Butler v Mitchell - [2006] NSWSC 197

No judgment structure available for this case.

CITATION: Butler v Mitchell & Anor [2006] NSWSC 197
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 05/09/2005, 06/09/2005, 07/09/2005, 08/09/2005, 20/02/2006, 21/02/2006, 22/02/2006, 23/02/2006

JUDGMENT DATE :
29 March 2006

JUDGMENT OF: Hoeben J at 1

DECISION: Judgment in favour of the plaintiff in the sum of $578,514.40; Costs reserved.

CATCHWORDS: Tort - Negligence - What was a reasonable response by lessors to location of pump - Lessors' duty of care to lessee - one acre rural property - pump located in dangerous location - whether location of pump constituted defect - whether content of duty of care required lessors to move pump to avoid foreseeable risk of injury - damages - claims for gratuitous attendant care and future economic loss sections 13 and 15 Civil Liability Act 2002.

LEGISLATION CITED: Civil Liability Act 2002

CASES CITED: Ahluwalia v Robinson [2003] NSWCA 175
Husher v Husher (1999) 197 CLR 138
Jones v Bartlett and Another (2000) 205 CLR 166
March v E and MA Stramare Pty Ltd (1991) 171 CLR 506
Sakoua v Williams [2005] NSWCA 405
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Adam Charles Butler - Plaintiff
Raymond Mitchell - First Defendant
Eileen Mitchell - Second Defendant

FILE NUMBER(S): SC 20142/2003

COUNSEL: Mr I Wales SC - Plaintiff
Mr G Gregg - 1st and 2nd Defendants

SOLICITORS: Lough Wells Duncan - Plaintiff
Ebsworth & Ebsworth - 1st and 2nd Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Wednesday, 29 March 2006

20142/2003 – Adam Charles BUTLER v Raymond MITCHELL & ANOR
JUDGMENT

1 HIS HONOUR:

Nature of claim

2 The defendants are the owners and the lessors of that property. The plaintiff has brought a claim in negligence against them on the basis that they were in breach of the duty, which they owed to him as lessors, in that they failed to take reasonable care to avoid a foreseeable risk of injury.

3 The essence of the plaintiff’s complaint is that water was supplied to the property from a nearby creek by means of a pump situated above that creek. It was necessary on a frequent basis to prime the pump in order to maintain a supply of water. It was the plaintiff’s case that the pump was located so close to the edge of the embankment above the creek that a person priming the pump was exposed to the risk of falling and that this is what happened on 2 May 2001.

Factual background

4 Although there were a number of disputed issues of fact, the general background was relatively uncontroversial. I have indicated those matters which were in dispute. Except as otherwise indicated, I find the factual background to be as set out in the following paragraphs.

5 The plaintiff was born on 6 July 1972. At the end of 1990 he left Bomaderry High School, having completed year 12. He travelled to the United Kingdom and after some months returned home. Thereafter he worked in the following capacities: February 1991 – casual security guard; October 1991 – casual farmhand; December 1991–March 1992 – casual fruit picker and February 1992 – casual labourer.

6 In March 1992 the plaintiff applied to join the Navy. The application was successful and on 20 July 1992 he entered the Navy. He was discharged from the Navy on 11 September 1996. During his period with the Navy, the plaintiff served in the submarine branch of that service. Although he enjoyed that work, he resigned from the Navy because he was almost constantly at sea and had very little shore time. While in the Navy he worked mostly as a sonar operator.

7 Although the plaintiff had completed a number of courses in the Navy and during his last posting had been typing letters for superiors, I formed the opinion that his skills were essentially manual. Not only did he have no interest in sedentary work but had shown little aptitude for it. The examples of his written work, which were placed before me, supported that conclusion.

8 In relation to his health, the plaintiff was only prepared to concede an irritable bowel syndrome during his naval service and some football injuries. The plaintiff did, however, refer to a fall down some stairs but little detail was provided.

9 Under cross-examination it emerged that the fall down the stairs had occurred in May 1996 and had been quite serious. It was associated with an episode of binge drinking. The plaintiff suffered injuries to his back and neck and thereafter experienced back pain on an intermittent basis. He also suffered a head injury with loss of consciousness and some post-traumatic amnesia for about six days. At the time of his discharge from the Navy, he was still complaining of back pain.

10 It also emerged that shortly after his discharge from the Navy, he had been assaulted and severely beaten while in Kings Cross. He had lost consciousness in the course of that assault and required a laparotomy. This incident formed the basis of a claim to the Victims’ Compensation Tribunal.

11 Another incident occurred in June 1999 in Dubbo. The plaintiff was assaulted by four assailants. He was struck on the right side of the face by a wooden post, fell to the ground and was kicked. He lost consciousness and was not aware of anything until he woke at the Dubbo Base Hospital. He was discharged after 24 hours. He suffered injuries to his head, face and low back. A CT scan of the brain and other x-rays showed no abnormality. He was left with some numbness in the face.

12 Between September 1996 and May 2001 when the accident occurred, the plaintiff suffered from intermittent back pain. On occasions he wore a back brace. This back pain did not prevent the plaintiff from engaging in heavy labouring work. The plaintiff agreed that while in the Navy he had engaged in binge drinking while on shore leave but said that otherwise his consumption of alcohol was moderate.

