Burnett v Manhattan Homes Pty Ltd

[2023] NSWSC 1431

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Burnett v Manhattan Homes Pty Ltd [2023] NSWSC 1431

Hearing dates:

26 - 29 June, 9 August, 29 September and 27 October 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

1   Judgment for Mr Burnett against Manhattan Homes Pty Ltd.

2   The parties are directed to confer about the final calculations, the terms of the final orders including as to costs and to file proposed orders within 14 days. In the event of any remaining dispute, they should also approach within 14 days and file and serve an outline of submissions addressing that dispute.

Catchwords:

NEGLIGENCE — duty of care — reasonable foreseeability of harm — construction site — plaintiff fell three metres from first story to ground below —statutory notification of incident under Work Health and Safety Act 2011 (NSW), ss 19, 35, 38 — whether notification was an admission under Evidence Act 1995 (NSW), s 82 — whether defect in void protection known — whether plaintiff’s use of uncompleted stairs reasonably foreseeable — whether risk of fall and resulting harm reasonably foreseeable — breach of duty established

NEGLIGENCE — liability — occupier and subcontractor — duty to exercise reasonable care in relation to safety of building site and to persons coming onto site to avoid foreseeable physical injury — causation — whether injury the result of unauthorised acts of contractor — occupier liable

NEGLIGENCE — liability — employer and employee — plaintiff sole director and employee of second defendant — where plaintiff knew of defect in void protection — second defendant’s breach of non-delegable duty of care to plaintiff as employee established — whether plaintiff also negligent or his actions resulted from inadvertence — inadvertence established

NEGLIGENCE — contributory negligence — not established where plaintiff’s actions the result of inadvertence

CIVIL PROCEDURE — cross-claims — contribution or indemnity between defendants — Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c) — Workplace Injury Management and Workers Compensation Act 1987 (NSW), s 151Z

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3, 5B, 5C, 5D, 5E, 5R, 5S, 1, 13, 15, 16, Div 8

Evidence Act 1995 (NSW), ss 69, 81, 82, 87, 136

Law Reform (Miscellaneous Provisions)Act1946 (NSW), s 5

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Work Health and Safety Act 2011 (NSW), ss 19, 35, 38, 39

Workers Compensation Act 1987 (NSW), s 151Z

Workplace Injury Management and Workers Compensation Act1998 (NSW), s 4

Cases Cited:

Amante v R [2020] NSWCCA 34

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28

Blacktown City Council v Hocking [2008] NSWCA 144

Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13

Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343

Commonwealth of Australia v Helicopter Resources Pty Ltd (2020) 270 CLR 523; [2020] HCA 16

Donald v McKeown [2004] NSWCA 285

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Fox v Wood (1981) 148 CLR 438; [1981] HCA 41

Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Holland v Jones (1917) 23 CLR 149; [1917] HCA 26

Husher v Husher (1999) 197 CLR 138; [1999] HCA 47

Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60

Mead v Kerney [2012] NSWCA 215

Miller v Galderisi [2009] NSWCA 353

Nominal Defendant v Livaja [2011] NSWCA 121

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403

Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460

Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44

Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492

Rabay & Anor v Bristow [2005] NSWCA 199

RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42

South Western Sydney Local Health District v Sorbello [2017] NSWCA 201

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306

Stevens v Broadribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1

Sungravure Ply Ltd v Meani (1964) 110 CLR 24; [1964] HCA 16

The Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6

TheNominal Defendant v Lane [2004] NSWCA 405

The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1

Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72

Verryt v Schoupp [2015] NSWCA 128

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19

Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:

Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002, Butterworths)

Safe Work Australia, Construction work: Code of Practice, (May 2018)

Category:

Principal judgment

Parties:

Gary Burnett (Plaintiff)
Manhattan Homes Pty Ltd (First Defendant)
The Griswold’s Outdoor Xmas Pty Ltd (Second Defendant)

Representation:

Counsel:
R Sheldon SC and E Welsh (Plaintiff)
J Sleight (First Defendant)
I Todd (Second Defendant)

Solicitors:
Brydens Lawyers (Plaintiff)
McMahons Lawyers (First Defendant)
Turks Legal (Second Defendant)

File Number(s):

2020/207227

table of contents

Conclusion

Issues

Facts

Not in issue

In issue

Other issues

Not in issue

In issue

Was the statutory notification Manhattan gave an admission?

Manhattan’s notification fell within the statutory definition

Manhattan’s report involved admissions

The credibility and reliability of Mr Burnett’s evidence – the cause of the accident and the extent and consequences of the injuries he suffered

The Inspector’s evidence

Mr Burnett’s evidence was credible and reliable

Did Mr Burnett have any memory of the fall?

The parties’ cases

Mr Burnett did have a recollection of his fall

Mr Burnett’s evidence about how he came to fall must thus be accepted

Manhattan’s claimed negligence

Applicable principles

The parties’ cases on duty

The duty

Did Manhattan breach its duty?

What Manhattan’s duty generally required

The ladder

Was there a defect in the void protection?

Ought the defect in the void protection to have been known by Manhattan on 27 February 2019?

Was the risk of a fall from the first floor to the ground floor in the stair void reasonably foreseeable?

Was it foreseeable that Mr Burnett would attempt to use the stairs as he intended when he fell?

Breach is established

There was a failure to exercise reasonable care

What precautions would a reasonable person have taken?

Negligence is established

Griswold’s claimed negligence

Griswold’s negligence is also established

Causation

Was Mr Burnett contributorily negligent or only inadvertent?

Contributory negligence is not established

Apportionment of damages for negligence

Manhattan’s contributions to the workers compensation payments made by Griswold’s and/or indemnity

Damages

The injuries Mr Burnett suffered as the result of his fall

Non-economic loss

The parties’ cases

The evidence

The lay evidence

The expert evidence

Non-economic loss must be assessed to be 45%

Past economic loss

The parties’ cases

The evidence

Mr Burnett’s past economic loss cannot be calculated in the way for which he contended

Future economic loss

Applicable principles

The parties’ cases

The evidence

Mr Burnett has no future earning capacity

Mr Burnett does not have the capacity to do the work he formerly did for Manhattan and Griswold’s

Mr Burnett’s capacity for other work

Future economic loss is established

Past out-of-pocket expenses

Future out-of-pocket expenses

The parties’ cases

This claim is established

Past care

The principles

The evidence

The claim is established

Future care

The parties’ cases

There must be damages for future care

Judgment for Mr Burnett

Costs

Orders

JUDGMENT

1. On 27 February 2019, Mr Burnett was seriously injured while working at a construction site where Manhattan Homes Pty Ltd was building a double storied family home, when he fell from the upper floor to the ground floor below. He has not worked again. He now seeks damages for his injuries and their ongoing consequences, which he claims were the result of the negligence of both Manhattan and his employer, The Griswold’s Outdoor Xmas Pty Ltd, Manhattan then having had control of the worksite and the trades people and contractors engaged to work there.

2. Mr Burnett’s claims are defended. That he was contributorily negligent is also pleaded, which he denies. Manhattan and Griswold’s have also both brought cross-claims against each other, which they also both defend.

3. Mr Johnson was Manhattan’s working director and Mr Burnett was both the sole director of Griswold’s and its employee. Manhattan claims that as Mr Burnett’s employer, Griswold’s owed him a non-delegable duty of care, which it breached. It thus also seeks indemnity from Griswold’s for any damages awarded against it under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act1946 (NSW) or in the alternative, a contribution to any judgment entered against it.

4. For its part, Griswold’s accepts the nature of the duty it owed Mr Burnett, but seeks indemnity and/or contribution under the Law Reform (Miscellaneous Provisions) Act from Manhattan, which it claims breached the duty it owed Mr Burnett and was primarily responsible for the injuries which he suffered as a result. It also advances claims against Manhattan in relation to workers compensation payments it has made to Mr Burnett: s 151Z of the Workers Compensation Act 1987 (NSW).

Conclusion

5. For the reasons which follow, I am satisfied that judgment must be entered for Mr Burnett, his claimed contributory negligence not having been established on the evidence.

6. I am also satisfied, however, that Mr Burnett has not established all of the damages which he claimed. The parties also agreed that once these reasons were given, further calculations will have to be undertaken, before final orders can be made.

Issues

7. While the parties repeatedly tried to reduce what was in issue between them, over the course of the hearing, the issues developed.

8. Even after the second adjourned hearing, the parties continued their discussions about matters that they were then confident they could resolve. That did not eventuate, with the result a request that the matter be relisted for further directions. That finally resulted in service of further affidavits and after further directions, a limited agreement in relation to past expenses communicated to the Court only in November 2023.

Facts

Not in issue

9. Before Mr Burnett gave his evidence various facts were agreed. Namely:

“1.   The defendant, Manhattan Homes Pty Limited was the principal contractor of a residential construction site at 7-9 Shorebird Parade, Greenhills Beach, NSW.

2.   Manhattan had subcontracted the various work to The Griswold’s Outdoor Xmas Pty Limited, the cross-defendant, of which the plaintiff was a sole director.

3.   On the site, Manhattan as principal contractor was constructing a two storey timber framed dwelling.

4.   During construction, the staircase void on the first floor was initially protected by floor sheeting supported by steel bars or joists (the void protection).

