Bucic v Arnej Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2015 05539

MARIN BUCIC	Plaintiff
v
ARNEJ PTY LTD	Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February to 7 March 2019
DATE OF JUDGMENT:	20 May 2019
CASE MAY BE CITED AS:	Bucic v Arnej Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 330

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NEGLIGENCE – Occupier’s liability – Self-employed brick cleaner fell from scaffolding – Deficiencies in scaffolding – Where pre-existing injuries – Whether pre-existing injuries aggravated by fall – Whether contributory negligence – Damages – Griffiths v Kerkemeyer (1977) 139 CLR 161; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 applied – Wrongs Act 1958 Pts IIA and X – Occupational Health and Safety Regulations 2007 Part 3.5.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J B Richards QC with D Dealehr	Carbone Lawyers
For the Defendant	S A Smith SC	Moray & Agnew

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1
Factual background............................................................................................................................ 2
The plaintiff’s life and work.................................................................................................. 2
Pre-accident medical history................................................................................................. 3
The accident of 30 October 2007........................................................................................... 4
Post-accident medical history............................................................................................... 8

The claim............................................................................................................................................ 11
The pleadings........................................................................................................................ 11
The case at trial...................................................................................................................... 13

Applicable principles....................................................................................................................... 14
Occupier’s liability............................................................................................................... 14
Statutory duty under the Regulations............................................................................... 15
Causation................................................................................................................................ 17
Damages ................................................................................................................................ 19

The trial and witnesses..................................................................................................................... 23
For the plaintiff...................................................................................................................... 24
For the defendant.................................................................................................................. 24
The plaintiff’s credibility..................................................................................................... 25

The evidence as to the fall............................................................................................................... 26
The evidence as to the plaintiff’s medical conditions................................................................. 28
The plaintiff’s evidence........................................................................................................ 28
Vesna Bucic’s evidence........................................................................................................ 34
Daniel Bucic’s evidence....................................................................................................... 36
Marco Bucic’s evidence........................................................................................................ 37
Dr Sulava’s evidence............................................................................................................ 37
Mr Turner’s evidence........................................................................................................... 41
Dr Sheriff’s evidence............................................................................................................. 45
Dr Kennedy’s evidence........................................................................................................ 47
Mr Haig’s evidence............................................................................................................... 52
Dr Stockman’s evidence....................................................................................................... 54
Mr Karamanos’ evidence..................................................................................................... 56
Dr Kaplan’s evidence........................................................................................................... 56
Dr Waluk’s evidence............................................................................................................ 57

The evidence as to damages............................................................................................................ 58
General damages................................................................................................................... 59
Economic loss........................................................................................................................ 61
Attendant care........................................................................................................................ 65
Medical expenses.................................................................................................................. 68

Submissions....................................................................................................................................... 68
Plaintiff’s submissions......................................................................................................... 69
Defendant’s submissions..................................................................................................... 74

Consideration.................................................................................................................................... 79
Circumstances of the fall...................................................................................................... 79
Breach of duty........................................................................................................................ 81
Contributory negligence...................................................................................................... 83
Volenti defence...................................................................................................................... 85
Causation................................................................................................................................ 86
General damages................................................................................................................... 94
Economic loss........................................................................................................................ 95
Attendant care...................................................................................................................... 100
Medical and like expenses................................................................................................ 101
Summary as to damages.................................................................................................... 102

Conclusion....................................................................................................................................... 103

HER HONOUR:

Introduction

On 30 October 2017 the plaintiff, Marin Bucic, was working as a self-employed brick cleaner on a building site at 789 Old Calder Highway, Keilor (‘the premises’), when he fell approximately four-and-a-half metres from a raised scaffolding bay onto a pile of bricks and suffered serious injury. The defendant, Arnej Pty Ltd, was the sole-trader responsible for the construction of the house. The scaffolding was erected by a hire company which was joined as a third party to this proceeding, but which settled with the defendant on the day fixed for trial.

The plaintiff pleads breach of occupier’s liability under Part IIA of the Wrongs Act 1958 (‘the Act’). The plaintiff alleges the defendant failed to take reasonable care to prevent injury to entrants by reason of the state of the premises and, in particular, failed to prevent him from working on scaffolding that it knew, or ought to have known, was unsafe and dangerous. In the alternative, the plaintiff pleads breach of statutory duty, with particular reference to Part 3.5 of the Occupational Health and Safety Regulations 2007 (‘the Regulations’).

The defendant does not dispute that, at the relevant time, it was the occupier of the premises and, as such, owed the plaintiff a duty of care. Nor does it dispute that it owed the plaintiff a statutory duty as concretised in the Regulations. However, the defendant denies any breach of duty and says that, if there was such a breach, it was not a material cause of the plaintiff’s lumbar spine and neck injuries, which were wholly pre‑existing. Further, the defendant pleads contributory negligence and voluntary assumption of risk (with reference to s 54 of the Act), which it says follow from the scaffolding the plaintiff had to use and the way he actually used it.

As will appear, although it is tolerably clear that the scaffolding was deficient, it is less clear to what extent this contributed to the plaintiff’s injuries. This is because prior to the fall, the plaintiff had a pre-existing degenerative back condition. Nevertheless, on the evidence before me, I am satisfied on the balance of probabilities that but for the defendant’s negligence the plaintiff’s injuries would have been less severe than they are today. I consider that the fall aggravated his pre-existing degenerative back condition, and was a cause or materially contributed to his neck condition, such that he is now permanently incapacitated for work. I also consider that the fall gave rise to reasonably foreseeable and recognisable psychiatric injuries. For completeness, I reject the defendant’s contentions as to contributory negligence and voluntarily assumption of risk, which cannot stand in the face of the evidence.

It is incumbent upon those who control building sites to provide a safe working environment for employees and independent contractors. This is especially so where they are required to work at heights that expose them to innate risk of serious injury. I am therefore of the view that the plaintiff should be awarded damages in the sum of $1,043,000, with general damages of $300,000, and special damages of $743,000. My reasons follow.

Factual background
The plaintiff’s life and work

The plaintiff was born on 1 January 1958 in Croatia. He left school when he was 13. He migrated to Australia in 1980 and met his wife, Vesna, at a Croatian dance. She too had migrated to Australia with her parents in 1972. He married her later that year. They have three sons: the eldest, Daniel, was born in 1981; twin boys followed in 1985.

In 1999 the plaintiff and his wife purchased a block of land in Taylors Lakes. The plaintiff built a house on the land. They continue to live in that house, although around 10 years ago the property was transferred to the plaintiff’s mother-in-law, due to the plaintiff experiencing financial difficulties.

The plaintiff initially worked as a labourer in a factory for two years. In 1982 he started work as a brick cleaner with his father-in-law. In 1983 he began working as a self‑employed brick cleaner. He relied mainly on word of mouth to attract work.

It was the plaintiff’s practice to transport all of the necessary materials and tools in his utility. This included a generator, needed to power the hose for spraying the bricks with hydrochloric acid, and the acid itself. He would drive to the work site and park his utility on or near the premises. He would run a long hose from his utility to whichever bricks needed to be cleaned. He would wear protective clothing whilst cleaning the bricks. Unless especially dirty, most bricks required one spray of hydrochloric acid, after which he would rinse them with water and wipe them down.

The plaintiff worked in this fashion until his accident on 30 October 2007. He was 49 years old at the time of the accident and was 61 years old at the time of the trial.

Pre-accident medical history

The plaintiff appears to have had pain in his back and right leg since late 2006. His treating general practitioner began prescribing Panadeine Forte in November 2006. The report of a CT scan dated 1 December 2006 showed degenerative changes in the lumbar spine and mild intervertebral disc bulging at L3-4.

On 3 April 2007 the plaintiff was referred to the Royal Melbourne Hospital (‘RMH’) orthopaedic outpatients clinic. The referral letter records complaints of lower back pain with right-side sciatica and right gluteus medius tendonitis or trochanteric bursitis. The next day, on 4 April 2007, the plaintiff again presented to the RMH orthopaedic outpatients clinic complaining of about four months of lower back pain and right-side sciatica from his buttock down to his calf. The hospital notes record that his pain was ‘constant’, ‘worse when lying flat’, and the ‘worst it has been’. They also record that he was constipated from using Panadeine Forte.

The report of an MRI scan dated 15 May 2007 showed an L4-5 annular tear and moderate right paracentral disc extrusion, compressing the traversing right L5 nerve root. On 4 June 2007 the plaintiff was administered a trans-foraminal fluoroscopic guided injection at the L4-5 nerve root.

On or around 8 June 2007 the plaintiff was lifting some 20kg drums into the tray of his utility vehicle when he experienced a sharp pain in his lower back. Two days later, on 10 June 2007, the plaintiff presented at RMH complaining of acute lower back pain and right-side sciatica down to his big toe. The hospital notes record that he had had ‘no sleep’ the night before and had been taking Panadeine Forte and Voltaren. The plaintiff was prescribed oxycodone as he was ‘needing pain relief’.

On 10 June 2007, at a pre-surgery check-up, it was noted that the plaintiff had been experiencing an eight month ‘history of low back pain, right leg sciatica’.[1] On 20 June 2007 the plaintiff was seen by Mr Peter Turner, consultant orthopaedic surgeon, and placed on the waiting list for elective spinal surgery. This was to take the form of a microendoscopic discectomy at the L4-5 level.
[1]Senior counsel for the defendant contended that the plaintiff’s pre-admission screening took place on 10 August 2007, rather than 10 June 2007, based on his reading of RMH notes. My reading of these notes is that it was in June.

On 26 July 2007 the plaintiff attended upon his treating general practitioner, Dr Darko Sulava, and was prescribed Tramal capsules (50mg) for pain relief. A further script was provided on 8 August 2007.

Dr Sulava prescribed a third script for Tramal on 20 August 2007 and a fourth script on 8 September 2007. Dr Sulava’s notes from 8 September 2007 record that the plaintiff was ‘to have surgery this Wednesday’ as his back was ‘very sore’.[2] This was the aforementioned L4-5 microendoscopic discectomy to be performed by Mr Turner.
[2]Exhibit P8.

However, on 12 September 2007, the plaintiff elected not to have the surgery. Five days later, on 17 September 2007, he attended upon Dr Sulava and was prescribed a fifth script for Tramal.

The accident of 30 October 2007

On or around 25 October 2007 the defendant’s sole director, Halil Hasan, telephoned the plaintiff requesting his brick-cleaning services on the premises. On or around 25 October 2007 the plaintiff met Mr Hasan on the premises and was shown the site and instructed as to the work to be performed. The two-storey house that was being built on the premises was nearing completion.