13 I formed the opinion that the plaintiff had not been entirely candid with the court when giving evidence in chief as to previous health problems.

14 After his discharge from the Navy, the plaintiff went back to farm labouring work. He did work repairing tractors for a period of time. During 1998 and early 1999 he worked at the Cudgegong Abattoirs at Mudgee. For over six months during 1999 the plaintiff worked for Blue Line, an air conditioning company. He met his wife, Kellie, in 1999 and they were married on 15 April 2000. After meeting Kellie the plaintiff moved to Sydney where he worked as a baggage handler at Sydney Airport. He did not like living in the city.

15 In early 2000 the plaintiff and Kellie formed the intention of moving to the Kangaroo Valley area. The plaintiff had large dogs which required considerable space – three Great Danes and a Kelpie. They found that landlords were reluctant to lease premises where the proposed lessees had large dogs. It was also the plaintiff’s intention to start a business of his own in which he would perform contract labouring and other work for landowners in the Kangaroo Valley area. By June 2000 the plaintiff had commenced his business but he and Kellie had been unsuccessful in obtaining suitable premises from which he could run that business and care for the dogs.

16 In mid June an advertisement in a post office came to the plaintiff’s attention. It had been placed by the tenants of the property, the subject of these proceedings, who wanted someone to take over their lease. As a result of that advertisement the plaintiff and his wife inspected the property, contacted the agents, who were Ray White at Nowra, and on 26 June 2000 entered into a residential tenancy agreement (exhibit E). Although the tenancy agreement was signed on 26 June 2000, the plaintiff and his wife did not actually occupy the property until 6 July 2000. When the lease term expired in February 2001, the plaintiff and his wife remained on the property on a monthly tenancy.

17 The property comprised an old house, an old shed, a small garage and an elevated water tank, which held between 400 and 500 gallons. A fuller description of the property is contained in Exhibit L, a report of Dr Neil Adams and Associates, dated 9 July 2002. That report also contains useful photographs of the property.

18 The evidence of the plaintiff was that he was told by the former tenant that there was a pump by the creek but that he did not inspect it before entering into the lease. The rent was $150 per week, which in his opinion was about average for the area. It was not unusual in that area to have a pump system for the supply of water. He and his wife were eager to enter into the lease. This was because the property was suitable for his business and they needed a place for the dogs.

19 There were no direct negotiations with the defendants. The plaintiff did not meet Mr Mitchell until he had been in occupation for about two weeks. All the negotiations in relation to the lease were carried out by Kellie with the Ray White Real Estate Agency. The plaintiff’s only participation was to sign the lease and assist Kellie in making a list of defects in the premises before the lease was signed.

20 There was no mains water supply to the house. Water came from a nearby creek (Broughton Creek) by means of a pump to the water tank. Water came to the house from the water tank by gravity flow. The water tank was located approximately 200 metres from the house. There was no means of determining how much water was in the tank. When the tank overflowed it was full, when water ceased to flow it was empty. It took more than four hours to fill the tank.

21 Water was supplied to the tank by means of an electric pump. The pump was located in a small tin shed, approximately 4-5 metres above the creek. An inlet pipe ran from the pump into the creek. At the end of the inlet pipe was a non-return foot valve, which was protected by a metal grate. The theory was that water could flow into the pipe but not out. In reality from time to time the valve became blocked with pine needles and other litter in the creek so that it became jammed open. The pump would not properly operate until the obstruction was removed.

22 An outlet pipe went from the pump to the tank. There was no evidence as to the distance between the pump and the tank, but from exhibit 20 (a diagram which was not to scale) the distance appears to have been in excess of 200 metres. There was also no evidence as to the distance between the pump shed and the house. Again, exhibit 20 suggests that the distance was in the order of 400 metres.

23 Each side tendered photographs of the pump shed and the pump. All of those photographs were taken after the plaintiff’s accident on 2 May 2001. Apart from the photographs in exhibit L (the report of Dr Adams), it was not clear when the other photographs relied upon by the plaintiff were taken, except that they were taken before he left the premises at the end of October 2001. For example, a number of photographs of the pump show modifications, which were not there at the time of the accident. It seems to me that the most accurate depiction of the pump at the time of the accident and when the plaintiff and his wife were in occupation of the property, is that shown in exhibits F(4) and F(5).

24 Although it is dangerous to draw conclusions from photographs, particularly when those photographs were taken some time after the events they are meant to depict, it seems to me that some conclusions can be drawn as to the position of the pump shed and the pump in relation to the embankment. Some approximate measurements were made by Dr Adams and exhibit M(1), which shows Kellie holding a bucket next to the pump, provides a reference point as to the dimensions of the pump. For completeness I find that the rock shown in Exhibit M(1) was not present at the time of the accident.

25 With that qualification it seems to me that exhibits M(1) and photographs 4, 5 and 6 in exhibit L provide an accurate depiction of the position of the pump and pump shed in relation to the embankment. The pump was attached to a concrete base and was positioned approximately 1 metre from the edge of the embankment. At the entrance to the pump shed, where one would normally stand to prime the pump, the ground was level but then immediately fell away in a gradual downward slope towards the creek.