5.   The void protection was installed by Safeworx Group Pty Limited.

6.   The void protection had been installed when the frames of the dwelling had been erected prior to the accident.

7.   On 27 February 2019, the plaintiff sustained injuries when, attempting to use the stairs, he fell.”

10. During his cross-examination, Mr Burnett also made a number of concessions contrary to his interests, both about the circumstances in which he was injured and what surveillance footage which he was shown established. They shed light on his current physical capacity and the domestic assistance he received from his wife. His concessions also reduced what was in issue, establishing that:

1. on the day of his accident, when he used the stairs before his fall from the top floor, Mr Burnett saw that a steel bar supporting boards which covered the void near those stairs had been removed, with the result that he knew that boards near the stairs were no longer supported;

2. while this posed a safety risk, he did not raise this with Manhattan or anyone else;

3. he used the unfinished stairs that day, rather than a ladder which had previously been used to access the first floor;

4. he could have used a bucket and rope to lower tiles he had removed from a bathroom to the ground floor, rather than using the stairs;

5. despite the very serious injuries he suffered when he fell from the first floor, his health continued to improve after the accident to the point, for example, where he was able to use a whipper snipper in the garden, carry shopping and climb a ladder;

6. the domestic assistance his second wife, Ms Sukwong, provides him would be provided even if he had not been injured in the fall.

In issue

11. Facts in dispute were identified at the outset to be:

“8.   Whether during construction whilst the void protection was in place access to the first floor was a ladder.

9.   Whether the top of the ladder penetrated the first floor through an access hole that was covered by a trap door.

10.   When and was the void protection rendered unsafe and by whom?

11.   Was the alternate means of access provided by the ladder in place on the 27 February 2019?”

12. Given the evidence of Mr Burnett and Inspector Holder, the SafeWork NSW inspector who investigated his fall, and the photographic evidence led, there can be no question that at the time that Mr Burnett fell, while not in use, the top of the ladder still penetrated the first floor void protection through an access hole that was covered by a trap door. The inspector’s evidence was that when he inspected the site some days after the incident the trap door was screwed shut.

Other issues

13. At the commencement of the hearing, the parties also identified other matters which were and were not in issue. Further issues, including as to the credibility and reliability of Mr Burnett’s evidence, emerged during the hearing.

Not in issue

14. Initially, an evidentiary statement made by Mr Johnson was included in the court book and referred to in Manhattan’s written opening submissions. But after evidence was given by Inspector Holder, who had visited the building site in response to Manhattan’s notification of the incident to SafeWork, Manhattan announced that Mr Johnson would not be called and his statement was withdrawn.

15. Manhattan did not call any other lay witnesses who could have given evidence about what lay in issue between the parties. As a result, there was no issue between them that Jones v Dunkel inferences would be drawn against Manhattan. That was because it gave no explanation for why those who could have given evidence relevant to its case, who it might be reasonably expected it would call, were not called: RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75]-[96].

16. The result is that while the absence of such witnesses may not fill in gaps in the evidence, Manhattan’s forensic decision does permit the inference to be drawn that their evidence would not have helped its case. This inference may be used in deciding first, whether to accept any particular evidence given, either for or against it, which relates to a matter about which such a person could have spoken, and secondly, whether or not to draw inferences of fact which are open in relation to matters about which that person could have spoken: RHG Mortgage Limited at [79].

In issue

17. Other matters in issue between the parties were identified at the outset to be:

“12.   Was the risk of the plaintiff falling from the first floor to the ground floor in the stair void reasonably foreseeable to an entity in the position of the Defendant?

…

13.   Did Manhattan know or ought it to have known that there was a risk of harm to the plaintiff by the void protection being not reasonably safe (the risk of harm)? In other words, in all the circumstances, was the risk of harm foreseeable to Manhattan?

14.   In all the circumstances, was it foreseeable that the plaintiff would attempt to use the incompletely constructed stairs?

15.   Was there a patent defect to the void protection on the 27 February 2019 such that it was or ought to have been known to:

(a)   the plaintiff;

(b)   Manhattan;

(c)   Griswold.

16.   If yes, in all the circumstances, what precautions would a reasonable person in the position of

(a)   the plaintiff;

(b)   Manhattan;

(c)   Griswold

have taken against the risk of harm?

17.   The respective culpability and causal potency of Manhattan’s conduct and that of the plaintiff so as to effect a just and equitable reduction of damages, if any, claimed by the plaintiff.

18.   The respective culpability and causal potency of Manhattan’s conduct and that of Griswold so as to effect a just and equitable apportionment of liability, if any, between them as joint tortfeasors.”

18. It emerged at the hearing that it was Manhattan’s administration officer, Ms Cameron, who had given its statutory notification of the incident to SafeWork. Whether what was notified constituted an admission under the Evidence Act1995 (NSW) was also finally in issue.

19. It is convenient to begin with that issue, Manhattan’s statutory notification supporting as it does Mr Burnett’s evidence about how he came to fall from the first floor to the ground below.

Was the statutory notification Manhattan gave an admission?

20. Under the Evidence Act, the hearsay and opinion rules do not apply to admissions: s 81. An “admission” is there defined in the Dictionary to mean “a previous representation that is—

(a)   made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b)   adverse to the person’s interest in the outcome of the proceeding.”

Manhattan’s notification fell within the statutory definition

21. The Work Health and Safety Act 2011 (NSW) imposes duties of care in respect of work health and safety on entities such as Manhattan: s 19. An incident involving serious injury to a person is defined to be a “notifiable incident”: s 35. A further duty is imposed on those who conduct a business or undertaking to ensure that notifiable incidents are immediately notified to SafeWork, by the fastest possible means and also to keep records of such incidents: s 38.

22. Manhattan’s statutory notification was given by telephone by Ms Cameron and was recorded in SafeWork records which are in evidence. Manhattan did not tender the records it had itself kept of the incident. Nor did it lead any evidence to suggest that the notification Ms Cameron gave was inaccurate, or that she had no authority to make it.

23. The person who has management or control of the workplace at which an incident happens also has a duty to ensure, so far as is reasonably practicable, that the site of the incident is not disturbed until an inspector arrives or any earlier time that an inspector directs: s 39. SafeWork records show that after Manhattan notified the incident, it directed that the site not be disturbed, but the evidence establishes that this was not complied with.

24. Manhattan called no evidence to explain this or to challenge the accuracy of the records SafeWork kept.

25. There is no suggestion that Griswold’s gave any notification to SafeWork. That accords with Mr Burnett having been taken to hospital by ambulance soon after his fall, having been assisted by another worker on site who came to his aid. He had suffered multiple injuries, including to his brain and spine. Hospital records reflect that as a result, he suffered amnesia for some 21 days, underwent surgery to his spine and a long period of rehabilitation and was not discharged until May 2019.

26. The SafeWork Incident Notification Report about Mr Burnett’s fall on 27 February 2019 records amongst other things that:

1. Ms Cameron that day reported his fall by phone and Inspector Holder became the allocated officer;

2. the hazard recorded was working at heights and the description of the incident, with my emphasis, was:

“Carpenter / maintenance contractor onsite – (Grizwold’s [sic] maintenance service)

Worker was completing clean up of site, crossing stair void via plank put in place

Plank has broken when crossing & worker has fallen around 2.7m to the ground level

Landing on head & back

Transported to hospital via ambulance”;

3. the site had been partially disturbed in order to assist Mr Burnett, but it had been locked at the time of the notification and was to be preserved;

4. Mr Burnett had suffered a cut to the back of his head, first aid having been administered and that he had been admitted to St George Hospital. It should be noted that this advice did not reflect the seriousness of his injuries; and

5. both Mr Johnson and Ms Cameron were Manhattan’s primary contacts.

27. At the hearing there was no objection to the tender of the records SafeWork maintained about the incident, relevant as they clearly were to what was in issue. In final submissions it was accepted that they were business records admissible under s 69 of the Evidence Act. That Manhattan’s report to SafeWork had involved any admission, as was Mr Burnett’s case, was however, still in issue.

Manhattan’s report involved admissions

28. Manhattan’s report of the notifiable incident, which later became the subject of the claims advanced in these proceedings, was communicated by the representations it had Ms Cameron make. Those representations fall within the statutory definition of an “admission”, given that Manhattan later became a party to these proceedings and what it had notified was adverse to its interests in their outcome.

29. Section 82 does not prevent the application of the hearsay rule to evidence of an admission, in certain circumstances. But the report Manhattan made must be taken to be an admission if, when Ms Cameron made the representations which SafeWork recorded, she either had authority to make statements on Manhattan’s behalf to SafeWork about the incident it was notifying, or being its employee, her representations related to a matter within the scope of her employment or authority: s 87(1) discussed in Commonwealth of Australia v Helicopter Resources Pty Ltd (2020) 270 CLR 523 at 531-534; [2020] HCA 16.

30. The proper inference to be drawn from all the evidence and Manhattan’s failure to lead any evidence to dispute this, is that Ms Cameron did have the necessary authority to give Manhattan’s statutory report by telephone as she did and that it was within the scope of her employment to do so. Companies like Manhattan can only act through their officers, employees and agents. It elected to have Ms Cameron make its statutory report and advise SafeWork that both she and Mr Johnson were its primary contacts.

31. Manhattan led no evidence to dispute the accuracy of what SafeWork recorded.

32. What was reported accords with Mr Burnett’s evidence that Mr Johnson also had relevant information about the incident, having been on site with the owner earlier on the day Mr Burnett fell. So did the site supervisor, Mr Blencowe, who, on Mr Burnett’s evidence, had been on site on the preceding Friday. Also on site on the day of Mr Burnett’s fall was the unidentified worker who came to his aid before the ambulance attended. None of these witnesses were called by Manhattan and their absence was unexplained.

33. The proper inferences thus include that:

1. Manhattan’s report to SafeWork was made by Ms Cameron, a person with the requisite authority and in the course of her employment;

2. its report was accurate, having been made as the result of steps it took after learning of Mr Burnett’s fall to ascertain what had happened, so that it could meet its statutory obligations; and

3. Manhattan’s enquiries satisfied it about what it reported, namely, that Mr Burnett fell to the ground below when he crossed the stair void via a plank then in place.