Relevantly, it had been decided at an early stage to install the internal staircase, as this would obviate the need for external ladders to access the scaffolding. As with other tradespeople on the site, the plaintiff was told to ascend via the staircase to the second floor, after which he was to step out through one of the windows on to the scaffolding. The scaffolding bays went around the perimeter of the house and were all at the same height, save for a raised bay on the northern side of the house, which was approximately 3.5 metres above ground level. This particular bay had been raised—it is not clear by whom—so as to gain access to an elevated section of brickwork above a large central window.

After negotiating terms, the plaintiff started work on 30 October 2007, arriving on the premises at approximately 7:30am. There was nobody there when he started working and nor did he see anybody during the time that he was working.[3] This was in no way unusual—as brick cleaning involves the use of hydrochloric acid, it is common for brick cleaners to work in solitary fashion. This assists in minimising disruption both to the brick cleaner and to the building site.
[3]Transcript of Proceedings, Bucic v Arnej Pty Ltd (Supreme Court of Victoria, S CI 2015 05539, Zammit J, 18 February 2019 – 7 March 2019) 134.1 (‘T’).

As was his practice, the plaintiff parked his utility on or near to the premises, connected his generator to the water mains and ran a high-pressure hose on to the work site. In his protective suit, he ascended the internal staircase to the second floor, stepped out through one of the windows on the eastern side of the house and began cleaning the bricks. He had his equipment with him, including his high-pressure hose, which appears to have run directly from where he was on the scaffolding to the generator in his utility.

The plaintiff finished cleaning the bricks on the eastern side and began to move around to the northern side of the house. It was then that he allegedly fell approximately 4.5 metres from the western end of the raised scaffolding bay onto a pile of bricks left behind by bricklayers. The circumstances of the plaintiff’s fall—how he came to fall and, indeed, whether he fell from where he says he fell—are hotly disputed. I will return to this subject a little later in my findings of fact.

There were no witnesses to the fall. As such, there is no direct evidence as to how or when the plaintiff fell, nor where he landed. Nor is it known how long, if at all, he was unconscious.

The first person to observe the plaintiff after the fall was another subcontractor referred to at trial as ‘Simon’. He was not called to give evidence. The only other person on the premises at the time was Bob Ferrar, a carpenter, who was working in the garage on the western side of the house. Mr Ferrar’s evidence was that he heard Simon call out, ‘Bob, Bob, call an ambulance’, to which he replied ‘[w]hat do you want an ambulance for?’[4] Simon then said words to the effect, ‘[t]he brick cleaner, the brick cleaner’, and pointed towards the northern side of the house and said: ‘The brick cleaner’s bleeding … he’s on the ground’.[5]
[4]T768.6–8.
[5]T768.12–26.

Simon had been working on the first-floor scaffolding on the western side of the house. Mr Ferrar’s evidence was that Simon came down off the scaffold and went to turn off the plaintiff’s hose, water and brick cleaning equipment because ‘it was spraying water and stuff everywhere’.[6] Meanwhile, Mr Ferrar approached the plaintiff, who was still on the ground. When Simon returned they tried to make the plaintiff as comfortable as possible. Mr Ferrar recounted what happened next as follows:
[6]T769.11–14.

So what happened next?---Um, we tried to make the brick cleaner comfortable and asked him not to move, an ambulance is on the way, and I just said, ‘What happened?’
And what did he say in response?---He said, ‘I fell’.
Okay?---Off the scaffold.
Did he say anything about how he fell?---He said, ‘I let go – I let go of this tube or pole to grab this one and there was nothing there’.
And did you say anything in response to him?---Yeah, I – I said to him, ‘What were you doing on the outside of the scaffold’, because the access to the scaffold is through the main building and out through a window.
And did he say anything in response to your question?---I don’t recall him answering me.
Okay. All right. Did you have any further conversation with the brick cleaner before the ambulance arrived?---Oh, it was only, um, ‘Where does it hurt’, and his back – his back was sore and we just said, ‘Stay still, don’t move. You could rupture something, you know, because we don’t know your injury.’
Okay. The ambulance then arrived, correct? The ambulance arrived?---Yeah.
And did you have any conversation with the ambulance officers?---The ambulance officers asked me what happened and we said he fell off the scaffold and he asked me where and I said, ‘I don’t know. It was around the front’.
Okay. And to the best you remember, did they ask you anything about whether he’d lost consciousness or not?---He did, but I said I – I didn’t see him – ah, I wasn’t – he – he could’ve lost consciousness when he fell, I don't know. I said, ‘Nobody was witness to it’.[7]

[7]T769.15–770.16.

The paramedics arrived at around 11:05am. The case description given in their notes is as follows:

PT WAS WORKING ON SCAFFOLDING APPROX 6M UP (2^ND STOREY OF HOUSING DEVELOPMENT) WHEN PT FELL, LANDING ON GROUND BELOW … PT WAS SEEN BY COWORKERS WALKING AROUND SIDE OF HOUSE, IN OBVIOUS PAIN WITH SERIOUS HAEMORRAGE TO BACK OF HEAD … COWORKERS CALLED MAS AND BANDAGED PT’S HEAD … PT VERY DISTRESSED O/A, ? NIL LOC.[8]

It was agreed by the parties that ‘LOC’ was a short-hand expression for ‘loss of consciousness’. ‘O/A’ was said to be ‘on arrival’. The ambulance notes were therefore said to read: ‘Patient very distressed on arrival. Nil loss of consciousness?’[9] The paramedics conducted two tests, at 11:09am and 11:11am, to see if he was suffering from any loss of consciousness. Those tests, which produced what is known as a ‘Glasgow score’, showed the plaintiff to have an overall score of 15.[10]

[8]Exhibit D6.

[9]T707.9–15.

[10]Exhibit D6.

The plaintiff was fitted with a neck collar and transported to the Emergency Department at RMH. The hospital’s ‘Trauma Review’ notes dated 30 October 2007 record:

Fit + well gentleman (apparently). Up 2 stories high laying roof tiles. Fell off scaffolding (~6m). Landed on R chest on scattered bricks on ground. ∅ LOC. Managed to sit up + waited for MAS. Haemodynamically stable at the scene. GCS = 15.[11]

A scan taken later that day revealed a fractured wrist, fractured ribs and a collapsed lung. No damage was observed to the lumbar or cervical spine. The hospital notes also record a 7cm laceration to the right temporal region of the plaintiff’s head. He was placed under observation and, after three days, was discharged in a stable condition. On the day of discharge, 1 November 2007, he was noted as being ‘alert’ and ‘oriented’ and with ‘nil complaints other than ongoing rib pain’.
Post-accident medical history

[11]Exhibit D6.

On 15 January 2008 the plaintiff attended upon Dr Sulava. The plaintiff indicated that he was making a good recovery and would soon be back at work. Dr Sulava did not record any complaint as to back or neck pain at this time.[12]
[12]T502.5.

At some time prior to March 2008 the plaintiff must have attended the RMH orthopaedic outpatients clinic and been put back on the waiting list for elective surgery. I say this because, on 12 March 2008, Mr Turner performed the aforementioned L4-5 microendoscopic discectomy on the plaintiff. The spinal canal was explored, the pre-operative diagnosis confirmed and the sequestrated disc fragments removed, achieving adequate decompression of the L5 nerve root.[13]
[13]Exhibit P10.

Five days later, on 17 March 2008, the plaintiff attended upon Dr Sulava. He explained that he had been hospitalised for his L4-5 disc prolapse. This was the first that Dr Sulava knew that the plaintiff had undergone surgery.[14]
[14]T503.19.

On 25 June 2008 Mr Turner reviewed the plaintiff. He reported cramping in his calf but indicated that his back was improving and that he had returned to work.[15]
[15]T589.15.

A little over two years later, on 13 October 2010, the plaintiff was seen by Mr Turner at the RMH orthopaedic outpatients clinic. He confirmed that he had obtained a good result from the March 2008 laminectomy. However, since approximately late September 2010, he had started to feel pain and numbness in his right leg. On 28 October 2010 the plaintiff was administered another foraminal injection at L4-5.

On 9 February 2011 the plaintiff was admitted to RMH and underwent a follow-up open discectomy at L4-5 for a recurrent disc prolapse. On retraction of the dural sac sequestrated disc fragments were identified and removed.

On 22 February 2011 the plaintiff complained to Dr Sulava of neck pain and tingling pain in his hands.[16]
[16]T497.21.

On 23 February 2011 the plaintiff had a CT scan of the cervical spine. It showed intervertebral disc prolapse at C6-7 and long-standing degenerative changes.

On 28 March 2012 the plaintiff was seen by Mr Turner at the RMH orthopaedic outpatients clinic. The plaintiff indicated that the February 2011 surgery had significantly reduced his back pain. However, a few months later, he returned to RMH. On 13 August 2012 he presented with stabbing pain to the shoulder, radiating to the arm and fingers, as well as pins and needles. The plaintiff was sent home and scheduled for imaging. A few days later, on 16 August 2012, he returned with more severe symptoms. The pain had increased such that he could no longer move his right shoulder or neck. He also had contralateral paraesthesia.[17] A CT scan dated 20 August 2012 showed multilevel chronic degenerative changes, a C6-7 paracentral disc protrusion, an osteophytic spur and no cord compression.
[17]Exhibit D6.

On 29 August 2012 the plaintiff was seen by Mr Turner at the RMH orthopaedic outpatients clinic. The plaintiff described his situation as ‘bad’ and felt that his whole back was in pain and that leg pain had returned. He was also experiencing severe pain in his neck and right arm.[18] The report of an MRI of the lumbar spine dated 7 August 2012 showed L4-5 disc space narrowing and right foraminal/paracentral disc protrusion, indenting the thecal sac and compromising the right L5 nerve root in the lateral recess, as well as facet joint degenerative changes.
[18]Exhibit P10, report dated 24 July 2013.

On 9 October 2013 the plaintiff was walking along a footpath when his leg gave way and he fell onto the nature strip.[19] He was taken to RMH. On 16 October 2013 the plaintiff underwent a revision laminectomy at the L4‑5 level, combined with an instrumented spinal fusion, once again performed by Mr Turner. After this operation, the plaintiff reported numbness from his right leg down to his big toe; he has worn a splint for ‘foot drop’ ever since.[20]
[19]T115.24–8.
[20]T598.24; 472.20; 116.26.