26 When the tank was empty it was necessary to walk to the pump shed and to turn on the pump by means of a switch attached to the wall of the pump shed. This would start the pump, which would continue to move water from the creek to the tank until it was turned off. As indicated, the only way the occupants of the house knew that the tank was full was when it commenced to overflow. It was then necessary to walk back to the pump shed and turn off the pump. That was how the water supply system was meant to operate. The pump and pump shed had been in that position for at least 20 years when the plaintiff and his wife commenced occupation.

27 The reality was somewhat different. According to the plaintiff, the pump only operated when the switch was turned on approximately 10% of the time. The evidence of Mr Mitchell, the first defendant, was that the pump operated most of the time when switched on. The evidence of Mr Hinkley, who was a handyman contractor who worked for the defendants, was that the pump operated correctly about one third of the time.

28 I prefer the evidence of Mr Hinkley. After the plaintiff’s accident it was Mr Hinkley who operated the pump so that water could be supplied to the plaintiff and his wife over the next five-six months. There was no reason why he would tell anything other than the truth. I found him to be an impressive witness.

29 It was the plaintiff’s evidence that a full tank would last between two and four days so that it would be necessary to turn on the pump two to three times a week. The evidence of Mr Hinkley was that after the plaintiff’s accident he found it necessary to turn on the pump once or twice a week. Once again I prefer the evidence of Mr Hinkley.

30 If the pump failed to operate correctly when turned on, it was necessary to prime it manually. The plaintiff’s evidence was that he used follow a diagonal path down to the creek from the pump shed and fill up two plastic buckets. It seems to have been common ground that this was a tedious but not dangerous activity. Although there was some controversy about the size of the buckets, they seem to me to be standard 15 litre buckets. The plaintiff would remove a lid from the top of the pump using a spanner, open the valve on the inlet pipe and pour the buckets of water down through the opening at the top of the pump until water spilled out. He would then screw the cap back on and start the pump. He would put his head down to listen at the inlet and outlet pipe to hear the flow of water to ensure that the pump was operating correctly.

31 Mostly the pump would operate correctly the first time it was primed but on occasions it would be necessary to prime it a second time. This was described by Mr Hinkley as “missing the prime”. If the pump still did not operate, it was usually because pine needles or some other obstruction had jammed the valve in the creek. It would then be necessary to go into the creek to clear the obstruction.

32 The plaintiff’s evidence was that no matter how one carried out the priming function, there would always be water on the ground at the feet of the person performing that task. He described the ground at his feet as muddy and slippery when carrying out the priming of the pump.

33 There were two other versions of how the pump could be primed. I disregard the version given by Mr Mitchell since it is clear that the only occasions that he had primed the pump were when he first acquired the property in the early 1980’s. Even using his method there would still be a lot of water on the ground at the feet of the person carrying out the priming.

34 The method used by Mr Hinkley was as follows. He would check to see whether there was water in the inlet pipe by removing a cap on that pipe. If there was water in the inlet pipe, he would simply turn on the pump. If there was no water in the inlet pipe, this meant that the pump would have to be primed.

35 His method of priming was different to that of the plaintiff. He would open the valve on the outlet pipe thereby allowing water which was in that pipe to run back through the pump into the inlet pipe. When the inlet pipe was filled, the valve on the inlet pipe would be closed so that water would then flow into the pump. If there was not sufficient water in the outlet pipe, or the pump missed its prime, it would still be necessary to go down to the creek and fill up buckets of water. Whichever method was used, the priming of the pump was difficult. Mr Hinkley described it as “a mongrel pump to start” (T.258). Nevertheless, none of the suggested methods made it necessary to go to the back of the shed, ie that side of the shed which faced the creek.

36 An issue arose as to whether this method of priming the pump had ever been explained by Mr Hinkley to the plaintiff. Mr Hinkley’s evidence was that he had no recollection of having done so but he thought he must have explained it to the plaintiff, otherwise the plaintiff would not have known how to prime the pump.

37 The plaintiff in his evidence in chief and cross-examination made no mention of Mr Hinkley or anyone else explaining to him how to prime the pump. His evidence was that there was a similar pump on his parents’ property and he had 20 years’ experience in priming such pumps (T.25-26). That evidence was confirmed under cross-examination (T.74-75).

38 After Mr Hinkley had given evidence as to how he primed the pump, the plaintiff was recalled. His evidence on this occasion was that Mr Hinkley had shown him exactly how to prime the pump when he first occupied the premises. He said that he tried to use the technique suggested by Mr Hinkley of using the water in the outlet pipe, but he found that it very rarely worked. When pressed under cross-examination the plaintiff was somewhat vague as to exactly what had been said to him by Mr Hinkley.

39 The importance of this issue in the plaintiff’s case was because of the evidence by the plaintiff that following the priming of the pump, he would always listen to the inlet pipe and outlet pipe to ensure that water was flowing through the pump (T.28). It was the plaintiff’s contention that the activity of placing his ear near to the inlet pipe would force him to stand on the sloping and broken ground next to the inlet pipe. The method suggested by Mr Hinkley did not involve such an activity.