34. It follows that Manhattan is bound by its admissions, which are also supported by other evidence, including some of its own records.

35. It is convenient to note that even if not accepted as involving any admission, the contemporaneous SafeWork records accord with the evidence which Mr Burnett later gave by his statement and oral evidence at trial, about how he came to be injured when he stepped onto an unsupported plank near the stairs. They were also supported by photographic evidence.

36. This is all relevant to the conclusions which I have reached about the credibility and reliability of Mr Burnett’s evidence.

The credibility and reliability of Mr Burnett’s evidence – the cause of the accident and the extent and consequences of the injuries he suffered

37. The inspector’s evidence also supports the conclusions which I have reached about Mr Burnett’s evidence and so it is convenient to now deal with it.

The Inspector’s evidence

38. On 1 March 2019, Inspector Holder attended the site, where he made notebook entries and took photographs which were also in evidence. His notification report records that he met with Mr Johnson that day, but his evidence was that Mr Johnson was not present when he first arrived at the site and that he carried out his inspection alone, having found the site and building unlocked. He then found that he could not access the first floor via the ladder, so he also used the unfinished stairs.

39. The inspector was later advised that a partial handrail shown in the photograph which he took that day had been fitted after the accident, in order to make the area safe.

40. Inspector Holder spoke by phone to Mr Burnett in hospital on 8 March, Mr Burnett then advising that he had a fractured back and neck. The inspector visited him there on 14 March.

41. What Mr Burnett then told the inspector included that he had some recollection of the fall; that on that day he had used the stairs which had no handrail; that he could not then exactly recall how he fell, but that the work he had to perform included carrying some broken tiles down the stairs.

42. The inspector’s report included:

“Summary of events:

Carpenter/maintenance contractor onsite - (Grizwald [sic] maintenance service)

Sub contractor Mr gary [sic] Burnett was undertaking minor maintenance work in the first floor ensuite, completing clean up of area the IP has used the unprotected (no handrails) [sic] internal staircase, crossing stair void via plank put in place, it appears the IP has slipped off the stairs and flallen [sic] 3.mt to the ground floor slab below landing on head & back

Transported to St George hospital via ambulance

Nature/ extent of injury:

cut to back of head 18 staples

Back injuries to T 3 - T 7, TIO - L2

laceration to right forearm

broken ribs

Collapsed lung.

Briefly describe systems of work present prior to incident:

internal stairs are installed without a handrail system a stair void cover was fitted but had been tampered with to fit the stairs. The IP was carrying out maintene=ance [sic] work in the first floor ensuite and while carrying some broken tiles down the stairs has fallen to the concrete below.”

43. It should be noted that the inspector’s conclusions were partially incorrect. I am satisfied that consistent with Manhattan’s statutory notification, other evidence of which the inspector was not aware established that Mr Burnett did not slip off the stairs.

44. The inspector, however, concluded that the conduct of both Mr Burnett and Manhattan had contributed to his fall, there then being no handrail installed and Mr Burnett having used the unfinished stairs while there was a risk of falling, which would have been eliminated by the installation of a handrail.

45. The inspector’s evidence that he was unable to access the first floor using the ladder and trapdoor, despite using the considerable force he described in his evidence, to try to open it, must be accepted. He explained that he had first sought to use the ladder because he did not consider that the unfinished staircase gave safe access to the top floor, despite the handrail which had by then been installed. When it was not possible to use the ladder, he too accessed the top floor using the unfinished staircase.

46. The note the inspector then made indicates that he found that the trapdoor had been screwed shut, although he could not recall having seen that when he gave his evidence. In his cross-examination, Mr Burnett accepted that such a screw could have been removed, but it is apparent that Manhattan had not done so before the inspector attended, despite the work undertaken on the site which was not to be disturbed.

47. The photo the inspector took shows that some of the boards which had covered the first-floor void and which can be seen in a photo taken in January to which Mr Burnett was taken, which Mr Burnett accepted showed the state of the site before his accident, apart from the missing support, were no longer there at the time of his inspection. In the inspector’s photo, some supports are seen to be lying on top of the remaining boards. That is consistent with Mr Burnett’s evidence.

48. The inspector’s photo also shows that holes in the gyprock walls had been repaired following the removal of supporting beams, which had penetrated the wall. That is not shown in the January photo to which Mr Burnett was taken. A later 8 February photo also depicts those holes.

49. I am satisfied that the proper inference to be drawn is that these holes were repaired after 8 February. The inspector explained how such repairs were made and that they would have taken 24 to 48 hours to dry. It follows that the holes could also have been repaired after Mr Burnett’s fall.

Mr Burnett’s evidence was credible and reliable

50. Both the credibility and reliability of Mr Burnett’s evidence were challenged. Manhattan’s case was that no orders could be made against it, as Mr Burnett had not established the essential facts on which his case turned, given that he had no real memory of his fall. The result, Manhattan contended, was that he could not establish the cause and manner of his fall, nor, consequently, could he establish its breach of duty or negligence, with the result that Mr Burnett’s case had to fail.

51. Credibility and reliability were also raised in the context of the ongoing consequences of the undisputed injuries which Mr Burnett claims he suffered as the result of his fall. While those injuries were established by medical records, the damage he suffered as a result was disputed.

52. Manhattan’s case was that Mr Burnett had not only exaggerated his injuries in the histories he had given those who later treated him, but also to experts to whom he eventually gave accounts of what had happened to him, as well as in his evidence.

53. This was disputed by Mr Burnett and Griswold’s. They both contended that Mr Burnett’s evidence, supported as it was not only by the inspector’s evidence but also by various contemporaneous documents, had to be accepted. That conclusion is also supported by the various concessions he made in cross-examination, contrary to his own interests.

54. I am well satisfied that Mr Burnett was both a credible and generally reliable witness, supported as his evidence was by other evidence.

55. In cross-examination, Mr Burnett volunteered concessions against his interest, not only about his knowledge that the board which fell under him was unsupported, but also about his ongoing improvement in what has undoubtedly been a very fortunate recovery from his very serious injuries. Such concessions have also helped to persuade me that overall his evidence must be accepted, including in respect of the damages he pursues.

56. I will deal with the latter evidence in the context of what lies in issue in relation to damages.

Did Mr Burnett have any memory of the fall?

57. I am satisfied that Manhattan’s case that Mr Burnett does not in truth have a memory of his fall cannot be accepted. Rather, his evidence that he does have some memory of what happened to him is consistent with what he told the inspector while he was in hospital and with his documented recovery from a period of post-injury amnesia, and must therefore be accepted.

58. On Mr Burnett’s evidence, he fell when he stepped onto the unsupported board near the staircase, while he was carrying a third load of tiles which he had removed from the bathroom, as Mr Johnson had instructed earlier that day. He had earlier left two other loads of tiles near the top of the stairs, intending then to carry them all down those stairs.

59. Mr Burnett’s pleaded claim was that he fell after the platform he stepped on moved. That accorded not only with his evidence, but also with Manhattan’s notification to SafeWork that a plank had broken when he crossed it and he then fell to the ground level. He was cross-examined, however, on the basis that he could not recall his fall, which he did not accept.

The parties’ cases

60. To advance its case, Manhattan relied on authorities which discussed the principles applicable to the resolution of issues about a witness’s ability to recall past events, referred to in The Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6 at [165]. They included:

1. in accident cases, it is a truism that with every day that passes memory becomes fainter and imagination more active. For that reason a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the accident. Thus, contemporary documents are always of the utmost importance, and it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, with motive being one aspect of probability: Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431;

2. there is a need to take into account the unreliability of human memory, including in the case of eyewitnesses. Two common, related errors are to suppose that the stronger and more vivid a feeling or experience of recollection, the more likely the recollection is to be accurate and the more confident another person is in their recollection, the more likely their recollection is to be accurate. This is because memories are fluid, malleable and constantly rewritten whenever retrieved and especially unreliable when recalling past beliefs, which are revised to make them more consistent with present beliefs. Thus, account must be taken of the stake which parties have in civil litigation, in which the processes themselves subject their memories to powerful biases. They include the effect of the lapse of time; memories being refreshed by reference to other documents, which may include argumentative material not available at the time of the events; and the iterations which statements go through before they are finalised: Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]-[20]. This may “cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events”: Gestmin at [20];

3. thus “the best approach … in the trial of a commercial case is … to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.” The value of oral testimony lies largely “in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”: Gestmin at [22];

4. “All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience”: Watson v Foxman (1995) 49 NSWLR 315 at 319;

5. in a circumstantial case it is necessary for the Court to consider all of the evidence and to draw conclusions from it viewed as a whole: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23], citing Kirby J in Jones v The Queen (1997) 191 CLR 439 at 466-467; [1997] HCA 56; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at [89]-[95];

6. the proper approach is not to examine each piece of circumstantial evidence in isolation to demonstrate particular weaknesses, but rather to view all of the evidence as a whole: Plomp v The Queen (1963) 110 CLR 234 at 242; [1963] HCA 44; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46]-[48]; The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [128];

7. contemporaneous statements and documents, particularly when relatively spontaneous, are likely to be more accurate than a later recollection of events, made at a time when false memories can intrude; and

8. the value of comparison of evidence with known facts has greater merit than a consideration of witnesses’ demeanour and conclusions should as far as possible, rest “on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy at [31].

61. Analysis of Mr Burnett’s evidence, Manhattan contended, necessarily led to the conclusion that he had no reliable memory of his fall and accordingly, his evidence could not be accepted. It also cautioned about the reliability of the photographic evidence established, despite that evidence supporting Mr Burnett’s evidence.

