
There is now hearing loss which necessitates the wearing of hearing aids. Complaints about hearing loss led to operative intervention by Dr Frayne on two occasions following testing which revealed marked bilateral sensori neural deafness in October 2001. This deafness is now permanent and has been so since 2002. Dr Frayne’s view was that this, and the dizziness or benign positional vertigo, were brought on by the same trauma. I accept his opinion and am satisfied that that trauma was the fall of 9 January 2001.
In addition to the physical injuries described as occurring on 9 January 2001, I am satisfied that the First Plaintiff damaged his teeth and that he remains concerned that they upset his appearance, whether that actually be so or not.
So, in all, the First Plaintiff has the ongoing physical difficulty of deafness in association with a major depressive disorder and a pain disorder. As a consequence, his lifestyle is significantly different from what it would have been had he and his wife remained shopkeepers and he a taxi driver. He has lost the capacity for social intercourse. He no longer is able to read and no longer is able to enjoy listening to music. His relationship with his wife is now such that she covers for him in all regards. There is no normal marital relationship. He is socially avoidant, irritable and demanding.
In all of the circumstances, I assess his claim for general damages in the sum of $40,000.00 of which I ascribe $25,000.00 to pain, suffering and loss of amenities to date.
The First Plaintiff is entitled to interest on that portion of this head of loss and the basis that he has been kept out of his money. Interest here should be allowed from January 2001. The interest rate is 4% and should be discounted to take account of accumulation of the principal over the period until the present. This calculation ($25,000.00 x 4% per annum x 5.5 years ¸ 2) results in an allowance of $2,750.00 for interest.
The question of economic loss is made difficult by the Plaintiffs’ habit of mixing their money and producing financial record books which are hard to comprehend.
Mr Stratford has suggested that there is income which has not been declared. Certainly in Exhibit P3, for the year 1999, there are figures which indicate different levels of takings and which have not been explained in evidence by either the First Plaintiff or Mr Wellby. There is, quite simply, insufficient evidence from which to be satisfied that the Plaintiffs have falsified their income. The First Plaintiff denied that he had done so and there is no objective evidence to support such a conclusion. Indeed, there is some evidence to the contrary. If reliance is placed upon the lesser circled figures in Exhibit P3, as collected in Schedule 2 to the Defendants’ Outline of Submissions, and to the First Plaintiff’s banking, and to the monthly payments due on the bank accounts in Exhibits D1 and D2 (the shop and house mortgages) there is an adequate income disclosed. In my view, the extrapolation of income undertaken by Mr Stratford to support this submission is nothing but speculation.
Where the issue of non-disclosure of income is raised, and not resolved, the proper course is to proceed on the basis of the figures used for income tax purposes: Giorginis v Kastrati (1988) 49 SASR 371. That is what I shall do.
The relevant figures are set out as income in the tax returns as contained within Exhibit P10. However, I can see no benefit in using, in any way, income earned before the fish and chip shop commenced trading on 7 April 1998. In the 1997/1998 tax year there was income from the previous delicatessen. In addition, there was a time in that year when there was no business at all as one business had been sold, the Second Plaintiff was unwell, and the fish and chip shop had not yet been purchased. The Croydon Park shop was bought when she wanted to return to work. Thus, the figures for that year are of little value. The relevant income years are 1998/1999, 1999/2000 and 2000/2001.
Income figures for the 1999 tax year showed a loss for the shop of $5,762.00. In 2000, this reduced to a loss of $2,001.00. For the tax year 2000/2001, the shop returned a profit of $2,695.00. Thereafter, the business deteriorated until it closed in March 2002. This deterioration is explicable if the evidence of the Second Plaintiff as to the effect of the First Plaintiff’s fall had on the time available to her to be in the shop is accepted. I accept her evidence in that regard. Entries in the ledger Exhibit P4 show income deterioration from mid August 2001.
Because the shop had progressed to a small profit for the year 2001, it is not unreasonable to assume that, had the First Plaintiff’s fall not intervened, it would have continued and perhaps improved. There had been improvements of about $3,700.00 and $4,700.00 in successive years. It is impossible, however, to make any substantial predictions in a dollar sense. However, bearing in mind the age difference between the Plaintiffs, there is no basis upon which to assume other than it would do so for some indeterminate period whilst the Second Plaintiff remained active and involved. The suggestion by Dr Kutlaca that the Second Plaintiff told him in 1995 that she would finish work in two years from then, has been shown to be incorrect simply by the effluxion of time.
The First Plaintiff should have some allowance for his loss from the shop. It is unknown how long it would have remained open. There is no evidence to suggest any problems attaching to the continuation of the business but for the fall on 9 January 2001. From the evidence I am satisfied that it would have remained open until at least the present whilst the youngest child remains at school. Using a broad axe, I allow $5,000.00 in this regard.