40 I have concluded that although this issue goes to the plaintiff’s credit, it is something of a false issue insofar as liability is concerned. Whichever method was used to prime the pump, I am not convinced that there was ever any need to place one’s ear next to the inlet pipe. If water was flowing through the outlet pipe then as a matter of physics it must have been flowing through the inlet pipe. I am not persuaded that the plaintiff always placed his ear next to the inlet pipe as well as the outlet pipe after priming.

41 On the credit issue I am not satisfied that the plaintiff did receive any instruction from Mr Hinkley as to how to prime the pump. Mr Hinkley had no recollection. It is surprising that if such instruction had been given, the plaintiff made no mention of it either in chief or under cross-examination when a clear opportunity was available to do so. When recalled on this point, the plaintiff’s evidence did not persuade me that Mr Hinkley’s method of priming the pump had ever been explained to him. I formed a clear impression from the plaintiff’s evidence that when he commenced occupation of the premises because of his prior experience on his parents’ property, he considered that he knew how to prime such pumps and did not require or seek any assistance in doing so.

42 The plaintiff was the person who would prime the pump. Kellie had never performed that function. The plaintiff’s evidence was that it was his invariable practice to switch the pump on or prime it during daylight hours. If the pump had to be primed, it was not possible to hold a torch and properly carry out that activity at night. If the tank commenced overflowing at night, he would usually not turn off the pump until the next morning.

43 It was common ground that Mr Mitchell told the plaintiff that if he had any problems, he was to raise them with him or Mr Hinkley and not the real estate agents. The plaintiff’s evidence was that he had spoken to Mr Mitchell about the pump on dozens and dozens of occasions, at least fifty or more. The substance of those complaints was that he had to prime the pump on a frequent basis and the difficulties associated with that task. The plaintiff said that he made the observation to Mr Mitchell that the pump was in a dodgy position. Under cross-examination the following evidence was given:

44 The reference to a new pump in that last answer is a reference to evidence given by the plaintiff that in the course of conversations with Mr Mitchell concerning the pump, Mr Mitchell told the plaintiff that he had another pump in a shed, which was a self priming pump and that he would replace the old pump with it.

45 It was the evidence of Mr Mitchell that the plaintiff had only mentioned the pump once or twice. It seems to me that the true position lies somewhere between the evidence of Mr Mitchell and that of the plaintiff. I have no doubt that the plaintiff did complain to Mr Mitchell on a number of occasions about difficulties which he was experiencing in priming the pump, both as to the need to do so on a frequent basis and because the job itself was difficult. I am equally sure, however, that the number of complaints was considerably less than the fifty or more suggested by the plaintiff. I formed the view that both these witnesses tended to give evidence in such a way as they perceived would favour their case.

46 While I accept that the plaintiff did not in terms ever say to Mr Mitchell that he considered the priming of the pump to be dangerous, I do accept the plaintiff’s evidence that on one occasion he made an observation to Mr Mitchell to the effect that the pump was located in a dodgy position. Mr Mitchell agreed that a remark to this effect had been made:

…

47 It was suggested to Mr Mitchell that he must have understood the remark that the pump was too close to the bank to mean that there was some danger of falling down the embankment. Mr Mitchell denied that this was his understanding.

…

48 I do not accept that Mr Mitchell had no idea what the plaintiff meant when he referred to the pump being too close to the bank. The only reasonable interpretation of the comment, in the context in which it was made, was that the plaintiff was concerned to some extent about safety aspects of the pump being so close to the edge of the creek bank. This is despite the fact that the plaintiff did not in terms refer to safety. It is true that the plaintiff may also have had in mind the difficulty of priming the pump when it was in such a position but the use of the word “dodgy”, which I accept was used by the plaintiff, does import some concern for safety. In my opinion Mr Mitchell should have been on notice that the plaintiff had some concerns as to his safety because of the position of the pump.

49 I am not prepared to make a positive finding that the creek bank below the pump had eroded with time, but it seems likely that some erosion would have occurred. When that proposition was put to Mr Mitchell he responded in the following terms:

…

50 It was Mr Mitchell’s evidence that he had never promised the plaintiff that he would replace the existing pump. He agreed that he did have another pump in a shed on his property but that this pump was not self-priming and belonged to the previous owner, a Mrs Blow. Mr Mitchell agreed that he discussed that pump with the plaintiff, but in the context of “it would be nice to get that pump hooked up” (T.304) or “eventually I’ll get a new pump one day” (T.306). He denied that he had ever made any promise or commitment to replace the old pump.

51 In the course of argument it was submitted on behalf of the plaintiff that Mr Mitchell had deliberately led the plaintiff on by promising to replace the old pump when he had no such intention. I do not accept that as a correct characterisation of what took place. A conversation concerning a replacement pump clearly took place but I do not accept that any firm commitment to do so was made by Mr Mitchell. No motivation has been established for why Mr Mitchell would act in such a deliberately deceitful way.

52 A more accurate characterisation of Mr Mitchell’s approach to complaints about the pump is to be found in the following question and answer:

53 I gained the impression that Mr Mitchell regarded the need to prime the pump as a fact of life when living on a rural block. I believe that he was somewhat dismissive of the complaints of the plaintiff concerning difficulties associated with the priming of the pump and did not really turn his mind to the problem.