62. That was disputed by both Mr Burnett and Griswold’s. They relied on contemporaneous documents, including Manhattan’s report to SafeWork, various business records and photographs which established the state of the void cover and stairs, both before and after Mr Burnett’s fall, as well as his concessions, to support their case that Mr Burnett’s evidence would be accepted as helping to establish his case.

Mr Burnett did have a recollection of his fall

63. Approaching what is in issue about the state of Mr Burnett’s memory in light of the principles earlier discussed, I am satisfied that it must be accepted that Mr Burnett did have a recollection of his fall when he spoke to the inspector in hospital, when he gave his later accounts to others and also when giving his evidence.

64. I am also satisfied that Mr Burnett fell as he described in his evidence, when he stepped onto a board which he knew was unsupported, as he approached the stairs, carrying his third load of tiles.

65. While orders under s 136 of the Evidence Act were made by consent as to the truth of the histories Mr Burnett gave to others about how he came to be injured when he fell, those accounts were consistent with his evidence about the cause of his fall and also accorded with Manhattan’s statutory notification and what photos established.

66. In his first statement in December 2021, Mr Burnett said that his recollection included that before the stairs were installed, he had been on site when the stair void was completely covered with timber supported by metal bracing, and that a ladder which was covered by a trap door was used for access. That accorded with Stairman’s earlier advice to Manhattan.

67. Further, he stated that when he was later on site, a section of the temporary floor bracing was removed to install the stairs; that there were then boards supported by metal beams covering the void, except for where the stairs ascended; and that there was no handrail around the void. That also accorded with Stairman’s advice and the photos.

68. Mr Burnett also said that:

“13.    At the time of my accident a staircase had been installed to access the first floor but there was no balustrade either on the staircase or around the first floor opening for the staircase. The void at the top of the staircase was in part covered with flooring sheets at the time my accident occurred.

14.   My accident occurred when I was carrying some tiles from the upstairs bathroom intending to take them downstairs. As I stepped onto the temporary flooring over the void it collapsed and I fell through to the ground floor.

…

18.   I was intending to step onto the boards and then onto the first or second step of the staircase when my accident happened. My last memory is of walking from the bathroom towards the stairwell. There were temporary flooring boards covering the void up to the edge of the stairwell and I remember suddenly feeling that I was falling. My next memory is of Mick from My Kitchens talking to me and I was lying on the floor asking him to move my legs. I couldn’t move my hands or feet and I couldn’t feel anything. I was next to the wall on the floor downstairs. There was stuff on me. I do not know what it was. I was too distressed to identify it. I was in excruciating pain.”

69. The account which Mr Burnett gave in his first statement, namely that the board moved, accords with what he had claimed in his pleadings. It follows that contrary to Manhattan’s case, that the fall was caused by a plank falling was not first claimed by Mr Burnett during his cross-examination.

70. In cross-examination, Mr Burnett insisted he had a memory of these matters. When asked about paragraph 13, his evidence included:

“Q.   That's a true statement of what the first floor looked like after the installation of the staircase?

A.   Yes.

Q.   But the stairs at that stage were not complete in that they lacked a handrail, didn't they?

A.   Yes

Q.   As I understand it there was a space in the void covering where the final steps came up to meet the first floor, is that right?

A.   There was a bit of board cut out, yes.

Q.   There was a space?

A.   Yes, cut out.

Q.   And the steps then ascended up to the first floor?

A.   Correct.

Q.   In fact, the staircase was in a sort of L-shape because the long ascent of the staircase was along a wall, wasn't it?

A.   Yes.

Q.   Then as it came to the first floor, it took a 90 degree turn to the left?

A.    Correct.

Q.   And it was that last section the void cover had been removed, yes?

A.   Correct”.

71. Mr Burnett was then shown the 25 January photo which he agreed depicted the state of the stairs when he fell. It showed that a portion of the void cover had been removed and he volunteered that the steel underneath had been removed, which was not shown on that photo. That, however, was established by a later photo taken in February, to which he was not taken.

72. Mr Burnett was also repeatedly cross-examined about what he had said at paragraph 18 of his first statement. His evidence included that:

“Q.   On the day of your accident, you'd made two or three trips up the stairs?

A   No.

Q.   No?

A.   You've got that wrong.

Q.   Sorry. Maybe you can just help me because I read this in your statement and maybe I've leapt to some conclusion. ‘I'd made two or three trips to the stairs before my accident occurred’.

A.   Yes. I didn't go up and down them as you asked.

Q.   You must've gone up them, though, mustn't you?

A.   Yes.

Q.   When you went up them, was that when you noticed that the steel beam wasn't there?

A.   No.

Q.   When did you notice that the steel beam wasn't there?

A.   Not sure. I can see it in this picture dated the 27th.

Q.   And you were very keen to tell this Court that that picture is the same as it was on the day of your accident but no steel beam, yes?

A.   Mm.

Q.   Then you told this Court that you didn't revisit the scene of the accident, you just went back to the site?

A.   Yes.

Q.   To be able to tell this Court that there was no steel beam present on the day of the accident, you must've noted its absence before your fall, mustn't you?

A.   Yes.”

73. Later he said:

“Q.   Just so I'm fair, you must've seen before your accident that the steel beam was not there?

A.   Yes.”

74. Later his evidence was:

“Q.   When you went up the steps or the staircase on the day of your accident, you knew the job you were going to carry out was to remove or take down waste tiles from the bathroom to the ground floor, didn't you?

A.   There was a rectification to the bathroom, yes.

Q.   If we break that down into jobs, one of the jobs you had to do was take tiles that weren't needed downstairs?

A.   Yes.

Q.   You chose to use the staircase?

A.   I loaded - I put piles of broken tiles at the top of the stairs.

Q.   Initially, the first thing you did that morning is you went onsite and you chose to get to the first floor by using the staircase, didn't you?

A.   I did.

Q.   If the ladder had been in place, you'd have an option, wouldn't you, to use the ladder?

A.   Yes.

Q.   You knew that the ladder was a safe means of access to the first floor, didn't you?

A.   Yes.

Q.   You knew that the staircase was not complete, didn't you?

A.   Yes.

Q.   You knew the staircase had no balustrade?

A.   Yes.

Q.   When you got to the first floor and you got the tiles together, you decided to use the staircase, didn't you?

A.   Correct.

Q.   Yes?

A.   Well I was loading up tiles at the staircase, yes.

Q.   But when you were loading up the tiles, if you look at that photograph, were you putting the tiles on the boards, the void‑covering boards?

A.   No.

Q.   Were you putting the tiles at the head of the stairs?

A.   Yes.

Q.   When you got your third load of tiles, you decided to walk across the void board, didn't you?

A.   Yes.

Q.   As a shortcut to the stairs?

A.   Yes.

Q.   That's a board that you knew the steel support had been removed from, didn't you?

A.   At the time I was doing that I had what I needed to go and get to do the job, so I had other thoughts in my mind.

Q.   Are you agreeing with me that at the time you took that shortcut across the board that covered the void, you knew--

A.   No.

Q.   --that the steel support had been removed?

A.   No.

Q.   When did you find out that the steel support had been removed?

A.   When I fell.

Q.   I beg your pardon?

A.   When I fell.

Q.   You didn't know when you fell that the steel board had been removed, did you?

A.   The reason of the fall was the steel beam had been removed, yes.

Q.   I'm not asking you to give a reason why you fell. I'm asking you what you knew at the time. You've told this Court that that steel support had been removed?

A.   Yes.

Q.   You could've only discovered that before you fell?

A.   While walking up the stairs I would've noticed, yes.

Q.   Yes, while walking up the stairs. So when you decided, you put the first two loads of tiles at the top of the stairs, didn't you?

A.   Yes.

Q.   You avoided walking over the board?

A.   Correct.

Q.   Then on the third occasion you walked over the board, and had you thought about it, you would've known that the steel support had been removed‑‑

A.   Yes.

Q.   --wouldn't you?

A.   Yeah.

Q.   I assume the removal of the steel support would've made the void protection unsafe?

A.   Correct.”

75. All of this evidence was consistent with what the 8 February photo, to which Mr Burnett was not taken, showed and involved concessions made against his interest, namely that he had stepped onto a board which he knew was unsafe, unsupported as it was, that resulting in his fall to the ground below.

76. Attached to Mr Burnett’s January 2023 statement was the later photo given to him by Inspector Holder, which had been taken during his inspection. It established that after his fall, a temporary balustrade was installed around the void and up the stairs. Consistent with Mr Burnett’s evidence, in this photo even more of the void is uncovered than in the photo he was shown in cross-examination.

77. As a result, there was no issue that the balustrade had been installed only after the incident.

78. In his May 2023 statement, Mr Burnett said that earlier on the day he fell he had seen Mr Johnson and the owner walk up the stairs; that he was removing discarded tiles from an upstairs bathroom and Mr Johnson instructed him to do some work required on a niche there; and that Mr Blencowe was not then on site.

79. In cross-examination, Mr Burnett said that he had not referred to Mr Johnson in his earlier statements, because he had not been asked about him. I can see no reason for rejecting that evidence.

80. It was also put to Mr Burnett in cross-examination that Mr Johnson was not on site on the day he fell. He disagreed and insisted that he did have a memory of him being there and could also remember a conversation Mr Johnson then had with the owner. Mr Burnett also disagreed when it was put to him that he had no memory of such a conversation and that it was a recent fabrication. I accept his evidence, unchallenged as it was by evidence which Manhattan could have called.

81. Mr Burnett was also cross-examined about what he told the inspector. Amongst other things he said:

“Q.   You told him that you were using the stairs without a handrail, didn’t you?