The report of an MRI scan of the cervical spine dated 4 July 2014 showed multilevel uncovertebral and facet degenerative changes with bilateral foraminal stenosis and cord compression at C6-7 without evidence of abnormal cord signal. It also showed left-sided foraminal stenoses at C3-4 and C4-5.

The report of an MRI scan of the cervical spine dated April 2016 showed the same clinical picture as the July 2014 MRI. The plaintiff’s last visit to the RMH orthopaedic outpatients clinic was on 29 November 2017. He advised Mr Turner that he did not wish any further action to be taken unless and until his symptoms worsen.

I note for completeness that the plaintiff has twice been due to have surgery in the form of a C6-7 microendoscopic discectomy. However, he has twice elected not to have this surgery, due to his fears. This surgery was to be performed by Mr Turner.

The claim
The pleadings

The plaintiff’s further amended statement of claim dated 19 February 2019 alleges 24 particulars of negligence and breach of Part 3.5 of the Regulations.

The gravamen of the plaintiff’s claim is that, in breach of s 14B of the Act, the defendant failed to provide a safe working environment and, in particular, allowed the plaintiff to work on scaffolding that was incomplete and/or inadequately secured. Further, and in the alternative, the plaintiff claims the defendant breached r 3.5.43 of the Regulations by allowing him to work on scaffolding that was incomplete and/or inadequately secured.

The injuries alleged by the plaintiff can be broken into three groups:

(a) injuries directly attributable to the fall, including laceration to the head, fractured wrist, fractured ribs and punctured lung;

(b) injuries indirectly attributable to the fall, including causation and/or aggravation of the degenerative changes to the lumbar spine, causation and/or aggravation of the degenerative changes to the cervical spine, and cognitive impairment due to brain concussion syndrome; and

(c) psychiatric injuries, including anxiety and depression.

The defendant’s amended defence dated 20 February 2019 denies negligence and/or breach of statutory duty and pleads in summary as follows:

(a) it does not admit that it was the occupier of the premises and that it owed the plaintiff a duty of care as such;

(b) it does not admit that, if it owed the plaintiff a duty, it breached that duty by allowing the plaintiff to work on scaffolding that was incomplete and/or inadequately secured;

(c) it does not admit the mechanism of injury alleged by the plaintiff, namely that he fell off an unguarded scaffolding platform, nor that he suffered serious injury as a result;

(d) it denies each and every particular of negligence and/or breach of statutory duty and each and every particular of injury; and

(e) it denies each and every particular as to the plaintiff’s loss of earnings and loss of earning capacity.

And it pleads that, if it was negligent and/or in breach of statutory duty, then the plaintiff was guilty of contributory negligence in:

(a) failing to take reasonable care for his own safety whilst using the scaffolding;

(b) failing to look where he was going;

(c) failing to use his common sense when working on the scaffolding;

(d) failing to use the specified entry and exit points for the scaffolding; and

(e) climbing down the outside of the scaffolding when it was unsafe to do so.

Further, in relation to (e) above, the defendant pleads that the risk of injury from climbing down the outside of the scaffolding, instead of using the specified entry and exit points, was a risk that in the circumstances would have been obvious to a reasonable person in the position of the plaintiff as per ss 53 and 54 of the Act. And it pleads that the plaintiff voluntarily assumed the risk of climbing down the outside of the scaffold rather than using the specified entry and exit points.
The case at trial

The issues in dispute had narrowed by the time the matter came on for trial. On the day fixed for trial, senior counsel for the defendant indicated that several concessions would be made, including that the defendant was the occupier of the premises, that it owed the plaintiff a duty of care and/or statutory duty as an independent contractor working on the premises, and that the relevant provisions under the Regulations in relation to scaffolding were enlivened in this case.

It then became apparent that the main issues at trial would be as follows:

(a) did the plaintiff fall from an unguarded section of scaffolding and, if so, what were the circumstances of the fall;

(b) did the defendant breach its common law or statutory duty by allowing the plaintiff to work on scaffolding that was incomplete and/or inadequately secured;

(c) if the defendant breached its duty, was that breach a cause of the injuries suffered by the plaintiff;

(i) did the plaintiff suffer from a pre-existing degenerative back condition and, if so, was it aggravated by the defendant’s breach;

(ii) did the plaintiff suffer from a pre-existing degenerative neck condition and, if so, was it aggravated by the defendant’s breach;

(d) did the plaintiff suffer any reasonably foreseeable and recognisable psychiatric injuries as a result of the defendant’s breach;

(e) did the plaintiff suffer cognitive impairment as a result of the defendant’s breach; and

(f) to what extent, if at all, should be plaintiff be compensated for pain and suffering, for past and future economic loss, for past and future gratuitous care and for medical and like expenses?

Applicable principles

It is convenient to restate the principles that apply to the instant proceeding. This may be done in a summary fashion as they are not disputed.

Occupier’s liability

The scope of the duty that an occupier owes towards persons who enter onto land that they own or control is set out in Part IIA of the Act.[21] Relevantly, s 14B(3) provides:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

[21]See also Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.

Section 14B(4) then sets out the factors relevant to whether an occupier has breached their duty of care:

Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—
(a)       the gravity and likelihood of the probable injury;
(b)       the circumstances of the entry onto the premises;
(c)       the nature of the premises;
(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;

(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb) whether the person entering the premises is engaged in an illegal activity;
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

Section 14B(5) provides that the duty imposed by Part IIA of the act does not affect any other obligation to which an occupier may be subject by reason of any other Act, statutory rule, or contract.

Section 14D provides that Part V of the Act, which sets out the framework governing contributory negligence,[22] will apply in respect of any claim brought under Part IIA against an occupier for injury or damage.

Statutory duty under the Regulations

[22]See especially s 26(1), (1B) and (2).

As I have said, the defendant does not dispute that the plaintiff was an independent contractor under the Occupational Health and Safety Act 2004, nor that it owed him a statutory duty whilst he working on the premises.

The specific content of the duty that was owed is concretised in the Regulations. The regulations that were in force as at 30 October 2007 were the Occupational Health and Safety Regulations 2007.[23]
[23]Not the more recent Occupational Health and Safety Regulations 2017.

Relevantly, in relation to independent contractors, r 1.1.8 provides:

(1) A provision of these Regulations that sets out a way that an employer complies with a duty under section 21 or 35 of the Act in relation to employees extends to the employer’s duty under that section to an independent contractor engaged by the employer and any employees of the independent contractor.
(2) If a provision of these Regulations (other than subregulation (1)) provides that an employer’s duty under another provision of these Regulations extends to an independent contractor—
(a) that other provision applies as if a reference to an employee were a reference to an independent contractor engaged by the employer and any employees of the independent contractor; and
(b) the duty of the employer under that other provision extends to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.

Further, with specific reference to scaffolds, r 3.5.43 provides:

An employer must ensure, in relation to scaffolds, that—
(a) no work, other than the work of erecting or dismantling the scaffold, is performed from a scaffold unless the scaffold, or the relevant part of the scaffold, is complete; and
(b) the scaffold is secure and capable of supporting the work to be performed on the scaffold; and
(c) on becoming aware that the scaffold or its supporting structure is in an unsafe condition, appropriate repairs, alterations or additions are carried out before the relevant part of the scaffold is used; and
(d) if a scaffold is left unattended, people who would not ordinarily be using the scaffold are prevented, so far as is reasonably practicable, from gaining access to the scaffold.

Note
Act compliance—sections 21 and 23 (see regulation 1.1.7).

The footnote at the bottom of the above provision directs the reader to r 1.1.7 and ss 21 and 23 of the Occupational Health and Safety Act 2004.

Regulation 1.1.7 provides:

If a note at the foot of a provision of these Regulations states ‘Act compliance’ followed by a reference to a section number, the regulation provision sets out the way in which a person’s duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the regulation provision.
Note
A failure to comply with a duty or obligation under a section of the Act referred to in an ‘Act compliance’ note is an offence to which a penalty applies.

Sections 21 and 23 of the Occupational Health and Safety Act 2004 set out the general duties owed by employers to employees (and independent contractors). Only s 21 is relevant here. It provides as follows:

(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.

(2) Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following—
(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
(c) maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;
(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.

(3) For the purposes of sub-sections (1) and (2)—
(a) a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and
(b) the duties of an employer under those sub-sections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.

(4) An offence against sub-section (1) is an indictable offence.
Note

However, the offence may be heard and determined summarily (see section 53 of, and schedule 4 to, the Magistrates’ Court Act 1989).

Causation

The principles governing causation are set out in s 51 of the Act. Section 51 relevantly provides:

(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).

(2) In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, 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.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(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.

The above framework reflects the development of the common law in Australia and, in particular, the recognition (in subsection (2)) that the traditional ‘but for’ test for factual causation may produce anomalous or unjust results and a court may, in an appropriate case, bridge the evidentiary gap.[24]

[24]See generally Powney v Kerang and District Health (2014) 43 VR 506.

In asking whether the negligence was a ‘necessary condition’ of the occurrence of the harm, as is required by s 51(1)(a) of the Act, the starting point remains the traditional ‘but for’ test. This directs attention to the notion that the defendant’s breach of duty must in some way be causative of the plaintiff’s injuries: if the plaintiff would have suffered injury in any event, regardless of the defendant’s breach of duty, then legal liability will ordinarily fall away.

However, the law does not require the negligence to be a ‘sufficient condition’ of the occurrence of harm, which is to say it accepts that a defendant’s breach may be a cause rather than the cause of the plaintiff’s injuries. This latter proposition follows from well-settled authority. The classic restatement of the ‘common sense’ approach to causation remains that of Mason CJ in March v Stramare (E and MH) Pty Ltd:

It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because ‘questions of cause and consequence are not the same for law as for philosophy and science’, as Windeyer J pointed out in National Insurance Co of New Zealand Ltd v Espagne. In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill’s definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage.[25]

[25](1991) 171 CLR 506, 509 (citations omitted) (‘March’).

The approach of Mason CJ in March was cited with approval by the High Court in Strong v Woolworths Ltd.[26] There the majority said:

Negligent conduct that materially contributes to the plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation[27]

[26][2012] 246 CLR 182 (‘Strong’).

[27]Ibid 194 [26] (French CJ, Gummow, Crennan and Bell JJ) (citations omitted).

There is no dispute as to the normative imposition of liability if and when factual causation is made out. Thus, the test to be applied is whether any negligence on the part of the defendant was a necessary condition of the plaintiff’s injuries, remembering that it will suffice if the defendant can be shown to have materially contributed (in the sense of one cause among others) to those injuries.

It should be kept in mind that, at all times, the plaintiff bears the onus of proving on the balance of probabilities any fact relevant to causation. This is provided for in s 52 of the Act.