54 That he should have been aware of the potential risk of injury associated with the priming of the pump had he turned his mind to the question, emerged clearly from this exchange:

55 The plaintiff has little recollection of what he was doing on the day of the accident. Mr Hinkley was able to say that the plaintiff and his father-in-law were unloading posts on Mr Mitchell’s property at 1pm. The plaintiff’s father-in-law, Mr Bruce, gave evidence that they were still carrying out that activity between 3 and 3.30pm when he left. The plaintiff’s movements between that time and when he was found by his wife at approximately 10 pm are not known except that he must have been lying in the creek bed for some hours before his wife found him.

56 The plaintiff’s evidence on this subject is as follows:

…

57 There was evidence from Kellie Butler that when she arrived home at approximately 9.45pm the dogs were loose. The water tank was overflowing. The lights were on in the house and there was a fire lit in the barbeque. That latter observation was confirmed by Mr Hinkley who described a large log which was well alight in the barbeque which was a cut down 44 gallon drum on its side on welded legs. Some rissoles, which Mrs Butler had made the night before, were sitting on the bench and there were some vegetables chopped up prepared to be cooked. Again this latter observation was confirmed by Mr Hinkley whose evidence was:

58 The evidence of Kellie Butler and Mr Hinkley was that the plaintiff was found in the creek bed almost directly below the pump shed. When Kellie found the plaintiff, the dogs were standing around him.

59 Mrs Butler ran back to the house, telephoned the Hinkleys and then telephoned an ambulance. Mrs Hinkley telephoned the SES. The plaintiff was not responsive to attempts to rouse him. It was necessary for the SES to set up a tripod and pulley system in order to winch the plaintiff from the creek bed so that he could be placed in the ambulance and then taken to hospital.

60 It was submitted by the defendants that at the time of his fall the plaintiff was intoxicated and that this had caused, or contributed to, the fall. The evidence of Mr Hinkley was that when he left the plaintiff and his father-in-law at about 1pm on the day of the accident, they appeared to be drinking beer. He was unable to say how much. Mr Hinkley observed a longneck beer bottle next to the barbeque on the night of the accident and an empty stubby in the pump house when he went to the plaintiff’s assistance. Mrs Hinckley, who was a registered nurse, smelled alcohol on the plaintiff’s breath and noticed bubbles coming from his mouth when he was being removed from the creek bed.

61 On the other hand, the Wollongong Hospital notes indicated a negative result for “alcohol on breath”, and a negative result for alcohol having been consumed in the preceding twelve hours. Counsel for the defendants identified some inaccuracies in the Wollongong Hospital notes. I was asked to infer that there was a strong likelihood that the notes were incorrect when they recorded the absence of alcohol on the plaintiff’s breath on admission.

62 Even taking the evidence referred to by the defendants at its highest, I am not persuaded that alcohol played any part in the plaintiff’s accident. There was no evidence as to whether the beer bottle observed near the barbeque was empty or full, nor that anything had been consumed from it on the night of the accident. There was no evidence that the empty stubby observed in the pump shed had been consumed on the night of the accident. The evidence of Mr Hinkley goes no further than to establish that at approximately 1pm after performing heavy work, the plaintiff and his father-in-law consumed some beer. The evidence of Mrs Hinkley concerning the smell of alcohol on the plaintiff’s breath goes no further than to establish that he had consumed some alcohol, probably beer, before the accident. The observation of bubbles coming from the plaintiff’s mouth is quite neutral.

63 The plaintiff was admitted to the Wollongong Hospital early on 3 May 2001 and discharged on 10 May 2001. The plaintiff was complaining of significant pain in the right hip, cervical spine and low back. He had suffered a head injury. He required large doses of opioids for his pain. On discharge he was suffering from significant pain in his lower back and over the sacro-iliac joint regions. He had retrograde amnesia for the day of the accident and post traumatic amnesia for at least 7 days following.

64 After discharge the plaintiff was able to do very little for himself. He had difficulty in mobilising. He was in considerable pain. Assistance was provided to him by his wife and his mother. The need for substantial assistance in the daily activities of life continued for about six months. Because of his head injury, he lost his driver’s licence. He was no longer able to conduct his business. During that time he received treatment from Dr Rajoram, a general practitioner, Dr Cossetto, an orthopaedic surgeon and Ms Musico, a psychologist from the Illawarra Area Health Service.

65 At the end of October 2001 the plaintiff and his wife left the leased premises and moved to Dubbo. By that time the plaintiff was able to do most things for himself, but still required some assistance. He had regained his driver’s licence in late 2001. In 2002 he enrolled in a course to qualify him as a primary school teacher at the Charles Sturt University. He completed a year of that course, but failed all of the exams. His evidence was that he was unable to understand the concepts in the course, had memory problems and was unable to get his assignments in on time. I will deal with that and the plaintiff’s other health issues more fully when dealing with the question of damages.

66 Before the accident the plaintiff owned approximately 100 acres of land in the Dubbo area. That is where the plaintiff and his wife moved to. They live on the property in a caravan which has an annex. The plaintiff’s wife was working at the time of the accident and continued to work until May 2003. On that date she experienced some form of breakdown and ceased work. She resumed work some four months later on a part-time basis and continues to perform part-time work at the present time. That work requires her to spend four days away from the plaintiff every fortnight in Cobar.