A.   Yes.

Q.   You could not recall how you fell, you told him that?

A.   I did not know where I fell through.

Q.   I’m suggesting to you that you told the WorkCover inspector you did not recall how you fell.

A.   Okay.

Q.   Is that true or not, did you tell him that?

A.   Yes.

Q.   You told him that because that was the truth of the matter, didn’t you?

A.   No.

Q.   So you told him that because that wasn’t true?

A.    No.

Q.   You told him you did not know, you could not recall how you fell because that was the truth of the matter, didn’t you?

A.   I do not recall how I fell on the, at, on, at that statement, yes.

Q.   That was just some two and a half weeks after the accident.

A.   Yeah, yeah.

Q.   Wasn’t it?

A.   Yes”.

82. Mr Burnett was further cross-examined:

“Q.   I just suggest to you that when you saw the WorkCover inspector, you didn't tell him that, you didn't mention a collapse of flooring to him?

A.   (No verbal reply)

HER HONOUR

Q.   That's a question.

A.   All right. I was not in a real good state of mind at the time in remembering all the facts after that”.

83. Mr Burnett having a limited recollection when he spoke to the inspector accorded with what his May 2019 hospital discharge papers established. They recorded that in the fall he had suffered a traumatic spinal cord injury; poly-trauma, including the spinal cord injury which resulted in the surgical insertion of screws at two levels in his spine; a traumatic brain injury; multi-level cervical and upper thoracic spine injury; cervical fracture of the C7 laminae requiring immobilisation; chest wall/rib fractures; fracture of the right clavicle; bone contusions; post-traumatic amnesia of 21 days duration and lung collapse.

84. These injuries necessitated multilevel spinal surgery, as well as spinal rehabilitation and respiratory, cardiovascular, bladder, bowel, insomnia, psychological and pain management. His follow up included neuro-psychometric evaluation for brain injury, driving and return to work.

85. Nevertheless, I do accept that Mr Burnett recovered sufficiently to have the memory of his fall he explained in his evidence; according to which he stepped onto an unsupported plank as he was approaching the staircase from the bathroom while carrying a third load of tiles.

86. The evidence which showed that the site had been tampered with after Mr Burnett’s fall, to which I will return, supports this conclusion. As does Manhattan’s failure to lead evidence about this and other matters relevant to what lies in issue between the parties, from witnesses who could have shed light on those issues.

87. In the face of what Mr Burnett volunteered in his evidence, and other contemporaneous evidence, including Manhattan’s report to SafeWork, I am well satisfied that not only did he have the memory of the fall which he claimed, but that his evidence about how he fell has to be accepted.

88. Inspector Holder did not speak again to Mr Burnett after his hospital visit. He concluded from his investigations that he was “carrying out maintenance work in the first floor ensuite and while carrying some broken tiles down the stairs has fallen to the concrete below”.

89. That conclusion did not accord entirely either with Manhattan’s statutory notification or Mr Burnett’s later statements and evidence at trial, which establish that he fell when he stepped onto a board which collapsed under him, despite knowing it was unsupported.

90. Given how the site had been altered before the inspector attended, the conclusions which he reached are understandable. The boards and tiles which fell with Mr Burnett must have been removed when the site was cleaned and the temporary handrail installed.

91. Stairman advised Manhattan that part of the void protection had been removed before the fall, with the result that there were unsupported boards over part of the void, which was not protected by a balustrade. Consistent with Mr Burnett’s concessions and the photographs, that was what permitted him to fall as he did.

92. While there was an issue about the use which could be made of the photographs, it must be accepted that in cases such as this they can be of assistance.

93. Photographs can “be descriptive of what a witness says he or she saw, being a representation of the witness’ knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural”: Blacktown City Council v Hocking [2008] NSWCA 144 at [169]. Further, “care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken”: at [170].

94. The photographs in evidence in this case do not suffer from such difficulties. Not only did they shed light on the state of the stairs and void protection before and after Mr Burnett’s fall, as both he and the inspector explained in their evidence, but they were also consistent with Manhattan’s statutory notification and what its business records establish about the installation and alterations made to the void protection before and after his fall.

95. True it is that the photograph taken by the inspector does not show the site in a state consistent with a board having collapsed when Mr Burnett stepped onto fallen to the ground below the void. But that was not only Mr Burnett’s evidence, but what Manhattan reported to SafeWork and there was no issue that at the time of the fall the site was not in the state which the inspector found.

96. I am satisfied that the board must have fallen to the ground below, along with the tiles Mr Burnett was carrying, even though the photograph does not show any of the material which Mr Burnett remembered being covered by when he regained consciousness on the ground floor. Nor do the photos depict the other tiles he said he had placed near the top of the stairs, but not yet taken down. The inspector also did not find such material at the site.

97. The other worker on site who came to Mr Burnett’s assistance after he fell could have given evidence about its then state. Manhattan could also have led evidence to explain how it came to make its statutory report and what it did to the site, despite SafeWork’s instructions that it not be disturbed when it had the temporary handrail installed. But it did not do so. It must be inferred that such evidence would not have assisted Manhattan’s case.

98. That inference supports acceptance of Mr Burnett’s evidence. As do the other photographs, which show the state of the stairs and void before Mr Burnett’s fall.

99. The photos taken before Mr Burnett’s fall confirm that the handrail was only installed afterwards. It was when he was taken to the January photograph that Mr Burnett volunteered that before he fell, he had noticed that the boards near the stairs were unsupported. This is what the 8 February photograph showed, but he was not taken to it.

100. These photos are consistent both with Mr Burnett’s description of his fall and what he volunteered in cross-examination, according to which he stepped onto the board from which he fell, despite then knowing that it was unsupported.

Mr Burnett’s evidence about how he came to fall must thus be accepted

101. There is no question that the post-injury amnesia Mr Burnett suffered for a time must be taken into account in resolving what lies in issue about his memory. But as was accepted by Manhattan, that amnesia did not preclude Mr Burnett from recovering more of his memory of what had happened to him on the day he fell, after he spoke to the inspector. On the medical records, he did have such a recovery afterwards, long before he was discharged.

102. Nor did that preclude him from still having the memory of his fall when he later gave others an account of how he came to be injured, or at the time he made his statement and when he gave his evidence.

103. There were, in reality, only three ways that Mr Burnett could have fallen to the ground floor: by stepping onto an unsupported board covering the void which collapsed under him and then falling into the void to the ground below, as Manhattan reported and was his evidence; by missing a board near the stairs and stepping straight into the void; or by falling from the stairs, which like the void, were not protected by a handrail.

104. That the fall was from partway down the stairs, is not consistent with Manhattan’s statutory notification, with the very serious injuries which Mr Burnett suffered, with the inspector’s view that there had been a fall from three metres, or with what Mr Burnett remembered. Nor was there any suggestion that he missed the board entirely as he was walking towards the stairs and just stepped into the void, unprotected as it was by any railing.

105. Mr Burnett’s claimed memory of stepping onto a board as he approached the stairs for a third time carrying a load of tiles accords with what is revealed by photographs taken before the accident; what Stairman later advised Manhattan about alterations which had been made to the void protection before his fall; with Manhattan’s notification to SafeWork; and with what the inspector found.

106. As a result, I am satisfied that it must be accepted that Mr Burnett did have the memory of the fall which he persisted in claiming. In fact eventually, Manhattan actually relied on that memory in advancing its cross-claim.

Manhattan’s claimed negligence

107. The risk of harm on which Mr Burnett’s case was advanced against Manhattan was the risk of someone working on the first floor of its building site falling to the ground floor below and then suffering serious injury as a result.

108. On Mr Burnett’s case, such injury was both reasonably foreseeable and not insignificant. There was no issue that the risk of harm from a fall from the first floor to the ground below was significant and would likely result in serious harm. But whether his fall was foreseeable was still in issue.

109. Given the then unsafe state of the void protection, which the photographs put beyond argument, I consider that there can be no question about the existence of that risk.

Applicable principles

110. In resolving what lies in issue between the parties as to the various claims of negligence advanced, ss 5B and 5C of the Civil Liability Act 2002 (NSW) must be borne in mind. They provide:

5B   General principles

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

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

(b)   the risk was not insignificant, and

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

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

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

(b)   the likely seriousness of the harm,

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

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

5C    Other principles

In proceedings relating to liability for negligence—

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

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

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

The parties’ cases on duty

111. Mr Burnett and Griswold’s contended not only that Manhattan was aware of the unsafe state of the void protection before he fell, but that its duty extended to taking into account that a contracted worker might inadvertently do something unsafe while completing work he is given in the vicinity of the void.

112. Manhattan contended that its duty to Mr Burnett as occupier was qualified, relying on s 5B of the Civil Liability Act. It also contended that Mr Burnett had not taken reasonable care for his own safety and that it was not vicariously liable for the unauthorised acts of an independent contractor such as him: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 577-578; [1994] HCA 13.

113. Further, unless there were grounds to suspect unauthorised interference, negligent removal of the void protection by an unknown party did not fix Manhattan with liability: Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460.

114. This was disputed.

The duty

115. I am satisfied that Manhattan did owe Mr Burnett the duty of care he claimed, given the not insignificant risk of a worker such as he falling some three metres from the first floor into the unprotected void to the ground below and as a result, suffering catastrophic injury, or even death. It thus owed workers who came onto its site a duty to take reasonable care for their safety when working in the vicinity of the void.

116. While Manhattan relied on what was decided in Burnie, it must be noted that what there arose for consideration was far removed from this situation. The negligence alleged there involved damage caused to a very large quantity of frozen vegetables stored in a building owned by the Port Authority, which was destroyed by a fire caused during work undertaken by independent contractors engaged by the Authority’s head contractors.