Damages

The principles to be applied in assessing damages are provided for in Parts VA and VB of the Act. The correct approach is well-settled and need not be restated here.

It is convenient, however, to briefly restate the approach to be taken in assessing damages in the context of questions as to future or hypothetical effect of physical injury or degeneration. The leading case is Malec v JC Hutton Pty Ltd.[28] That too was a case involving a plaintiff with a pre-existing degenerative back condition. There the plurality of the High Court observed:

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred … But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring … Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.[29]

[28](1990) 169 CLR 638 (‘Malec’).

[29]Ibid 642–3 (citations omitted) (Deane, Gaudron and McHugh JJ) (emphasis added).

Justices Brennan and Dawson, in their separate but agreeing reasons, said:

The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false — for the plaintiff has been injured — the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history.[30]

[30]Ibid 639.

Further, and in the same vein, their Honours said:

In assessing the plaintiff's earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.[31]

[31]Ibid 640.

The reasoning in Malec has been cited with approval in many subsequent decisions.[32] For example, in Tabet v Gett,[33] Gummow ACJ stated that:

The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v JC Hutton Pty Ltd of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example.[34]

[32]See, eg, relevant authorities from this Court and the Court of Appeal including Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 [136]; Smith v Gellibrand Support Services Inc (2013) 42 VR 197; Johnson v Box Hill Institute of TAFE [2014] VSC 626 [454]; Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 [607]; Winky Pop Pty Ltd v Mobil Australia Refining Pty Ltd [2016] VSCA 187 [331]–[341]; Wearne v State of Victoria [2017] VSC 25 [357]; and Wilson v Bauer Media Pty Ltd [2017] VSC 521 [172]. The decision in Bauer Media v Wilson (No 2) [2018] VSCA 154 does not bear on the issue at hand.

[33](2010) 240 CLR 537 (‘Tabet’).

[34]Ibid 557 [39]. See also Kiefel J at 535 [136].

A useful gloss on the application of Malec can be found in the reasons of Ipp JA (with whom Mason P agreed) in Seltsam Pty Ltd v Ghaleb.[35] His Honour held that Malec stood for the following propositions:
[35][2005] NSWCA 208.

(a) in the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring;

(b) the Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred;

(c) the Court must form an estimate of the likelihood of the possibility of alleged future events occurring; and

(d) these matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.[36]

[36]Ibid [103].

Justice Ipp went on to observe that:

Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations—not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.[37]

[37]Ibid [104]–[107] (emphasis in original) (citations omitted).

Further, in Sahin v Victorian WorkCover Authority,[38] the Court of Appeal said:

The assessment of an injured plaintiff’s claim for loss of earning capacity suffered as a result of bodily injury involves questions of fact and degree, and requires estimates and judgments to be made, about matters upon which reasonable minds might differ. More often than not, in assessing an injured plaintiff’s loss of earning capacity, there is no one correct answer. One judge may take a more favourable approach to a party in respect of one issue upon which the assessment falls to be made, but a less favourable approach to the same party on another issue. As was said by the plurality in Husher:
The assessment of damages for loss of future economic capacity involves questions of judgment and estimation. Being an attempt to predict what would have happened, the process can never be exact. The fact that calculations are made by multiplying present values of net income by the expected duration of remaining working life should not obscure that the process is necessarily inexact. Even so, the assessment of lost earning capacity requires some care in identifying (as best one can) what net income the plaintiff would have had at his or her disposal.

It is also correct to say that an injured plaintiff’s income tax returns may not always necessarily reflect a true measure of that person’s income earning capacity or that person’s capacity to earn income that has been lost as a result of an injury.[39]

[38][2017] VSCA 13.

[39]Ibid [37] –[38] (citations omitted).

Damages for attendant care are assessed in accordance with ss 28IA and 28IB of the Act. These damages cannot be awarded unless there is a reasonable need for services that arose solely because of the injury and would not have been provided but for the injury. For example, an injured child cannot recover care provided by its mother unless that care goes beyond what the mother would have provided in the ordinary course of events. The maximum amount recoverable is limited to average weekly earnings in Victoria or, if services are provided for fewer than 40 hours per week, an hourly rate calculated from average weekly earnings. Damages may only be awarded for services of the kind contemplated by the High Court of Australia in Griffiths v Kerkemeyer.[40]
[40](1977) 139 CLR 161.

Damages for gratuitous care can only be awarded if gratuitous services are provided for more than six hours per week or for more than six months.[41] The parties agree that this requirement is not a bar to the plaintiff’s claim.

The trial and witnesses

[41]Section 28IA(2); Alcoa Portland Aluminium Pty Ltd v Victorian Workcover Authority (2007) 18 VR 146.

The trial commenced on 19 February 2019 and ran for a total of 12 sitting days. The following witnesses gave viva voce evidence.

For the plaintiff
·Mr Marin Bucic, the plaintiff;
·Mr Daniel Bucic, the plaintiff’s son;
·Mr Richard Butlin, an accredited occupational health and safety assessor, employed by Precision Scaffolding Pty Ltd;
·Mr Bill Contoyannis, a forensic engineer;
·Mrs Vesna Bucic, the plaintiff’s wife;
·Dr Darko Sulava, the plaintiff’s treating general practitioner from 1993 to October 2013;
·Dr David Kennedy, who provided a medico-legal opinion for the plaintiff’s solicitors;
·Mr Peter Turner, the plaintiff’s treating orthopaedic surgeon at RMH;
·Mr John Karamanos, the plaintiff’s treating psychologist;
·Dr Aejaz Sheriff, the plaintiff’s treating general practitioner from 22 November 2013 to the present;
·Dr Richard Waluk, who provided a medical opinion for the plaintiff’s solicitors;
·Dr Brian Bendzulla, a consultant actuary;
·Dr Alexander Stockman, a rheumatologist who provided a medical opinion for the plaintiff’s solicitors; and
·Mr Marco Bucic, the plaintiff’s son.

For the defendant
·Mr Robert Ferrar, a carpenter, who on 30 October 2007 was working on the premises as an independent contractor;
·Mr Halil Hussan, the sole director of the defendant; and
·Dr Ronald Haig, who provided a medico-legal opinion for the defendant’s solicitors.

The plaintiff’s credibility

It is necessary to say something about the plaintiff as a witness in light of the vigorous attack that was mounted on his credit.

The defendant submitted that, on the subject of his back and neck conditions, the plaintiff is at best an unreliable witness. This was said to follow from his prior inconsistent statements and the histories he gave to several doctors and medico-legal experts.

I agree that, on some issues, the plaintiff was unreliable . However, I consider that this was not due to untruthfulness, but due to his poor memory and confusion. The plaintiff had difficulty recalling events in a clear and coherent sequence. And many of the events in this case, most notably the circumstances of his fall, occurred over a decade ago.

The difficulty with a case such as this one is that the plaintiff has experienced a very serious fall, the immediate injuries were, of themselves, serious and there has been no suggestion they would not have caused him significant pain. In determining whether the fall is a cause or has materially contributed to the plaintiff’s back and neck injuries, the Court and the medical experts have, in a somewhat artificial manner, been asked to divide the plaintiff’s injuries and to treat them almost as if they are discrete, in order to determine the factual causation issues. In doing so, it is very easy to lose sight of the reality of the plaintiff’s situation over more than 12 years.

In assessing the plaintiff’s credit I have taken the following matters into consideration:

(a) he gave his evidence through an Croatian interpreter;

(b) he was cross-examined over two full days about the circumstances of the fall and his back and neck conditions. This involved traversing events as far back as 2006 when he began to experience back pain, his attendances on his general practitioner and at RMH throughout 2007, and his medication usage prior to and after the fall;

(c) The plaintiff suffers from cognitive deficits impacting on his memory and concentration; and

(d) his evidence in relation to his back and neck conditions was corroborated by his family. His wife and sons also gave evidence as to his cognitive decline.

When I consider all of these matters together, despite the fact that the plaintiff was at times unresponsive or unreliable, I am satisfied that he was a witness of truth on the subject of the fall and his back and neck conditions.

I turn now to the evidence that was given at trial. For convenience, I shall break the evidence into three main topics, namely as to the fall, as to the plaintiff’s medical conditions, and as to damages.

The evidence as to the fall

The plaintiff’s evidence was that on 30 October 2007 he arrived early on the premises. He accessed the scaffolding by ascending the internal staircase and stepping out through an open window.

He started to clean the bricks on the upper level on the eastern side of the house. He had two ‘boxes’ of chemicals and a hose to spray the bricks. He finished cleaning the bricks on the eastern side and moved around to the northern side of the house. He cleaned some bricks and then climbed up onto the raised scaffolding bay on the northern side of the house. This was about a metre higher than the rest of the scaffolding.[42] He felt some slight movement of the scaffolding.[43] He was pulling on his hose when he fell.[44] The last thing he remembers before falling was standing on the scaffolding. He said he could recall the sensation of falling.
[42]T90.
[43]T91.13–91.14.
[44]T91.15–91.18.

In cross-examination the plaintiff maintained he was pulling on the hose when he fell.[45] His next memory was of lying on the ground and getting his phone out of his pocket. He could not recall whether he then crawled around to the eastern side of the house.[46] He denied he was trying to climb down the outside of the scaffold when he fell. He said that from when he fell until when the paramedics arrived he could not remember seeing anybody. He did not know who called the ambulance.
[45]T132.13
[46]T133.

Two affidavits sworn by the plaintiff, dated 1 February 2010[47] and 26 October 2012, were tendered into evidence. The second one was a re-sworn version of the first one. In the first affidavit the plaintiff deposed as follows:
[47]Exhibit D3.

The scaffolding provided by [the defendant] was very flimsy and shaky. As I was cleaning the bricks on the upper storey on the north side of the house, the scaffolding gave way under me and I fell approximately six metres to the ground.

In the second affidavit the plaintiff deposed as follows:
The scaffolding provided by [the defendant] was very flimsy and shaky. As I was cleaning the bricks on the upper storey of the north side of the house, the scaffolding was shaky, unstable with no railing and I fell approximately six metres to the ground.

I note that in swearing his first affidavit the plaintiff did not have the assistance of an interpreter.[48] I consider this adequately explains the discrepancy between his first and second affidavits.[49]

[48]T159.28; T161.

[49]T161.

The plaintiff swore two lots of answers to interrogatories dated 30 May 2018 and 21 June 2018.[50] It was put to the plaintiff at trial that his account of the fall had changed from that given in his answers to interrogatories. He said that his English is very poor and that the drafter of the document must have misunderstood him.[51] He suggested the inconsistency was because he answered the wrong question, or was under stress at the time, despite having an interpreter.[52]
[50]Exhibit D2.
[51]T161–162.
[52]T165.