67 The plaintiff has not engaged in any remunerative work since the date of the accident. In 2004 the plaintiff commenced a course in agriculture at the Dubbo Tafe. The course required attendance once per week for four hours. The course started in March and finished at the end of the year. The plaintiff obtained a certificate in agriculture.

Liability

68 Although the plaintiff at all times carried the onus of establishing liability, it is convenient to deal with a preliminary point raised by the defendants. The defendants submitted that because of the absence of evidence as to what caused the plaintiff to fall, it was not possible for the court to find that liability had been established. To do so would involve speculation. For the same reason, it was submitted, the Court could not find that the plaintiff had established that any fault on the part of the defendants was causative of his injury.

69 The defendants submitted that there were scenarios available which offered explanations for the plaintiff’s fall which were not consistent with negligence, but were just as likely to have occurred as the scenario suggested by the plaintiff, ie that he slipped or tripped while performing some function associated with priming the pump. The scenarios suggested were:

70 I have already rejected the submission that the plaintiff was adversely affected by alcohol at the time of the fall. The suggestion that his dogs were in some way involved in the fall is speculative and not supported by any evidence. Those scenarios can be readily dismissed.

71 In relation to the scenario that the plaintiff went to the pump shed when it was dark, the defendants relied upon the plaintiff’s evidence that it was his invariable practice to turn the pump on or prime it during daylight. The defendants submitted that this occurred on the day of the accident and the plaintiff thereafter returned to the old house. He then prepared vegetables, laid out the rissoles, lit the barbecue and for some reason not known, went back to the pump shed during darkness and fell in circumstances which will never be known.

72 It seems to me that this scenario also involves a significant amount of speculation, rather than inferences which can be properly drawn from known facts. The fact that the dogs were still loose does not support this scenario.

73 The plaintiff’s case was put in this way. He was found directly below the pump shed. It can be inferred, therefore, that he was engaged in a pump related activity when he fell. He must have successfully primed the pump at a time more than four hours before his wife discovered him at 10pm, because when she arrived at the house the tank was overflowing. This conformed with the plaintiff’s recollection of standing over the pump at dusk and removing his jumper at that time. The fact that vegetables were in the pot, the barbeque was lit and rissoles were laid out is equally consistent with the plaintiff having performed those tasks before he realised that there was no water as with him having done so after priming the pump.

74 The court was asked to infer that following the actual priming of the pump, something occurred either by way of a trip or a slip, which was directly related to that activity. It was submitted that following the priming of the pump, it was necessary to turn on the pump by means of the switch in the pump shed and to listen at the outlet pipe and possibly the inlet pipe to ensure that water was flowing through the pump. The plaintiff could have tripped or slipped during one of those activities. Alternatively, it was suggested that the plaintiff could have simply tripped or slipped whilst moving away from the pump given the rough and sloping nature of the terrain and the fact that the ground around the pump would inevitably have been wet and slippery.

75 I accept the submission put on behalf of the plaintiff. In my opinion the inferences which the plaintiff suggests should be drawn from the evidence are not only open but seem to represent the most likely sequence of events. Just because the plaintiff cannot describe the actual mechanism of his fall does not mean it is not possible for him to establish his case. I accept the plaintiff’s evidence that his last recollection before his accident was of standing over the pump at about dusk removing his jumper. That evidence together with where the plaintiff was found and the fact that the pump had clearly been primed at some time before 6pm, all support the inference that he either tripped or slipped within a very short period of time after he had successfully primed the pump whilst he was positioned close to the pump and pump shed.

76 On the alternative scenarios, the only one which carries any credibility is that for some unknown reason the plaintiff returned to the area of the pump and pump shed some time after he had primed the pump and that it was darkness and lack of visibility which caused the fall.

77 As indicated, not only is there little evidence to support that scenario but it is contrary to the plaintiff’s evidence that he would not go near the pump or pump shed during darkness. It is also contrary to the evidence of the plaintiff and his wife (which was not challenged) that consistent with that practice, even if the tank commenced overflowing during the night, the plaintiff would not go to the pump shed to turn off the pump until morning.

78 Having accepted the plaintiff’s submission that the plaintiff’s fall occurred very soon after he had carried out the actual priming of the pump whilst he was still positioned in and about the pump, it seems to me that causation is also established. Applying the practical test for causation prescribed by March v E and MA Stramare Pty Ltd (1991) 171 CLR 506 it seems clear that the plaintiff’s fall was due in part to the rough and sloping terrain combined with the wet and slippery ground conditions. It was the priming activity which caused water to flow onto the ground around the pump thereby making it wet and slippery, and it was only the need to prime the pump which caused the plaintiff to be in that location. I find that causation has been established.

79 That does not end the matter. The question of a landlord’s liability to a tenant in tort is a developing area of law. The leading case remains Jones v Bartlett and Another (2000) 205 CLR 166. That case while authoritatively establishing that a landlord does owe a duty of care to a tenant of domestic premises left open, depending upon the facts of each individual case, what the content of that duty of care should be.

80 Sakoua v Williams [2005] NSWCA 405 per Mason P provides a useful summary of the law as it has developed and been interpreted since Jones v Bartlett:

“3 Jones v Bartlett (2000) 205 CLR 166, [2000] HCA 56 established that the lessor of residential premises owes a duty of care to an incoming tenant (and by extension to the tenant’s visitors). The scope of that duty was not, however, formulated in identical terms by their Honours.