117. There it was explained that “[w]here injurious consequences flow from the negligent manner in which an independent contractor does an authorized act and not from the nature of the act which was authorized, the employer is not liable”: Burnie at 578-579. But here it must be accepted that it was Manhattan who gave Mr Burnett the work he was doing near the void it had left unprotected at a time when the unfinished staircase was being used to access the first floor and the ladder was no longer in use, as I will explain.

118. In Parkview Constructions reference was made at [62] to Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12. There it was explained at [19] that a builder having possession of a site owes a duty to tradesmen there engaged, to exercise reasonable care to make a site where people work at heights safe for them to work upon. The Court was of the view that “[a]s the occupier with possession of the site for the undertaking of its contractual obligations for its own commercial benefit, a builder owes a duty to exercise reasonable care to avoid the exposure of persons coming on to the site to risk of injury from the dangerous condition of the site.”

119. Further, it was held that “[u]ndoubtedly an occupier, especially a non-technical occupier, is entitled to expect that a tradesman will deal with dangers or defects which his trade skills allow him in the ordinary way to perceive and deal with. That does not mean that a builder is free not to exercise any reasonable care about the safety of the building site of which it has possession”: at [21].

120. In this case, given Manhattan’s possession and control of this site, it also had to exercise reasonable care to make its site safe, given the work it engaged contractors to do at height in the vicinity of the unprotected void.

121. That was undoubtedly why Manhattan originally installed the void protection which entirely covered the void, while the ladder was in use. And also why, after Mr Burnett’s fall, it installed the temporary balustrade which prevented another fall into the void. Had either been in place on the day when Mr Burnett was injured, he could not have fallen as he did.

122. I am satisfied that given the risk which the unprotected void posed, Manhattan’s duty required it to maintain such protection, so that the site remained safe while workers such as Mr Burnett performed work it gave them to do in the vicinity of the void. That duty had to be met, as I will explain, as Manhattan knew that in the ordinary course, workers may be inadvertent to specific risks of which they should be aware, as they are going about their work.

Did Manhattan breach its duty?

123. For the following reasons, I am also satisfied that Manhattan did breach the duty it owed Mr Burnett, by failing to maintain the necessary void protection.

What Manhattan’s duty generally required

124. Mr Burnett performed manual, labouring type work on Manhattan’s site. He had qualifications as a tradesman painter, but he was not engaged to use those skills or the skills he used in operating the Christmas tree lighting business which Griswold’s undertook for a portion of each year.

125. In summary, there can be no question that so far as a subcontractor such as Mr Burnett was concerned, Manhattan’s duty required it to exercise reasonable care in relation to the safety of the building site of which it had possession, including in relation to the access it provided workers to the first floor, who were engaged to work there at height, given the distance to the ground below the void.

126. That is no doubt why the void protection was originally installed. On Manhattan’s records, it was later partially dismantled when the staircase was installed, but without a handrail also being installed to prevent a fall into the void.

127. The danger of a person then working on the first floor falling into the void, partially unprotected as it was at least from 8 February 2019, is thus apparent. That was only heightened by the removal of supports for boards remaining near the stairs without the installation of a handrail to prevent someone stepping onto an unsupported board.

128. Consistent with what the 8 February photo showed, Mr Burnett volunteered in cross-examination that on the day of his fall he had noticed that some of the remaining boards partially covering the void near the stairs were unsupported, even though the January photo to which he was taken, showed more of the void covered than it was on 8 February. That photo supported his evidence.

129. His evidence that on 27 February the access ladder was no longer in use and like others on site such as Mr Johnson and the owner, he gained access to and from the first floor by use of the unfinished, uncovered staircase was supported by the inspector’s evidence. The inspector also used the still unfinished stairs, the ladder not being usable, although by then the temporary balustrade had been installed.

130. I am satisfied that all this evidence, unchallenged as it was by evidence from witnesses Manhattan could have called, must be accepted. It establishes that when Mr Burnett fell, the condition of this site was dangerous.

The ladder

131. It is convenient at this point to deal with the remaining dispute about the ladder.

132. Manhattan was not a “non-technical occupier” of this site, but a builder who engaged subcontractors to undertake the work required on its commercial building project. It had both Mr Blencowe and Mr Johnson attend the site.

133. Inspector Holder’s evidence was that he first attempted to access the first floor of the building using the ladder. His report indicated that the trapdoor had been screwed shut and that was his belief when he gave his evidence, given that it would not move, even when he tried to lift it, applying the force he described. He could not, however, remember examining the screw.

134. There is no reason to reject that evidence, no evidence having been led by Manhattan to dispute it. It was not suggested that it was Mr Burnett who screwed the ladder shut, even though in cross examination he accepted that the screw could have been removed. But it had not been.

135. As the head contractor, the use made of the ladder was undoubtedly within Manhattan’s control. Having chosen not to call evidence about the ladder, the proper inference is that evidence it could have called would not have assisted its case. It follows that Mr Burnett’s evidence that at the time he was injured access to the first floor was no longer being obtained by ladder, must be accepted.

136. In the result, I am satisfied that Manhattan knew or ought to have known on the day Mr Burnett fell that the ladder was no longer being used to access the first floor, but the unfinished staircase was.

Was there a defect in the void protection?

137. The evidence also established that there was a defect in the void protection on the day Mr Burnett fell. That is because:

1. the staircase was L shaped. When the inspector used the stairs the temporary balustrade had been installed. While one flight of the unfinished metal spine of the stairs went up to a landing, at least some of the steps of the upper flight leading to the top floor, had been finished. This can be seen on the photos he took;

2. as Stairman advised by its 28 February letter, to which the 8 February photo was attached, it had installed the stair spine on 22 January. The void protection was then in place, meaning access was only permitted to the first floor by use of the ladder and trapdoor;

3. Stairman then also advised that when it installed the spine, the void protection had been left in place for safety, because glass balustrades were only later to be installed. That left the staircase unusable, but the ladder which gave access to the first floor, which was covered by a trapdoor, was then in place;

4. emails earlier exchanged between Stairman and Mr Blencowe, and another photo he had sent to Stairman with his 25 January email, showed the void protection still then in place. Mr Blencowe had then enquired about removing “the horizontal stringer under the landing to create more head height”;

5. the 8 February photograph showed that the void protection near the top of the stairs had by then been partially removed, with both boards and supports over and near the stairs missing and that there was then no balustrade;

6. Stairman advised Manhattan that this established that another party had “tampered” with the void protection between 25 January and 8 February, but the evidence left open that this was the result of steps Manhattan had taken after Mr Blencowe’s enquiry;

7. Manhatten called no evidence to establish what it had done or knew about the removal of the void protection and use of the stairs, despite evidence that Mr Johnson was onsite on the first floor on the day Mr Burnett fell and that Mr Blencowe was on site the previous Friday;

8. Mr Burnett’s evidence established the unsafe state of the void protection that day, even though he was not taken to the 8 February photo. His evidence about the January photo showed less of the void protection having been removed by that time, but the 8 February photo supported his evidence that more supports under the boards which remained near the stairs had been removed before 27 February, when Mr Burnett fell.

138. There was no suggestion that Manhattan showed the inspector these photos or its correspondence with Stairman. Had it done so, they may have affected his opinion about how Mr Burnett fell, likely confirming his views about the responsibility Manhattan shared for the fall.

139. Nevertheless, I am satisfied on all the evidence that it cannot be doubted that there was a defect in the void protection when Mr Burnett fell.

Ought the defect in the void protection to have been known by Manhattan on 27 February 2019?

140. I am also satisfied that this defect in the void protection was not only obvious, but known to Manhattan as well as Mr Burnett, as it was visible when ascending the stairs, as Mr Burnett accepted, as well as from the first floor .

141. Mr Burnett’s evidence that Mr Blencowe had been on site in the preceding days and Mr Johnson on the morning of the day he fell, when Mr Johnson used the stairs and instructed him in his work, must be accepted. It follows that it must be inferred that they, like Mr Burnett, also saw the unsafe state of the defective void protection before his fall, with the result that Manhattan also knew of the state it was in.

142. Even if that was not known to Manhattan, in all the circumstances it undoubtedly ought to have been, given its role on this site and the evidence which also establishes that:

1. the uncovered void and unfinished stairs were not protected by a balustrade which could then readily be seen;

2. Mr Blencowe had approached Stairman in January about the removal of a horizontal to improve access to the stairs;

3. consistently with this the January photo showed that some boards had been removed and the 8 February photo showed that a supporting beam as well as more boards near the stairs had been removed; and

4. handrails which would have prevented Mr Burnett’s fall into the void were only installed after the fall.

Was the risk of a fall from the first floor to the ground floor in the stair void reasonably foreseeable?

143. I am also satisfied that the very significant risk of serious injury which a fall into the unprotected void posed on this site, after the void protection was removed before Mr Burnett fell, was not only foreseeable, but actually foreseen.

144. That is why the entire void was originally covered by supported boards, as Stairman explained in its 28 February letter. The glass balustrade which would have prevented a fall into the void was not due to be installed until later in the construction process, after the staircase had been completed.

145. It was Mr Blencowe who enquired about removal of the horizontals, because of head clearance, when the stairs were to be installed. Some boards and supports were later removed, with resulting risk to those working in the vicinity of the void and stairs, given the absence of any railing around them to prevent a fall into the void. That was a risk which was not only obvious, but materialised when Mr Burnett fell.

146. Anyone who knew about or saw the state in which the void protection had by then been left, or who saw that a board support near the stairs had been removed, as they necessarily must have when they walked up the stairs, would have also been alerted to the resulting risk of a fall, as Mr Burnett accepted he had been on the day he fell.