It is difficult to assess the First Plaintiff’s income from taxi driving other than from when he gave up taxi ownership in December 1998 and began only to drive. The tax return figures for this year are distorted by the closing down and sale of his earlier leased plate taxi business. However, earnings of about $8,336.00 are shown in Exhibit P2 for the period from then until June 1999. It seems he worked for four days per week at this time.
Earnings as a driver for the 2000 tax year were $13,815.00. He seems to have worked three or four days per week for this period. There is therefore some consistency in these figures.
For the 2001 tax year they were $10,748.00. However, this was the year of the fall and he ceased to drive when directed to do so by Dr Champion some unknown number of weeks before 30 June 2001 and after he first saw Dr Champion in April 2001. There are no other primary records for this period as they were stolen in a break‑in at the shop. However, in broad terms this figure, allowing for a period of no driving, is also consistent with the earnings of the previous years.
The average weekly income for eighteen months to 30 June 2000 is ($8,336.00 + $13,815.00 ¸ 78) $284.00. This is also consistent with the First Plaintiff having earned at a similar rate in 2001 until he saw Dr Champion and ceased taxi driving.
There is no reason to assume that the First Plaintiff would not have continued to drive taxis had he not fallen. It was plain from his evidence that he enjoyed the work and that he did it at his pace. From 1 July 2001 until judgment, his loss is ($284.00 x 52 weeks x 5 years) $73,840.00. I should make an allowance for earnings had he not given up his licence when directed by Dr Champion a few weeks before the end of the tax year. I fix the First Plaintiff’s past economic loss from taxi driving at $75,000.00
Income tax is fixed by law. The relevant rate for his annual earnings is 16.5%. This is to be deducted. Without any degree of absolute arithmetic precision, I assess the First Plaintiff’s past economic loss at $66,000.00.
Interest on this sum in accordance with the average rate from the Third Schedule over the period from January 2001 until judgment must be discounted to reflect the slow aggregation of the loss. Having done so, I allow interest in the sum of $11,500.00.
The First Plaintiff’s future earnings may be calculated on a like basis. There is no reason to infer that he otherwise would not have continued as a taxi driver for the same number of days per week and earned a similar income. There is no evidence of any increase in taxi charge rates since 2001. There is no need to assume that the First Plaintiff would not have continued until at least he reached 65 years of age. He may have gone further, but I think it unlikely in all of the circumstances of his life.
I therefore use the actuarial certificate (Exhibit P21) for this purpose. The lump sum is $284.00, the multiplier is 83, giving $23,572.00. Allowing for the contingencies of life generally, and to reflect the First Plaintiff’s predisposition to a psychiatric illness, I fix this figure at $15,000.00. No interest is payable on this sum.
I come then to the First Plaintiff’s past medical expenses which are set out in the schedule attached to the Plaintiffs’ written outline of submissions. They are agreed only as to quantum. The schedule allows a discount to take account of non‑fall related general practitioner visits by the First Plaintiff over the time. No comment was made adverse to this approach and I accept it. The figure is $15,128.00.
Interest calculated on a similar basis follows this assessment of loss, discounted for a like reason. The interest payable is ($15,128.00 x 6.25% per annum x 5.5 years ¸ 2) $2,600.00.
Medical expenses for the future are based on regular visits to the general practitioner each month and to the psychiatrist each six weeks for the immediate term. There is the prospect of about a 20% psychiatric improvement after this matter is concluded. Dr Bem allowed for the possibility of six monthly visits and for general practitioner supervision in the interim as the best case scenario.
Taking the annual fee for the general practitioner to be $720.00 and for Dr Bem to be $1,000.00, the average weekly cost is $33.00. Using the actuarial figure for the First Plaintiff for whole of life of $722.00 gives a value of $23,826.00. A significant allowance for improvement must be made. I allow this head of damage at $15,000.00. No interest is here attracted and no claim for the cost of medication has been made.
The First Plaintiff is entitled to an amount for past and future gratuitous services.
There is little, if any, evidence of ongoing regular or substantial assistance given to the First Plaintiff by his wife in the period immediately following the fall. He attended to his normal activities and did not visit Dr Teh for eight days and was then prescribed cream for his bruises. It was not until thereafter that the psychiatric disabilities had their onset and then increased over time. There can be no doubt, however, in accordance with my findings, that the need for ongoing assistance, care and attention by the Second Plaintiff for her husband, has been created by the breach of duty of the Defendants.
I accept the evidence of the Second Plaintiff that the needs of the First Plaintiff have increased over time and particularly so in the most recent one to two years. It is now necessary for her to care for his medication several times each day (in a preparatory and supervisory sense), to cook for him rather than they assisting each other in the kitchen, to supervise his choice of clothing and dressing and to provide for him when he calls. Whilst she has driven him to appointments and the like in this period it is apparent from the evidence that the First Plaintiff frequently drove himself. Thus, this topic is less important in this category than in the future in the expectation that henceforth he will be unable to drive at all.