I see no real inconsistency between the plaintiff’s answers to interrogatories and his viva voce evidence. The plaintiff’s account as to how he fell was generally believable. While his recollection of events was limited, he was steadfast about two things, namely that the raised scaffolding bay was shaky and that he was pulling on his hose when he fell.

As I have said, there were no witnesses to the fall, and the last person to see the plaintiff was ‘Simon’. It was he who alerted Mr Ferrar. Simon was not called to give evidence; Mr Ferrar was. I have already set out the relevant parts of Mr Ferrar’s evidence.[53]
[53]At [26] above.

The evidence as to the plaintiff’s medical conditions

I will deal firstly with the plaintiff’s evidence and that of his family. I will then summarise the evidence of the medical witnesses. It will become apparent that the plaintiff suffers from a raft of physical and mental health problems—some of which pre-dated the fall—which do not lend themselves to neat discrimination.

The plaintiff’s evidence

The plaintiff did not have a detailed recall of his back pain prior to the fall or of the various medications he was taking. However, he maintained that his back pain was more severe after the fall, emphatically repeating that it was ‘100 times worse’.[54] Similarly, he did not know how much he worked prior to the fall, nor when he declined the surgery that was offered. But he was adamant that in the month or so before the fall his symptoms improved. He said he was able to work despite some ‘nipping pain’ in his right leg.[55]
[54]T98.5.
[55]T88.9; 113.15.

The plaintiff’s evidence was that, prior to the fall, he had a ‘pinched nerve’ in his back.[56] He recalled he was referred to RMH in April 2007 and reported these symptoms:
[56]T83.1–4.

And by ‘pinched nerve’ – did you have pain – where did you have pain?---In my back.
In your back. And did you have pain anywhere else from that pinched nerve?‑‑‑No, nowhere else.
…
And then when you went back to the hospital in May 2007, again, how was your back feeling?---Same.
All right. What effect did the injection have?---It helped little bit, but not too much.
…
And in June 2007, were you seen by an orthopaedic surgeon, Mr Peter Turner?‑‑‑Yes.
And did you have a discussion with Mr Turner about whether you might have an operation on your back?---Yes.
As a result of that discussion, were you put on a waiting list?---Yes.
All right. And as the weeks passed in July and August 2007, what was happening in relation to the level of back pain? Was it staying the same, getting better, getting worse?---It really depended on the level of medication I was taking and on the day. Sometimes I felt better; other times I felt a little bit worse.
All right. And do you say during this time you were working full-time or part-time?---Again, it depended on how much work was available.
If there was a full week’s work available, five or six days, what do you say as to whether or not you were able to carry out a full week’s work at that time, in July and August, September 2007?---Yes. I could continue.[57]

[57]T83.3–84.11 (emphasis added).

The plaintiff was cross-examined about his pre-existing degenerative back condition. He was taken to the RMH notes in detail. The notes reveal that in early 2007 his back condition had become symptomatic in the form of an L4-5 disc prolapse. The plaintiff complained of back and right leg pain and his symptoms were sufficiently serious to be placed on the waiting list for elective surgery. The plaintiff was not able to recall the detail of any of these matters in cross-examination.

The tenor of the plaintiff’s cross-examination is evident from the following portion of transcript:

In any event, it is recorded here that you’ve told the doctor that you’ve had four months of right leg pain?---I don’t – I don’t remember. I can’t say.
Okay. Would it be your position, ‘I don’t remember, but if it’s recorded in the hospital notes I’ll accept it as correct’---Well, it means I was there, yes.
And do you accept that you did tell them that you had four months of right leg pain?---I don’t remember so many years ago. I can’t remember.
Okay. So first thing is, you’re not in a position to dispute it and say it’s wrong?---I can’t say that. I don’t know.
Okay. Well, then I want you to deal with this – and can I take it that your position in relation to anything that’s recorded by way of complaints in 2007 you just can’t remember?---I went through hundreds of examinations. I went through hundreds of physicians. Where, when, I don’t know.
Okay, all right. Let’s just work on the basis that what’s recorded here is correct. I understand your position is you can’t remember but let’s just accept that what’s recorded here is correct. The situation is that at April 2007, you’ve had four months of right leg pain?---I don’t know.
As in always there---I can only tell you that my leg pain became worse after the fall.
I just want you to stick with this at the moment. By April 2007 you’d had four months of constant pain in your right leg, from your buttocks all the way down to your big toe?---Seven years ago. How would I know when my leg started aching? …
No, that the pain was getting worse?---I remember that I was in pain. Sometimes pain, sometimes severe pain. How would I remember 12 years ago and when the pain was worse? [58]

[58]T297.20.

The plaintiff was, however, clear about the increased severity of his back pain after the fall:

[W]hen you say a hundred times worse – you mean it’s very, very different?---Yes, that’s why I had two surgeries after that. …
You said this on Tuesday?---I remember saying to a question to my representative that, yes, after I left, my back was a hundred times …
Yes?---When I fell it was a hundred times worse.
Yes. So from the time of the fall it’s a hundred times worse?---Yes.

The plaintiff was challenged about his evidence in an affidavit in an earlier proceeding, sworn 1 February 2010. The plaintiff was taken to the following paragraph:

I had always enjoyed very good health until 2007 when I first developed a sore back. I was on medication for some time and also had some injections. However, the condition gradually improved to the point that it had largely resolved, and I was able to perform my duties as a brick cleaner without difficulty prior to the incident which is the subject of this application occurring on the 30^th day of October 2007.[59]

It was put to the plaintiff that, given his inability to remember the details of his back pain before the fall, he must have been lying in his affidavit. The plaintiff disagreed.[60] I accept that the plaintiff had difficulty recalling the precise nature of his back pain prior to the fall. However, as I have said, he was clear about the increase in back pain after the fall.

[59]Exhibit D3 [5].

[60]T322.20–28.

It was also put to the plaintiff that he has been an unreliable historian with several medical practitioners. The plaintiff again blamed his memory and insisted that he has not been untruthful:

What I want to suggest … is that you have seen a number of doctors … and to none of them have you given an accurate history about the condition of your back and right leg pain before your fall?---You mean – are you meaning to say that I didn’t tell my history, my …
You didn’t give them an accurate history about how bad your back and right leg pain were before the fall?---I don’t know. I can’t remember.[61]

[61]T328, l 13-22.

The plaintiff gave similar evidence as to his neck condition. He said that, prior to the fall, he had no neck pain; however, after the fall, he has never been without it.[62] The plaintiff said that when the paramedics arrived on 30 October 2007, he could not recall any pain in his neck. He lost consciousness and was given medication and so did not feel any pain when he arrived at RMH.[63] However, by the time of discharge, he recalled pain in his chest, head, ribs and arm.[64] He said that he had pain from the ‘top of [his] head to [his] feet’.[65]
[62]T109.1.
[63]T97.10–13.
[64]T97.22–3.
[65]T97.28–9.

The plaintiff returned to work in June 2008 but found it very difficult because he was ‘sore all over’.[66] Later, in 2009 to 2010, he worked as much he could. He was not able to work full time because of the pain in his ‘neck, leg and arm’.[67] In 2011, after the revision discectomy, he felt ‘a lot of pain’ and it got worse over the year.[68] In August 2012, he was referred to Mr Turner, who raised the prospect of surgery on his cervical spine. Mr Turner told him he could end up in a wheelchair if he did not have the surgery. However, after having the procedure explained to him, the plaintiff was too scared and declined.[69]
[66]T112.29–31.
[67]T114.3–11.
[68]T114.24.
[69]T115.

The plaintiff continued to work in late 2012. He said that despite the pain, he had ‘to live … what was I going to live on?’.[70] He also worked through most of 2013. However, in October 2013, he was walking along the street when his ‘leg just gave way and [he] fell’.[71] He ended up at RMH and was operated on for the third time by Mr Turner. He has not worked full-time since.[72]
[70]T115.9–20.
[71]T115.24–5.
[72]T116.9.

In cross-examination the plaintiff maintained that he has had constant neck pain since the fall.[73] He described it as being sharp and going down his right shoulder. He was adamant that it started before July 2012 and that he told everybody, including the doctors at RMH, about it.[74] He said it was not his fault if they failed to note it in their records.[75] The plaintiff was taken to the records of Dr Sulava and Dr Stockman from 2011. It was put to him that he did not tell either of them about neck pain. He repeated that he had told ‘[e]very doctor, every specialist that [he] had seen since leaving [RMH],’ and it was not his fault if they had not recorded his complaints.[76]
[73]T178.12–13.
[74]T182.4.
[75]T182.3–6.
[76]T183.7–10.

The plaintiff was asked to explain why he made no mention of neck pain in his 1 February 2010 affidavit.[77] He said:
[77]Exhibit D3.

I don’t know what I had said to me, I don’t know what he’s written down. I don’t know … I repeat again, that I have told everybody. I’m repeating it to you that I did have neck pain and I told everybody about it.[78]

He was then asked to explain why, in his 26 October 2012 affidavit,[79] he deposed that he had ‘only recently developed’ neck and arm pain:
And so the truth is, as at October 2012, you recently developed neck and arm pain?---Ah, I remember telling everybody right from the start I had pain in my neck. What I – when I signed the documents, I signed that to be true.[80]

The plaintiff could not explain why the RMH notes record that he developed neck pain in the three weeks prior to 10 August 2012.

[78]T185.5–20.

[79]Various exhibit D3.

[80]T187.1–5.

The plaintiff’s evidence about his psychiatric condition was that, in February 2014, he was referred to a psychologist, Mr Karamanos, because he felt lonely and without hope.[81] He saw Mr Karamanos until late 2018 then he stopped due to financial difficulties. The plaintiff also saw a psychiatrist, Dr Kaplan, throughout 2014 and 2015. He recalled being prescribed antidepressant medication to help him sleep.[82]

Vesna Bucic’s evidence

[81]T119.21.

[82]T120.1–4.

The plaintiff’s wife, Vesna Bucic, gave her evidence in a measured and straightforward manner.

Vesna said that in the four months before the fall the plaintiff continued to work and ‘seemed to be okay’.[83] She said he was taking painkillers but did not know which ones or how many.[84] In the seven weeks before the fall, when he declined to have surgery, Vesna said the plaintiff was ‘able to work’ and ‘seemed fine’ on painkillers.[85]
[83]T456.10–14.
[84]T456.15–18.
[85]T456.26–29.