147. On the inspector’s note the fall distance was about three metres. As was Mr Burnett’s case, a fall from that height on a construction site gave rise to a serious risk of injury, potentially death. On all the evidence there can thus be no question that risk was foreseeable.

148. That was undoubtedly why the void protection was initially installed, preventing both the unfinished stairs being used, as well as a fall into the void and to the ground below. That was also why access to the first floor had been required to be obtained by use of the ladder and trapdoor which was installed when the void protection was put into place. And why, after the fall, a temporary balustrade was installed, despite SafeWork’s instructions not to tamper with the site.

149. Removal of some of the boards and board supports, without the installation of a balustrade, made the risk of harm which materialised when Mr Burnett fell entirely foreseeable.

150. It follows that the risk of a worker such as Mr Burnett falling from the first floor into the stair void to the ground below, when working on the first floor in its vicinity was reasonably foreseeable to an entity in Manhattan’s position, given the overall control which it had of this site. It did not have to ensure his safety. But it did have to exercise reasonable care to minimise the risk which accessing the first floor by use of the stairs posed, given the foreseeable risk of injury which the unsafe state of the void protection then posed: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [43].

151. But this it failed to do.

Was it foreseeable that Mr Burnett would attempt to use the stairs as he intended when he fell?

152. I am also satisfied that after the void protection was partially removed and the ladder was no longer in use, it was entirely foreseeable that those who then came on site to work on the first floor, including Mr Burnett, would not only use the stairs to access that floor, but would then work in the vicinity of the unprotected void.

153. That is because the stairs were then the only readily available means of access to the first floor. That is consistent with their use not only by Mr Burnett, but also by the owner and Mr Johnson on the day Mr Burnett fell, and afterwards by the inspector.

154. It must thus be accepted that it was also entirely foreseeable that Mr Burnett would also use the stairs on the day of his fall as he intended, when undertaking the unskilled work he was given by Manhattan to do, as Mr Johnson had directed him earlier that day, to remove tiles from an upper floor bathroom. The foreseeable result was that Mr Burnett was able to step onto an unsupported board over the unprotected void as he approached the stairs, which he intended to use to carry the tiles down, that being the immediate cause of his fall.

Breach is established

155. I am also satisfied that Mr Burnett has established that Manhattan breached the duty it owed him.

156. Manhattan’s case, that account must be taken of evidence which established that he and thus Griswold’s both knew of the defect which led to his fall, but that there was no evidence that Manhattan did, with the result that it did not bear any culpability given the causal potency of their conduct, cannot be accepted.

157. That follows not only from all the evidence I have discussed about what it knew or ought to have known, but also from the inferences which must necessarily be drawn against Manhattan, it having called no evidence to challenge what the evidence which was led established.

158. They also help to lead me to be comfortably satisfied that Manhattan’s alleged breach of the duty it owed Mr Burnett has been established.

There was a failure to exercise reasonable care

159. I am also satisfied that the evidence establishes Manhattan’s failure to exercise the reasonable care which it was required to exercise, given that use of the ladder, which could still have given safe access to and from the first floor, had been discontinued before Mr Burnett fell; the obviously unsafe state of the staircase; and the defective void protection.

160. The possibility of someone working in the vicinity of the void inadvertently falling into it, was particularly important for Manhattan to take into account. That follows from the unfinished state of the stairs; the fact that the void and the stairs were left unprotected by a balustrade; and the fact that some of the boards left over the void, near the stairs, were then unsupported.

161. As I will return to explain further, I have also concluded that Mr Burnett stepping as he did onto a board which he knew was unsupported as he approached the stairs for the third time carrying a load of tiles, can only have been the result of some temporary inadvertence or inattention on his part.

162. That follows plainly from the obvious risk of which he accepted he was aware on the day he fell. Namely, that stepping onto an unsupported board lying over part of the void could cause it to fall into the void, inevitably resulting in his fall to the floor below, with the also very obvious result which followed, the serious injuries which he actually suffered.

408. But the evidence established various expenses which had been incurred and variously paid for. What iCare had paid for included things like taxi fares incurred during the time that Mr Burnett was unable to drive, for example, as well as commercial cleaning and other services he was provided with. Mr Burnett’s home had also been modified, matters addressed in his own and the expert evidence.

409. Mr Burnett’s evidence included the various impacts his injuries have had upon him, including when he travels and the resulting assistance which he has required and received. Mr Burnett’s evidence was also supported by that of medical practitioners who had examined him, earlier explained, and other experts.

410. Much of this both Ms Sale and Ms Smith had considered in their reports and some of it had been agreed.

411. By a note only provided on 7 November, the parties revealed the results of their ongoing discussions after the filing and service of further affidavits which explained payments Mr Burnett had received. They had shed light on his claim for out-of-pocket expenses and Griswold’s s 151Z claim, and eventually had resulted in an agreement that out-of-pocket expenses had amounted to $567,582.45, as at 28 June 2023.

412. It was also noted that Mr Burnett would continue to receive compensation payments until judgment was entered and damages were paid. It was thus intended that Griswold’s would then update the payment figures and the parties would endeavour to calculate any claim under s 151Z and interest, based on my determination of liability and apportionment, if any, as well as costs.

413. In the result, I am satisfied that the damages for the claimed past out-of-pocket expenses which the parties have agreed, were established. I certainly do not accept that Mr Burnett has received more than he needed, given all of his injuries and what he pursued in his recovery, on which Manhattan relied as it did before agreement was reached.

414. Plainly, those expenses would not have been incurred, but for the injuries which the fall caused.

Future out-of-pocket expenses

418. The parties’ agreement did not resolve the dispute over future expenses.

419. Mr Burnett had calculated these to be $652,239 by reference to expenses he had incurred for things such as medical, rehabilitation, physio, gym, and pharmaceutical expenses. That figure had been calculated by reference to his actual expenses in the preceding 12 months, which were pursued as providing a reasonably typical guide for the future.

420. Manhattan calculated these expenses to be only $47,397. This was not revisited.

The parties’ cases

421. Mr Burnett’s case was that his need to incur such expenses was not only likely to continue, but to increase as he aged and that Manhattan’s case depended on it being accepted that in future he would, for example, require less medication and analgesics and fewer consultations, despite his ongoing problems. His calculation had also had necessary regard to a deduction for vicissitudes.

422. Manhattan’s case relied on past expenditure not necessarily translating into future need. Its case otherwise rested on the improvements which Mr Burnett had achieved by his pursuit of activities which had resulted in that improvement.

This claim is established

423. I have already explained how Mr Burnett successfully pursued his rehabilitation, how he has been able to reduce his pain medication and the treatment and medication he still requires and pursues. That is reflected in the agreement reached in relation to past expenses. I am well satisfied that if he is to maintain his current position, such expenditure will necessarily continue.

424. I am also satisfied that Manhattan’s approach did not take necessary account of the need to maintain Mr Burnett’s recovery. That depends on his ongoing pursuit of what past expenses were incurred for. That he has a continuing need for medical assistance, pharmaceuticals and the treatment which has enabled his recovery, the need for which is unlikely to diminish further, given what all the expert evidence I have discussed establishes, must be accepted.

425. His approach to the calculation of these damages must thus be accepted. That is supported by the real risk which the evidence establishes exists, that Mr Burnett might in future incur even greater expenses, given the real risk of deterioration which he faces, including because his spine may require further treatment despite all that he does to ensure that he does not have to face this.

426. I consider that the agreement which the parties finally were able to reach in relation to past out-of-pocket expenses, also supports these conclusions.

Past care

427. Mr Burnett calculated this to be $97,674 and Manhattan, $50,456.

428. Mr Burnett’s calculations reflected not only his evidence about the paid care he had required and received in the past, but what his wife had provided gratuitously, as well as the evidence of the occupational therapists. He contended those past payments would not have been made if he did not require that assistance.

429. Manhattan contended that would not be accepted as necessarily establishing Mr Burnett’s need for the care he had received and that s 15 of the Civil Liability Act precluded the damages pursued for the claimed gratuitous care.

The principles

430. Section 15(2) of the Civil Liability Act precludes damages for gratuitous attendant care services, defined to include those of a domestic nature, for which a claimant has not paid, “unless the court is satisfied that:

(a)   there is (or was) a reasonable need for the services to be provided, and

(b)   the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c)   the services would not be (or would not have been) provided to the claimant but for the injury.”

431. These are factual questions to be determined on what has occurred or will occur: Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 at [52]. There it was also explained that s 15 does not require such “services being assessed as though they were performed by professional providers or by reference to any posited objective standard.”

432. Further, such services must be provided for at least six hours per week and for a period of at least six consecutive months: s 15(3). There was no issue that the statutory thresholds had been satisfied.

The evidence

433. There is no suggestion that before the accident Mr Burnett had any need for gratuitous attendant care services. The evidence establishes the nature of the domestic role he played before his fall, which then ceased, with the result his need for care which Ms Sale and Ms Smith accepted he had after his fall, which decreased over time.

434. Mr Burnett’s evidence in his first December 2021 statement included that his accident had brought his first marriage to an end and that he was then receiving a total of eight hours per week domestic assistance from iCare for things such as cleaning, laundry and bed making, which he could not manage himself, as well as with lawnmowing.

435. By September 2022, Mr Burnett was relying on Ms Sukwong for domestic assistance, she providing three hours a day cleaning, with him by then being able to perform a small amount of such work, as well as two hours cooking, lawnmowing and light gardening for four hours per week. He was by then also able to manage some mowing but found that it increased his pain and restricted the movement in his legs. Ms Sukwong’s evidence supported that of Mr Burnett, but she was not required for cross-examination.