The care given to the First Plaintiff by his wife has increased in an incremental fashion since about the time he was referred to Dr Champion. I have taken as much from the evidence of the Second Plaintiff as to how the First Plaintiff began emotionally to deteriorate a few months after his fall and how that deterioration has peaked in recent years, as I have mentioned.
I am satisfied that the Second Plaintiff spent about an hour per day attending her husband. Whilst the time required may have fluctuated over years and between weeks, I am unable to be satisfied that it significantly increased before about January 2005. From that time I accept her evidence as to what it is now necessary for her to do to care for, and be of service to, the First Plaintiff, and that she spends about three hours each day in so doing.
The evidence as to the value of this service is to be found in Exhibit P23 - the Disability Services Award. I shall use it as the basis for the calculation of this loss.
Thus, the loss is made up from a varying award rate as set out below:
From January 2001 until mid 2001 (26 weeks)
(@ 1 hour daily) @ $12.36 per hour = $ 2,249.52until mid 2002 (52 weeks)
@ $12.70 per hour = $ 4,622.80
until mid 2003 (52 weeks)
@ $13.18 per hour = $ 4,797.52
until mid 2004 (52 weeks)
@ $13.62 per hour = $ 4,957.68
until late 2004 (26 weeks)
@ $14.12 per hour = $ 2,569.84
From January 2005 until mid 2005 (26 weeks)
(@ 3 hours daily) @ $14.12 per hour = $ 7,709.52
until mid 2006 (52 weeks)
@ $14.57 per hour = $ 5,901.44
Total sum = $ 42,803.32
I allow $42,500.00 under this head.
This award attracts interest in accordance with the Third Schedule for the period since January 2001 of ($42,500.00 x 6.25% per annum x 5.5 years). I apply a like discount to reflect the aggregating value of the loss and I fix interest at $7,500.00.
The award for future gratuitous services is calculated using the current hourly rate and the actuarial figures for whole of life. This equals ($14.57 x 21 (hours/week) x 722) $220,910.00.
However, there are significant contingencies relating to several matters.
There remains the likelihood of improvement when these proceedings are completed, even though the possibility of complete psychiatric recovery from the sick role is very remote on the medical evidence, which I have accepted. In addition, there must be recognition of the First Plaintiff’s age and the fact that there may occur, at an unknown time, the need for age-related care, in any event.
I assess future gratuitous services at $75,000.00. This award does not attract interest.
The Second Plaintiff makes a claim pursuant to s33 of the Wrongs Act 1936 for the loss of her husband’s consortium. This allows her to recover for the loss or impairment of her husband’s comfort, society and fellowship previously provided to her by him. This recovery must relate only to matters temporal as opposed to matters spiritual and must be capable of estimation in money: Toohey v Hollier (1955) 92 CLR 618. There can be no recovery for suffering distress or depression consequent upon the injury to the First Plaintiff: Andrewartha v Andrewartha (1987) 44 SASR 1. In addition, care must be taken to ensure that there is no over-lapping with a sum elsewhere awarded. In this case that is the award for gratuitous services.
This award must have regard to how things have been for the Second Plaintiff vis-à-vis the First Plaintiff since his fall and, more particularly, latterly, and, to the future, with consideration of the matters relevant to the future which I have mentioned earlier.
I assess this claim at $7,500.00. I apportion it as to $3,500.00 for the past, inclusive of interest.
The Second Plaintiff claims pursuant to s34 of the Wrongs Act 1936 consequent upon the injury to the First Plaintiff. This claim is, of necessity, small. The evidence shows that the Second Plaintiff continued to keep the ledger (Exhibit P4) until the business ceased. The Second Plaintiff, however, needed to do the small amount of heavy lifting previously undertaken at the shop until it closed in March 2002. I assess this loss, inclusive of interest, at $500.00.
A summary of the awards is as follows:
First Plaintiff:
Past non economic loss $ 40,000.00
Interest $ 2,750.00Past Economic Loss $ 66,000.00
Interest $ 11,500.00Future Economic Loss $ 15,000.00
Past Medical Expenses $ 15,128.00
Interest $ 2,600.00
Future Medical Expenses $ 15,000.00
Past Gratuitous Assistance $ 42,500.00
Interest $ 7,500.00
Future Gratuitous Services $ 75,000.00
$ 292,978.00Second Plaintiff:
Consortium $ 7,500.00
S34 Wrongs Act $ 500.00
$ 8,000.00Each of these awards is to be reduced by the contributory negligence of the First Plaintiff, which I have assessed at 25%.
There will be judgment for the First Plaintiff in the sum of $219,733.50, inclusive of interest.
There will be judgment for the Second Plaintiff in the sum of $6,000.00, inclusive of interest.
I shall hear counsel as to the question of costs and the final orders.
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