Vesna was asked whether the plaintiff’s affidavit sworn 1 February 2010 is accurate.[86] She said it is ‘very accurate’ as to his back condition before the fall.[87] Vesna said that, after the fall, she became aware of things troubling the plaintiff. These were ‘his back, his leg and his neck … and his chest.’[88] She said he never complained of neck pain before the fall.[89]
[86]See [97] above.
[87]T457.18.
[88]T460.17-19.
[89]T460.21.

Vesna cared for the plaintiff in the two-months immediately after the fall. She said ‘his back was hurting, his neck was hurting, his head … just about everything [was hurting]’.[90]
[90]T461.3-7.

Vesna was cross-examined as to why she could remember the details of the plaintiff’s pain after the fall but not before the fall. The transcript records the following exchange:

Well, when you – Madam – when I ask you questions about, ‘Do you know how bad the pain was?’ you say, ‘Well – I’m not the person who feels the pain. I’m not the patient’?---That’s right.
So why does that not apply to your knowledge of his pain after the fall?---Because after the fall, he – when he fell when he was in hospital, he was screaming from pain, he was moaning in pain, he never did that before the fall.[91]

In re-examination Vesna said she had accompanied the plaintiff on his visits to Dr Sulava and heard him complain of back and neck pain.[92]

[91]T487.24-31.

[92]T490.9-11.

Vesna was asked about the plaintiff’s current level of pain. She said:

He’s – look, he’s always in pain. He – sometimes more, sometimes less, but he’s always in pain. The … neck – he’s always, umm, complaining of, umm – actually he was supposed – at one stage, he went to the emergency department for his neck and he was supposed to have neck surgery. He was placed on the waiting list again for neck surgery, but he declined it. He’s too scared to have it.[93]

In cross-examination Vesna maintained that the plaintiff has had neck pain since the fall despite not being able to recall any ‘specific times’ or ‘specific treatments’ prior to February 2011.[94]

[93]475.1–8.

[94]T485.23–7.

Vesna confirmed that the plaintiff has sought help from a psychologist and psychiatrist for anxiety and depression. She said he is often depressed, anxious, worried and unhappy.[95] He is also forgetful and agitated.[96] She said he regularly repeats himself and will often ask her the same question every ten minutes.[97]

Daniel Bucic’s evidence

[95]T471.12–24.

[96]T471.1-6; T466.28-29.

[97]T474.6-14.

Daniel Bucic is the plaintiff’s eldest son. He recalled something being wrong with the plaintiff’s back prior to the fall but said it was ‘nothing dramatic’.[98]
[98]T355.14–15.

Daniel said that before the fall the plaintiff was able to do household work and gardening. He worked five and sometimes six or seven days per week. Daniel said that in the four to six months before the fall the plaintiff worked independently and without any restrictions.[99]
[99]T356.30–357.5.

In Daniel’s opinion the plaintiff’s 1 February 2010 affidavit was accurate.[100] He said the plaintiff had back pain directly after the fall.[101]
[100]See [97] above.
[101]T359.26–27.

Daniel said of the plaintiff’s neck condition after the fall:

And did you ever observe your father experiencing any pain in his neck?‑‑‑Yes.
…
[And] how close was it to [the fall]? It was – it feels like it was a close time, very close to it. So from my memory it was straight after the accident, that’s when all this started.[102]

He added that the plaintiff had gotten ‘one hundred per cent worse’ from 30 October 2007 to today.[103]

[102]T359.27–360.8.

[103]T364.29.

Daniel said his father experienced ‘extreme depression’ after the fall.

It was put to Daniel that his memory of the plaintiff before the fall was limited as he was not then living with his parents. He agreed before he ‘wasn’t around [the plaintiff] every day’ and nor were these things ‘fresh in [his] mind’.[104]

Marco Bucic’s evidence

[104]T385.7–12.

Marco Bucic is the younger brother of Daniel Bucic. He said he knew the plaintiff had a ‘pinched nerve’ in his back in the 12 months before the fall.

Marco recalled the plaintiff complaining of back, leg and neck pain after the fall.[105] He was not aware the plaintiff had been put on the waiting list for elective surgery before the fall.
[105]T 757.17-23.

In any event, the plaintiff and Dr Sulava both gave evidence that he did complain of back pain after the fall, and Dr Sulava explained that he probably made no record because it was not the primary problem. I note that Dr Sulava’s records of the plaintiff’s back pain in the years before the fall are scant. Yet there is no dispute that the plaintiff had back pain prior to the fall.

The defendant submitted that the RMH notes are inconsistent with the plaintiff’s description of his back pain before and after the fall. I disagree. The plaintiff did not hide the fact that, before the fall, his back pain was such that he took time off work and asked to be put on the waiting list for elective surgery. However, the plaintiff and his family recalled his back pain being much worse after the fall, despite the lack any note in the medical record. Common sense says that the plaintiff’s presentation in the six weeks after the fall must have been affected by the multitude of injuries he sustained.

When asked about his back pain after the fall, the plaintiff’s evidence was that ‘[i]t was harder and harder’.[342] The fact that he decided to undergo surgery on 12 March 2008 lends weight to this proposition. The plaintiff said he did not wish to have the surgery in September 2007, as he was scared and his back had improved, yet by March 2008 he agreed to have the surgery. I found Mr Turner’s evidence on this point persuasive.
[342]T98.17.

I consider that on the balance of probabilities the plaintiff’s fall aggravated his pre‑existing degenerative back condition. I note that in March 2008, long before litigation was contemplated, Dr Sulava opined that the plaintiff ‘has had a back operation which … [was the] result of a fall which aggravated a pre-existing condition.’[343] The balance of the medico-legal evidence tended to corroborate this initial opinion.
[343]Exhibit P7.

Mr Turner, who performed three operations on the plaintiff, opined that the plaintiff’s fall was a significant one and that, as such, it could have jarred or damaged his spine. He did not know the plaintiff had suffered a fall until he was informed by the plaintiff’s solicitors. Nevertheless, having learned of this fact, he opined that it is consistent with the evolution of the plaintiff’s spinal condition. He said that, given the plaintiff was already showing pathological changes, it was likely the symptoms associated with those changes would be exacerbated by the fall.[344] He explained that most disc prolapses get better if the patient works on their core strength and rehabilitation.[345]
[344]T628.17.
[345]T602.9-10.

Mr Haig agreed that if the plaintiff’s back was improving before the fall but got much worse after the fall, such that he decided to have surgery, then the fall was clearly connected to the surgery. Importantly, Mr Haig opined that if the fall aggravated the disc and caused it to be symptomatic, then those events would continue to play a part in the evolution of the plaintiff’s back condition thereafter.[346]
[346]T832.27-833.1.

Dr Kennedy, whose evidence was perhaps strongest for the plaintiff, said that, even though the plaintiff had a pre-existing back condition, the fall significantly accelerated it and led to the need for surgery. He noted plaintiff had had three bouts of surgery culminating in a spinal fusion.

It may be that, but for the fall, the plaintiff’s L4-5 disc prolapse would have recovered. We will never know. In any event, the fall intervened, leading to the need for surgery—ultimately three bouts of surgery—and the onset of foot drop and other complications. In my view, it is more probable than not that the fall was a cause or materially contributed to the plaintiff’s back condition, requiring him to undergo surgical procedures that he would not otherwise have needed. I note that, while it is not probative of causation, all of the medical experts considered the plaintiff’s fall to have been capable of causing serious injury or death.

Next I turn to the plaintiff’s neck condition. Once again, I accept the evidence of the plaintiff and his family that he had no neck pain before the fall, but has had pain ever since. The defendant relies on the timing of the plaintiff’s complaints of neck pain in the medical records to assert that the plaintiff’s disc prolapse at C6-7 was not caused or materially contributed to by the fall. In particular, the defendant points to the fact that there is no record of pain until February 2011, some three and a half years after the fall.

The medical experts agreed that the history of the plaintiff’s symptoms is central to understanding whether the fall caused or materially contributed to his neck condition. The situation is not as straightforward as it is with respect to his back condition. There, despite the lack of a record of back pain in the RMH file or Dr Sulava’s notes, the need for surgery four and a half months later suggests the plaintiff aggravated his back condition in the fall. By contrast, the first recorded complaint of neck pain is in early February 2011, around three and a half years later.

Given my earlier findings, there can be no doubt the plaintiff experienced a very serious fall, which could have killed him or left him a paraplegic. Immediately afterwards, the plaintiff was suffering from other injuries, including a fractured wrist, fractured ribs, a collapsed lung and a laceration to his head. The plaintiff’s initial focus in terms of complaints and treatment would have been on these acute and pressing injuries. This was, once again, the view taken by the medical experts.

Vesna Bucic’s evidence was that the plaintiff complained immediately after the fall about his back, neck and chest. She said he complained mainly about his chest. This does not mean he did not have neck pain at the time, only that the chest pain was his central focus, as one might expect.

I consider on the balance of probabilities that the plaintiff’s fall aggravated or exacerbated a pre-existing degenerative neck condition. This resulted in the underlying pathology becoming symptomatic, in the form of neck pain, such that his clinical picture became clearer with the passage of time.

The plaintiff’s treatment and the timing of that treatment is consistent with Dr Kennedy’s opinion. Immediately after the fall, the plaintiff was dealing with his acute issues; but then, his back pain escalated, requiring surgery by March 2008. By June 2008 the plaintiff attempted a return to work and, by October 2008, he was seeing Mr Turner about numbness in his right leg. In February 2011, the plaintiff underwent a follow-up open discectomy at L4-5, and his neck pain had escalated to the point that a CT scan was ordered. In this same period, after the plaintiff’s second operation, he developed foot drop and began to wear an orthosis.

This was, as Dr Sulava said, a situation where, relative to the plaintiff’s other concerns, the neck pain was not front and centre. More pressing were the acute injuries and then the treatment of the plaintiff’s back condition. As I have said, the lack of objective records does not necessarily mean the plaintiff was not experiencing neck pain, only that he had not yet reported these symptoms.

There is a divergence in opinion between the medical experts as to whether the plaintiff’s neck injury was caused or materially contributed to by the fall. Mr Turner stated that there is a possible link between the fall and the plaintiff’s neck condition; however, he considered that the temporal gap between the onset of symptoms requiring medical intervention made it more difficult to be certain of the link. Dr Kennedy did not dismiss the passage of time between the fall and the onset of symptoms as ‘irrelevant’ but said it was not an absolute linear relationship and depended on all the other factors from 2007 to 2012.