4 The Court discussed the content of the duty, with respect to the condition of the premises at the inception of the letting. Three justices in the majority favoured a duty expressed in terms of one to take reasonable care to avoid foreseeable risk of injury, leaving the practical content of the duty to be governed by the circumstances of the case (per Gleeson CJ at 184[56]-[58], per Gummow and Hayne JJ at 213[168]-[169]).

5 Two justices in the majority favoured slightly narrower formulations of the duty, referring to a duty to put and keep the premises in a state of safe repair (per Gaudron J at 192[88]-[93]), or to take reasonable care to avoid foreseeable risk of injury from defects of which the landlord was on notice or of which (by appropriate inspection) the landlord would reasonably become aware (per Kirby J at 240[252]). Callinan J expressed no opinion beyond the tentative statement that if any duty were owed, a matter of which he was far from convinced, he would define it as no more than a duty to provide, at the inception of the tenancy, habitable premises (at 252[289]).

6 McHugh J dissented, for reasons to which I refer below.

8 On my reading, none of the justices in the majority went so far as to take any duty to repair beyond requiring the lessor to address defects of which he or she was aware, or ought to be aware. And each of their Honours defined “defect” in this context to mean something more than a condition capable of causing injury (see Tina Cockburn, “Duty of Care of Landlords of Residential Premises” (2001) 20 U Tas LR 205 esp at 223-6; Sharon Erbacher, “Unsafe leased residential premises: A landlord’s liability in negligence to injured occupants” (2002) 13 ILJ 134).

Ahluwalia v Robinson

Jones v Bartlett

81 Applying those principles to the facts of this case, it was foreseeable that a person might trip or slip so as to fall while priming this pump. It was foreseeable because of the closeness of the pump to the edge of the embankment, the sloping and rough nature of the terrain and the fact that the priming operation would inevitably result in the ground surrounding the pump becoming wet and slippery because of the spillage of water. This fact was acknowledged by Mr Mitchell [54].

82 It was not just a bare possibility but it seems to me that there was a high likelihood of such a fall occurring. I appreciate that during the twenty years that the defendants had owned the property no such fall had occurred. During that twenty years the premises had been occupied by a long-term tenant for most of the time and for about a year by the persons whose advertisement the plaintiff had seen in the post office. That is not decisive because the situation in relation to the pump and the bank was not static over that period.

83 It is clear from the evidence of Mr Hinkley that this was an old pump and that it required priming more often than it should have, ie two-thirds of the time that it was turned on. There was also the possibility that over that twenty year period the bank of the creek had eroded somewhat thereby reducing the distance between the pump shed and the edge of the bank.

84 Leaving aside those matters, however, the photographs persuade me that even for a person taking proper care for him or herself while priming the pump, there remained a real risk of falling into the creek. The more often the priming task had to be performed, the greater the risk of a fall occurring. There was no issue that this dangerous situation existed at the commencement of the tenancy.

85 The fact that the risk of falling down the embankment was obvious does not assist the defendants. For the house to be habitable, the plaintiff and his wife had to have access to a regular supply of water. This meant that the plaintiff had no choice but to go to the pump shed once or twice a week in order to prime the pump. On each of those occasions there existed a real risk of a fall, even for a person taking care for his or her safety.

86 Although the plaintiff did not in terms make any complaint to Mr Mitchell concerning safety aspects of priming the pump, he did bring to Mr Mitchell’s attention that the pump was in “a dodgy position”. Even if he had not otherwise given consideration to that question, this put Mr Mitchell on notice that there was a potential safety problem when priming the pump. Even if the plaintiff had not raised this issue with Mr Mitchell, a brief visit by him to the pump shed before or at the time that the lease was entered into would have revealed the real risk of injury for a person priming the pump in that location.

87 Mr Mitchell’s response was to do nothing. Was that a reasonable response in the circumstances? Applying the approach in Wyong Shire Council v Shirt (1980) 146 CLR 40 one has to assess the reasonableness of Mr Mitchell’s response by reference to the magnitude of the risk, the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which Mr Mitchell might have had.

88 The magnitude of the risk was significant. If a person fell into the creek it was most likely that such a person would suffer serious injuries. As indicated, I am of the opinion that there was quite a high likelihood of such a fall occurring. There seems to have been little expense, difficulty or inconvenience associated with alleviating the risk.

89 In relation to that latter consideration, the only alternative which was costed was moving the pump a couple of metres away from the bank. This was a relatively simple task and the evidence was that it would cost no more than $1,000. Two other alternatives suggested by Dr Adams also seem to be reasonable, although they were not costed, ie the construction of a safety fence next to the pump between the pump and the bank and reconfiguring the shed so that the opening to the pump was on the side opposite to the creek. There were no persuasive reasons offered by Mr Mitchell as to why those alternatives could not be implemented. His excuses concerning the hundred year flood or that the efficiency of the pump might be adversely affected were not persuasive.

90 The pump and its location would not constitute a “defect” in the classic sense in that it operated correctly. The need to frequently prime it, however, brought about a dangerous situation of which the defendants knew or should have known. The location of the pump and the need to regularly prime it were not merely capable of causing injury, but were likely to do so. In that circumstance a reasonable landlord in the position of the defendants was required to take alleviating action.