436. This evidence also accorded with the histories Mr Burnett has given. In his August 2020 report, Dr Low considered that Mr Burnett would continue relying on external assistance for the foreseeable future, given that in his opinion, he was unable to tolerate regular household tasks including mopping, vacuuming, cleaning bathrooms and gardening, given the injuries he had sustained.

437. In his September 2021 report, Dr Low noted Mr Burnett was then living with his 16-year-old son and was able to undertake simple tasks such as hanging out washing, but he continued to have the assistance of cleaners and assistance with gardening.

438. In his June 2022 report, Dr Low did not deal with these matters. In his April 2023 report, he noted that domestic duties were then largely undertaken by Ms Sukwong and that Mr Burnett then reported that “he is unable to vacuum, mop, clean bathrooms or change bed sheets for long periods of time” and that he “may assist with simple tasks such as cooking, unloading the dishwasher and occasional gardening activities.”

439. In his cross-examination, Mr Burnett agreed that he could by then do such tasks, including using the whipper snipper he could be seen operating on the footage.

440. This was supported by the conclusions that Ms Sale and Ms Smith reached in their April 2023 joint report. They agreed that Mr Burnett had a requirement for past gratuitous personal care after he was discharged from hospital, as well as a requirement for future domestic care. But they did not agree about all that he required.

441. Ms Smith considered that initially, when Mr Burnett received no assistance at home after his discharge from hospital, given the other residents and his pre-accident reported level of contribution, he required seven hours per week. When he was provided with assistance by iCare, he received eight hours per week for domestic tasks, as well as help with the garden and maintenance. That continued after his first wife left him in October 2019, but Ms Sale considered that he did not then require more assistance.

442. Ms Sale considered that on discharge, when Mr Burnett was mobilising with crutches and had limited standing and walking tolerance and was using a wheelchair outside, he required 11.25 hours gratuitous care. She considered that he needed more assistance than he was later provided by iCare, recommending an additional 6.25 hours, given all he had previously done, his then reported falls and inability to drive. After his separation, 3.25 hours more were recommended, given his psychological deterioration at that point, but later lesser or no requirements at times when he travelled to Thailand.

443. Commercial care had ceased in September 2022 and Ms Sale assessed that Ms Sukwong then provided some 5.65 hours of gratuitous care. Ms Sale and Ms Smith also agreed that his injuries had left Mr Burnett at increased risk of falls, which meant that some home modifications were recommended, but he had not installed railings during his post-accident renovations. Other equipment was also recommended to maintain his current functional capacity.

444. When he was cross-examined Mr Burnett was also asked:

“Q.   I just suggest to you that had you met your wife before the accident she would still do this amount of housework?

A.   Well I was married before the accident.

Q.   I know, but ignoring, it's just a hypothetical.

A.   Yeah.

Q.   Had you met her before the accident she would still do this same amount of housework, wouldn’t she?

A.   Yes.”

445. Manhattan relied on this to submit that consideration would have to be given to what domestic assistance Ms Sukwong would have provided, but for his accident.

The claim is established

446. On all of the evidence I have discussed, I am satisfied that it must be accepted that Mr Burnett did require the care he has received since his fall, as well as care he required after discharge from hospital, but did not receive. Consistent with his recovery, he received less paid care over time, as his capacity to do more himself improved. Eventually, much of his care was provided by Ms Sukwong.

447. I am also satisfied that Mr Burnett’s explanation of his improvement over time, but of his ongoing need for the care which he received must also be accepted, given the nature of his injuries, what he had to do to improve his condition and the real risk of deterioration which he faces even now.

448. The evidence certainly establishes that had Mr Burnett not remarried as he did, he would have had to pursue paid care, given his ongoing needs. But his evidence that if he had not been injured, Ms Sukwong would still have undertaken the domestic tasks which she took on must also be taken into account, given the requirements of s 15(2)(b).

449. That must have the result that the order Mr Burnett sought cannot be made in the terms he sought, he not having met the onus which that provision imposes upon him. In the result, the damages awarded cannot comprehend that aspect of his claim.

450. These damages thus must be confined to the past paid care Mr Burnett received and that which he required after release from hospital but did not receive, which should be assessed at the same level as he was initially provided by iCare. That calculation must also now be undertaken by the parties.

Future care

451. Mr Burnett calculated this to be $396,002 to $640,592, with the final sum depending on whether the care was gratuitous or commercial. On his approach $500,000 properly balanced the possibilities which had to be considered. Manhattan rejected this, it calculating the appropriate figure only to be $21,986.

The parties’ cases

452. Mr Burnett’s case was that while he was presently receiving the care he still needed on a gratuitous basis from his wife, given that his need for care will last over his lifetime, account also had to be taken of the possibility that he may in future require commercial care, as he had previously. For example, in the event of the breakdown of his marriage or his wife’s death.

453. Thus, the proposed compromised figure was pursued as being appropriate in all his circumstances, given all the time that he might still live and approaching the possibilities which arose for consideration in accordance with Malec v Hutton.

454. Manhattan contended that such a sum could not be awarded, given Mr Burnett’s concession in cross-examination that had he met his wife before his accident, she would still be doing the same amount of housework and that there was no evidence that he would engage commercial assistance if he had the means to do so.

455. Further, while Dr Giblin and Dr Maxwell had agreed that Mr Burnett required an hour of commercial assistance per week, evidence to which no objection was made, such evidence was “not the kind of ‘expertise’ which is normally attributed to orthopaedic surgeons” and so was clearly inadmissible: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 at [93].

There must be damages for future care

456. Damages in respect of a need for commercial domestic assistance likely to arise in the future, after the availability of gratuitous assistance ceases may be awarded: TheNominal Defendant v Lane [2004] NSWCA 405 at [75]. That depends on the evidence. In that case, the evidence established that commercial assistance was likely to be needed after the plaintiff’s mother reached age 65, it being unlikely that other gratuitous care would then be available.

457. In Miller v Galderisi [2009] NSWCA 353, the evidence established a need for additional domestic assistance as a result of the accident, of four hours per week, then also being provided by the plaintiff’s wife. Account could thus be taken of that circumstance changing in the future, with the result that domestic assistance would foreseeably be required from a commercial provider: at [19].

458. It was explained that the relevant variables to take into account in such a case were life expectancy, there 24 years, the respondent being aged 61 years old; the respondent’s medical history, which demonstrated a significant possibility that he would not survive until age 85 years, with the result a necessary discount; the proportion of disabilities resulting from a pre-existing condition and not from the accident, which gave rise to a significant possibility that further ill health would overwhelm the needs created by the accident; due to that ill health, the fact that age alone was likely to create a similar need for domestic assistance in later years, to that created by the accident; and the ability and willingness of family members to provide assistance: at [20]-[21].

459. In this case, Mr Burnett was aged 52 at the time of the accident and now has a life expectancy of some 27 years; he had no relevant pre-existing ill health which needs to be considered; it was the accident alone which gave rise to his ongoing need for care, now at the level which is being provided by his wife; there is no suggestion that such assistance would be provided gratuitously by anyone else if her assistance ceased; and there is a real possibility that she will not always be willing or able to continue providing that care in the future.

460. That could result from the breakdown of the marriage, or Ms Sukwong no longer being able to provide the care she now provides him, as the result of her own health, age or if she took up employment, for example; or if she is no longer willing to do so.

461. Determining Mr Burnett’s loss on this account in the future must be approached in the way explained in Malec v Hutton. There it was observed at 643:

“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. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. 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.”

462. I am not persuaded that the possibility that Ms Sukwong will not continue providing the care Mr Burnett requires in future is so low as to not require any damages being awarded to him on this account. That is because the possibilities which arise for consideration are not fanciful, or even slight. For instance, there are undoubtedly a high number of marriages nowadays which break down and end in divorce. I consider that is a matter of which judicial notice must sensibly be taken.

463. The guiding principle is that “wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court ‘notices’ it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt”: Holland v Jones (1917) 23 CLR 149 at 153; [1917] HCA 26 recently discussed in Amante v R [2020] NSWCCA 34 at [66].

464. That currently a very large proportion of marriages end in divorce, I am satisfied, is now so generally well known that ordinary people may reasonably be presumed to be aware of this, so that this does not require either evidence or further investigation. Further, in her report, Ms Sale discussed the possibility of Ms Sukwong taking up employment.

465. In the result, while I am satisfied that damages for future care must be awarded, I am not satisfied that they can be assessed to be $500,000. I have concluded that the damages awarded must be $390,000, having taken into account what has been paid for past care, the evidence of what commercial care now costs, Mr Burnett’s ongoing care needs, which are likely to continue, as well as the other considerations earlier mentioned.

Judgment for Mr Burnett

466. For these reasons, I am satisfied that there must be judgment for Mr Burnett against Manhattan.

467. Orders necessary to otherwise reflect my conclusions need to be formulated by the parties and some outstanding calculations undertaken.

Costs

468. The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that costs as agreed or assessed follow the event. In this case, that would be an order in favour of Mr Burnett.

469. The parties should confer about the appropriate orders and in the event of any disagreement, I will hear them.

Orders

470. For these reasons I order that:

1. For the reasons given, I now enter judgment for Mr Burnett against Manhattan Homes Pty Ltd.

2. The parties are directed to confer about the final calculations, the terms of the final orders including as to costs and to file proposed orders within 14 days. In the event of any remaining dispute, they should also approach within 14 days and file and serve an outline of submissions addressing that dispute.

Amendments

15 December 2023 - On front page of in the Decision section, the following words have been deleted: "both" and "and The Griswold's Outdoor Xmas Pty Ltd".

At paragraph 466 the following words have been deleted: "both" and "and Griswold's".

At paragraph 470(1) the following words have been deleted: "both" and "and The Griswold's Outdoor Xmas Pty Ltd".

Decision last updated: 15 December 2023