Given the ‘other factors’ from 2007 to 2012, the very nature of the fall and the plaintiff’s and Vesna Bucic’s evidence, I accept Dr Kennedy’s opinion that, on the balance of probabilities, the plaintiff sustained injuries to his cervical spine at the time of the fall. It is likely that the initial damage was to several intervertebral discs; this did not produce any symptoms requiring intervention until eventually a prolapse occurred. Dr Sheriff’s evidence was consistent with Dr Kennedy’s in this regard.

Mr Haig’s evidence was more equivocal. He agreed in cross-examination that a history of ongoing problems in the plaintiff’s neck could lead to a conclusion that the fall caused them. However, when pressed, he maintained his opinion that it was unlikely that the plaintiff’s severe neck pain, radiating into his arm, was related to the fall.

The question of whether the fall caused or materially contributed to the plaintiff’s C6‑7 prolapse and resulting compression of the C7 nerve root is not straightforward. The evidence suggests the plaintiff may have pathology in the upper cervical spine, which may explain his neck complaints to Dr Stockman in December 2011, of pain radiating to the occiput and right temporal areas. Then there is the pathology at C6-7 and the complaints of sharp neck pain and arm pain.

Mr Turner opined that the unrelated left-sided prolapse at C4-5 in April 2016 indicated a progressive degenerative condition affecting the cervical spine.[347] Yet Mr Turner said that such a condition does not automatically explain what has happened to the plaintiff.[348] He agreed that one explanation for the plaintiff’s neck condition was progressive deterioration.[349] But he said that, as there is no imaging of the plaintiff’s neck between the fall and the disc prolapse, we cannot know what was going on in the plaintiff’s neck over that time. He said that the link between the fall and the plaintiff’s neck condition is uncertain.[350]
[347]T621.22-T623.18.
[348]T621.22-T622.23.
[349]T623.5-11.
[350]T624.28-31; 625.1-18.

In conclusion, Mr Turner, in what I consider was very measured evidence, said in re-examination, and it bears repeating:

I think if one accepts that he had symptoms of neck pain from the time of the fall and the neck pain had been ongoing, fluctuating, perhaps, but ongoing, it wasn’t till he developed neck–type referral into his arm that the symptoms were taken seriously, the possibility of a connection is reasonably strong, but equally, the longer the time between an incident that is potentially to blame and the development of symptoms that require active medical intervention – the longer that interval, the more difficult it is to be certain of that link. … You can believe that it’s probable, but you can’t state categorically that the connection exists.[351]

[351]T629.26–630.7 (emphasis added).

I turn lastly to the question of whether the plaintiff’s cognitive and psychiatric injuries were caused or materially contributed to by the fall. I agree with the defendant that these conditions are responsive to the plaintiff’s physical injuries. Thus, given my findings that the fall caused or materially contributed to the plaintiff’s back and neck conditions, it follows that I have also found that his cognitive and psychiatric injuries are attributable, at least in part, to the defendant’s negligence.

I accept Mr Karamanos’ evidence that the plaintiff has developed significant symptoms of depression and anxiety since the fall. His opinion is corroborated by the evidence of Dr Kaplan. The evidence of Vesna and Daniel Bucic as to the plaintiff’s psychiatric injuries was on the whole consistent with that given by the medical experts. Daniel said his father had not experienced anxiety or depression prior to the fall; however, after the fall, he suffered from ‘extreme depression’. Vesna said that after the fall the plaintiff sought professional treatment from a psychologist and psychiatrist for anxiety and depression.

As for the plaintiff’s cognitive injuries, Dr Sheriff’s evidence was that the plaintiff’s higher functions have been affected since the fall, suggesting sequelae of a closed head injury. Dr Karamanos’ evidence was that the plaintiff’s concentration was impaired, with evidence of slowed and confused thinking and forgetfulness, which is consistent with cognitive deficit. Finally, Dr Kaplan noted the plaintiff’s complaints of forgetfulness, poor concentration and insomnia. Consistent with the medical evidence, Vesna and Daniel Bucic described the deterioration of the plaintiff’s memory after the fall.

I am satisfied on the balance of probabilities that the fall caused or materially contributed to the plaintiff’s psychiatric and cognitive injuries. There is no evidence the plaintiff suffered from these conditions before the fall and the evidence of the lay witnesses is on the whole consistent with the medical evidence.

In summary, for the above reasons, I consider the plaintiff suffered the following injuries as a result of the defendant’s negligence:

(a) aggravation and exacerbation of L4-5 disc injury, requiring the plaintiff to undergo a L4-5 discectomy in March 2008; an additional discectomy in February 2011; and a revision laminectomy at L4-5, combined with an instrumental spinal fusion on 16 October 2013;

(b) the development of right foot drop as a consequence of the 16 October 2013 surgery;

(c) neck injury resulting in a prolapse at C6-7 with pain radiating to his right arm and fingers;

(d) right wrist injury with ongoing weakness and ‘disturbed symptoms’ in his right hand;

(e) fractured ribs;

(f) a collapsed lung;

(g) a major depressive disorder with anxiety; and

(h) cognitive deficits impacting on the plaintiff’s memory and concentration.

General damages

The plaintiff submitted that a reasonable assessment for pain and suffering damages was no less than $400,000. The defendant submitted that general damages should be allowed at no more than $40,000 on the basis that the only injuries connected to the fall were the fractured ribs, fractured right wrist, collapsed lung and scalp lacerations sustained at the time of the fall.

In assessing the plaintiff’s claim for pain and suffering, I take into account the injuries referred to in the preceding paragraph, which I consider flowed from the fall. I also take into account the plaintiff’s neck pain, which is ongoing and unlikely to improve in the future, and his psychiatric and cognitive injuries. The evidence demonstrates the plaintiff is no longer able to participate in his social life in the way he did before and that, as he put it, he has been left ‘a broken man’.

True it is that the plaintiff had a pre-existing degenerative back condition which caused him significant pain and limited his capacity to work in the first six or so months in 2007. However, the plaintiff’s evidence and that of his family is that he aggravated his back condition in the fall, which led shortly thereafter to surgery and significant restriction. Two more bouts of surgery followed as well as the onset of symptoms in his neck and responsive psychiatric and cognitive injuries. On any view, the plaintiff has been significantly affected, whether the back condition is considered in isolation or together with the other injuries.

The plaintiff’s pain and suffering and loss of enjoyment of life from September 2007 to date and into the future is significant. The plaintiff is 61 years old and has lived a highly restricted live for almost 12 years. The impact is permanent given the residual problems I have outlined, including his foot drop, the fusion surgery and his neck condition. Surgery to his neck may provide some relief; however, given the outcome of his back surgery and his inherent fear of surgery, the plaintiff has understandably opted not to have any surgery at this stage.

In the circumstances, given the number of injuries and their permanent and ongoing nature, I consider that a reasonable allowance for pain and suffering damages is in the order of $300,000.

Economic loss

I find that the plaintiff was partially incapacitated for work from September 2007 until October 2013 and has been totally incapacitated thereafter.

The plaintiff was self-employed as a brick cleaner. He had been working in this role since he started his business in 1983. I consider that, but for his injuries, he would have continued to work until the age of 67. At the time he suffered injury the plaintiff was working five, six or seven days a week, when work was available.

The plaintiff’s claim for past and future pecuniary loss is not straightforward. What must be remembered, under this head of damage, is that the law compensates for loss of earning capacity rather than loss of earnings. The evidence is that the plaintiff at all times before the fall had the capacity and willingness to work full time as a brick cleaner.

I turn to the evidence of his actual past loss of earnings to assist in the calculation of the plaintiff’s earning capacity.

The plaintiff’s tax returns demonstrate significant variability in his income. For the financial year ending 30 June 2003, it was $880; for 2004, it was $5,113; for 2005, it was $46,066; for 2006, it was $46,684; and for 2007, it was $12,788. No evidence was put before the Court to explain this variability. There was some mention of the plaintiff having had bladder cancer in 2002 or 2003 but no evidence as to the extent of his illness or its impact on his earning capacity. The returns from the financial years ending 30 June 2008 to 30 June 2013 are also variable. This was comprehensible in light of the evidence as to the effect of the fall on the plaintiff’s earning capacity. There is no real dispute that the plaintiff’s injuries by 30 June 2013 were such that he was incapacitated for any manual job. The defendant did not submit that the plaintiff was not amenable to vocational retraining or that he was able but unwilling to work.

To be clear, I am satisfied that even if the plaintiff’s neck condition was not caused or materially contributed to by the fall, by October 2013 the fusion surgery and development of foot drop would have rendered him incapacitated for work. In other words, as I see it, the plaintiff’s back condition alone would account for his permanent inability to work.

The defendant submitted that, given the variability in the plaintiff’s tax returns, I should average his income over the 10 years and calculate for loss of earnings using that figure. The plaintiff contended that I should use his earnings in the 17 weeks prior to the fall. This produces an average of $1200 per week or approximately $62,400 per annum. I do not accept either of these submissions.

The plaintiff worked very hard as a brick cleaner and often worked five days per week or more. The problem is that nowhere in the financial years ending 30 June 2003 to 30 June 2006 did he earn more than $46,684. There is an explanation for why he earned less in the year ending 30 June 2008, namely the fall, which also explains the subsequent variations to 30 June 2013.

What is crucial, in deciding whether to apply a three per cent increase per annum or work with an average of the plaintiff’s earnings, is whether his income in the 17 weeks prior to the fall is indicative of what he might have earned but for the fall. As I have said, despite having a strong work ethic, the evidence suggests there was extreme variability in the amount of work available to him.

I accept that the plaintiff worked for approximately four months before the fall and earned $20,406 before tax. However, given the variability just described, I cannot see how the $62,400 per annum claimed by the plaintiff reflects a reasonable assessment of his earning capacity. The evidence does not support the proposition that, at the time of his fall, the plaintiff had a reasonable expectation of working consistently so as to generate an annual taxable income of $62,400. Nor do his tax returns support the methodology of a three per cent annual increase used by Mr Bendzulla. On the other hand, the difficulty with the plaintiff’s tax returns after the fall is that they do not reflect his true earning capacity, since he was increasingly restricted and debilitated by the evolution of his back and neck conditions.

In my assessment of the plaintiff’s past and future earning capacity I also take into account the prospect that his pre-existing back condition would have deteriorated on its own accord. This would have impacted on his ability to work regardless of the fall and the injuries he sustained therein.

My finding that the plaintiff suffered an aggravation of his pre-existing degenerative back condition impels consideration of the principles in Malec.[352] Malec holds that a plaintiff such as the present will be entitled to damages if the evidence shows that on the balance of probabilities it was caused or materially contributed by the negligence of the defendant. This is a question of fact as to a past event. However, a different approach is to be taken for future events, such as whether the plaintiff’s pre-existing degenerative back condition would have deteriorated and restricted him from work. Malec holds that I must assess this hypothetical event as a probability. The plaintiff’s damages must be reduced accordingly: for example, if I find that there was a 30 per cent chance his back would have deteriorated on its own then I must make a 30 per cent reduction, regardless of whether the event would have occurred before or might occur after the assessment of damages.[353]
[352](1990) 169 CLR 638.
[353]Ibid 642–3.

As I have said, I am satisfied that the plaintiff had a pre-existing degenerative back condition in early 2007, which may have deteriorated on its own. This finding has been explicitly addressed earlier in my reasons and I will not repeat the analysis here save to say that I must make an adjustment to reflect the probability of this hypothetical event.[354] I note that in Club Italia (Geelong) Inc v Ritchie[355] the Court of Appeal observed that, as a rule of thumb, discounts for vicissitudes in personal injury cases are usually in the order of 15 per cent (emphasising that each case will turn on its own facts).
[354]See [290]–[294] above.
[355](2001) 3 VR 447, 464 [57].

Here the plaintiff has suffered an aggravation of his pre-existing degenerative back condition leading to three bouts of surgery. The plaintiff’s back was clearly fragile before the fall and he was struggling to work for much of 2007 (and even then was only able to work on an increasing amount of analgesic medication). Having regard to the totality of the evidence I cannot rule out the possibility that the plaintiff would not have been able to continue in his work by reason of his pre-existing degenerative back condition. Nor can I discount the possibility that he would have recovered and made a full return to work.

It is therefore appropriate to apply a greater than usual discount for vicissitudes. I agree with the plaintiff that a discount of 30 per cent is appropriate. I note that the concept of a discount for vicissitudes is subsumed in the analysis of Malec principles and that this conceptually applies to both past and future pecuniary loss as well as pain and suffering damages.

It is impossible to be precise in a case like this. I consider that the plaintiff’s taxable income in the financial years ending 30 June 2005 and 30 June 2006 is the most accurate reflection of his earning capacity but for the fall. He would have continued to earn at least that amount into the future combined with annual increases. In some years he may have earned more, in some less, as he said himself. The plaintiff is entitled to loss of earnings from the date of the fall to the present time and into the future.

An appropriate basis to assess loss of earnings and loss of earning capacity is to take account of the plaintiff’s earnings in the years leading up to the fall. When one considers his past earnings, including pre- and post-fall earnings, it can be seen that, in his best years, he earned $40,935 (30 June 2013), $40,495 (30 June 2012), $46,684 (30 June 2006), $46,066 (30 June 2005) and, accepting the plaintiff’s evidence and submissions, $62,400 (30 June 2008). Having regard to the totality of the evidence, including the gaps in the evidence, I consider the starting point is to average the three highest returns in the pre-fall period. As I have said, the plaintiff’s earnings post-fall demonstrate his capacity to earn, which he exercised to his maximum ability. The returns for the financial years ending 30 June 2011 to 30 June 2013 show a steady rise in earning capacity to nearly pre-injury amounts.

Yet the pre- and post-fall returns are only one piece of evidence to assist me in the task of estimating the plaintiff’s loss of earning capacity. I have also considered the following evidence: the plaintiff worked up to seven days a week when work was available; the plaintiff continued to work even when in significant pain; and the plaintiff enjoyed his work and earning money.[356] The plaintiff said he would have worked to age 70 despite the relatively arduous nature of brick cleaning.
[356]T81.3–82.5.

I consider it appropriate to assess loss of earnings to age 67. I find that the sum of $51,720 gross per annum should be used assess the plaintiff’s earnings as at the date of the injury. I have allowed a three per cent annual increase in earnings. I have allowed a modest sum for taxation and have reduced the figures for the plaintiff’s past earnings. Allowing a reduction of 30 per cent for vicissitudes, I consider a sum of $250,000 for past economic loss is appropriate.

There is no real issue that the plaintiff has been totally incapacitated by his injuries since 30 June 2013 and that this incapacity is permanent. In my view, it is reasonable to calculate future earnings at a rate of approximately $1,180 net per week, which represents average gross annual earnings of approximately $69,500. The latter figure is based on the estimation provided in the above paragraph. Applying the relevant multiplier to age 67, and allowing a 30 per cent reduction for vicissitudes, I allow a sum of $225,000.

Attendant care

The plaintiff claims past and future gratuitous attendant care provided predominantly by his wife and, to a lesser extent, his mother-in-law. The parties agreed that $30 per hour was an appropriate amount for attendant care services.

The evidence in this case demonstrates that the plaintiff had a reasonable need for the services of the kind provided by Vesna Bucic in what I will refer to as the ‘intensive periods’, being immediately after the fall and after the three bouts of surgeries.

The plaintiff’s injuries in the post-fall period were significant and serious. I accept Vesna’s evidence that she was assisting him in most activities in that six week period. As Vesna said, she would not have been standing by the plaintiff’s side for each moment, but she was required to be present and to assist him with all manner of activities from walking, getting his coffee, dressing, showering, assisting him to eat, assisting him to walk and helping him during the night. I accept that after the fall and in the subsequent intensive period she spent a significant amount of time providing personal care and assistance to the plaintiff. I consider that his needs were such that Vesna was spending on average 10 hours per day in those intensive periods.

In the non-intensive period up to 1 January 2014, Vesna’s evidence was that she provided daily assistance to the plaintiff in the order of two hours per day. On the balance of probabilities, I accept that she provided care to the plaintiff in those intervening periods, although in the order of approximately one hour per day.

The evidence confirms that the plaintiff’s condition deteriorated and by June 2013 he had no or limited capacity. Vesna’s evidence was that the plaintiff had significant pain and after the surgery in October 2013 needed more personal care and assistance.

Vesna’s evidence was that she helps the plaintiff dress and put on his orthosis. She said that since October 2013, the amount of personal care and assistance is more than in the other periods. I accept that the plaintiff cannot stand for long periods now and this means that he can no longer prepare meals or drinks such as breakfast or coffee. I conclude that Vesna has provided daily personal care and assistance to the plaintiff since the October 2013 surgery. Putting aside the eight weeks that Vesna provided intensive care, I accept that from approximately 1 January 2014 Vesna has provided ongoing daily personal care and assistance to the plaintiff. I accept the plaintiff’s physical needs and psychological needs have deteriorated since the October 2013 surgery and are unlikely to improve. If anything he is likely to continue to deteriorate. I consider the plaintiff’s needs caused by the injuries amount to approximately one hour per day from 1 January 2014 until his death.

I therefore allow a sum of $125,000 for past gratuitous attendant care. Applying the relevant multiplier to age of death, and allowing a 30 per cent reduction for vicissitudes, I allow a sum of $110,000 for future gratuitous care.

Medical and like expenses

The plaintiff claims past and future medical and like expenses for the cost of consulting with his general practitioner, psychologist and psychiatrist. Regrettably, the plaintiff did not have a valid Medicare Notice of Charge.

The evidence was that the plaintiff had presented to his current general practitioner on an irregular basis over some years at a cost of $70 to $80 per consultation. He also consulted with a psychologist on five occasions at a rate of $170 per hour, totalling $850. Finally, the plaintiff received psychiatric treatment from 10 December 2014 to 14 September 2015.[357]
[357]Exhibit P12, report of 12 March 2015, 2.

I accept that the plaintiff is entitled to the costs of his past medical treatment. However, I note that the evidence as to the plaintiff’s past medical expenses was scant. I allow $5,500 for the cost of the plaintiff’s past appointments with his general practitioner. I also allow $1,650 for the cost of the plaintiff consulting with his psychiatrist. And I allow $850 for the plaintiff’s five appointments with his psychologist. I therefore allow a total of $8,000 for the plaintiff’s past medical expenses.

The plaintiff is entitled to the costs of future medical treatment. The evidence about the plaintiff’s future medical costs was also scant. Dr Sheriff’s evidence was that the plaintiff will need to consult with his general practitioner every four to six weeks, at a cost of $70 to $80 per consultation, on an ongoing basis. This evidence was not challenged. Additionally, the plaintiff will need to seek psychological treatment on a fortnightly basis for twelve months and on a monthly basis thereafter, at a rate of $170 per hour. Applying the relevant multiplier, and allowing a 30 per cent reduction for vicissitudes, I allow a total of $25,000 for future medical expenses.

Summary as to damages

In summary, I allow damages as follows:

General damages: $300,000

Economic loss:  $475,000
Attendant care:  $235,000
Medical expenses:  $33,000
TOTAL:  $1,043,000

Conclusion

The critical issue in this case was to what extent the plaintiff’s fall caused or materially contributed to his back and neck conditions. Liability was also hotly contested but it was not as complex as causation.

It was not disputed that the plaintiff had a pre-existing degenerative back condition that was symptomatic before the fall. It is probable he also had a pre-existing degenerative neck condition that was not yet symptomatic. There can be no doubt he has had a catastrophic fall. The plaintiff has seen several doctors in the 12 years since for a range of serious medical issues and has had three operations on his lumbar spine. He has developed foot drop. He also suffers from mental health issues and a level of memory loss and confusion.

In all of this time, to his credit, the plaintiff has tried to return to work. His stoicism is evident from the fact that, by June 2008, he was working to some extent. The totality of the evidence is that the plaintiff went from having a serious back condition, for which he received treatment over 12 months, to resuming full-time work six weeks before the fall. Then, after the fall, he was a ‘broken man’. The plaintiff has battled on despite crippling back and neck pain. This is a man who does not complain or seek treatment until absolutely necessary. We know he is scared of further surgery. Bearing all of this in mind, as well as his family’s evidence and the evidence of Mr Turner and Dr Kennedy, the probability that the fall caused or materially contributed to his back and neck conditions is reasonably high. There can be no medical or scientific certainty on these points. However, medical or scientific certainty is not the test for causation, which turns on all the circumstances of the case.

I consider the defendant’s negligence caused or materially contributed to the plaintiff’s back and neck and, in turn, psychiatric and cognitive injuries. That is so even though the fall cannot be shown to be a necessary condition of those injuries. Put another way, even though there are other possible explanations for the plaintiff’s back and neck conditions, I accept that on the balance of probabilities they were caused or materially contributed to by the fall.

I will hear the parties on costs and the appropriate form of order.

[2019] VSC 330

20 May 2019