91 The conclusion which I have reached is that there was a foreseeable risk of injury to a tenant in the position of the plaintiff at the time when the lease was entered into and that reasonable care required that action be taken to alleviate that risk. The simplest response was to move the pump some metres away from the creek bank.

92 The defendants pleaded contributory negligence. The case was, however, run on the basis of negligence or no negligence. Of the matters raised in argument the only basis for any finding of contributory negligence was if the plaintiff suffered his injuries by attempting to prime the pump at night, or if he had been adversely affected by alcohol when attempting to do so. I have rejected both those scenarios. It follows that I find that contributory negligence has not been established by the defendants.

Injuries and disabilities

93 I have found it difficult to identify with any precision the injuries suffered by the plaintiff. The discharge summary from Wollongong Hospital refers to fractures of the right and left femoral shaft, but no subsequent medical report makes any reference to this. No other fractures were identified by the hospital. I am not satisfied that the plaintiff suffered any fractures in his fall. CT scans arranged by Dr Cossetto in May 2001, showed no bony abnormality or significant ligamentous injury to the right hip and femur and sacro-iliac joint. A cranial, facial, cervical, spinal and abdominal CT scan revealed no significant post traumatic abnormalities. Clearly, however, the plaintiff must have suffered significant musculo ligamentous damage as a result of the fall. He appears to have been in considerable pain while in hospital.

94 Given those findings on x-ray, it is difficult to understand where Dr Gordon who examined the plaintiff on 29 April 2002, obtained his information that the plaintiff had suffered a fractured pelvis, a fractured right femur and a crush fracture of the spine in the fall. This understanding by Dr Gordon would seem to have been based on what he was told by the plaintiff and is incorrect. When the plaintiff consulted Dr Gordon he was complaining of low back pain and pain going into the right leg. The right leg on occasions became numb. Those complaints accord with the plaintiff’s evidence in these proceedings. Dr Gordon found the plaintiff’s symptoms difficult to explain on the basis of a radiculopathy and he wondered whether the plaintiff may have suffered an injury to the lumbo-sacral plexus.

95 Ultimately Dr Gordon was not able to reach a firm diagnosis. He thought the EMG studies suggested a chronic neurogenic disorder of the right leg, involving the L4, L5 and S1 derived fibres associated with the plexus rather than the nerve root level.

96 The diagnoses of Drs Buckley and Jenssen are of little assistance since both these doctors are rehabilitation experts and each was relying upon medical reports of other specialists in reaching their conclusion.

97 Dr Teychenne in his report of 8 May 2005 referred to an MRI scan of the lumbo-sacral spine showing a small right posterior paracentral disc protrusion at the L5/S1 level with a minor mass effect on the proximal right S1 nerve root. The MRI scan also showed some moderate dehydration of the L2/3, L3/4 and L5/S1 discs. A copy of that report was, however, not tendered by anyone in the case. Such findings are equally consistent with disc degeneration as with trauma.

98 Dr Teychenne arranged for a further EMG nerve conduction study to be carried out in relation to the plaintiff’s legs. He was of the opinion that the findings of that examination were consistent with compression of the L4/5 and S1 nerve roots within the lumbar spine. He thought the plaintiff had persisting L4/5 and S1 nerve root damage which was secondary to pathology within the lumbar spine.

99 The plaintiff was seen on behalf of the defendants by Dr Brian Stephenson, an orthopaedic surgeon, in December 2003. Relying upon the discharge summary from the Wollongong Hospital and on the reports of Dr Cossetto, Dr Stephenson was of the opinion that there was little wrong with the plaintiff from an orthopaedic and musculo-skeletal point of view and that by the date of the examination he should have recovered from the physical effects of his fall.

100 The plaintiff was seen by Dr Mellick, a consultant neurologist, on behalf of the defendants on 21 March 2005. Dr Mellick had available to him all of the examinations, including CT scans and MRI scans of his back, EMG test results and bone scan test results. On examination Dr Mellick found no abnormality of gait or of leg or back movements. In particular he noted the plaintiff was able to assume the seated position on the examination couch with hips flexed and knees extended, and appeared in no discomfort in that position. Straight leg raising was, however, limited to less than five degrees on the right and to approximately twenty five degrees on the left. There was no paravertebral muscle spasm. The plaintiff explained the limited spinal movements on the basis that he was fearful of producing pain.

101 Dr Mellick made no specific comment in relation to the MRI scan findings, but said the following in relation to the EMG tests:

“Although the EMG findings reveal evidence of a plexopathy, there is no clinical evidence currently of plexopathy. Accordingly the changes which were noted when that electro physiological test was done in July 2002 might have been of organic origin, however those features are now not associated with any collateral supporting evidence of clinical abnormalities involving the L4, L5 or S1 innervated musculature. Any past nerve fusion in the pelvic plexus should therefore be regarded to have fully resolved.”

102 It seems to me that there is some force in the assessment by Doctors Stephenson and Mellick. Doctor Cassetto could find little objectively wrong with the plaintiff in the months following the accident. The assessments of Dr Gordon and Dr Teychenne depend very much upon EMG testing and bone scans, which at best produce equivocal results. The contrast between the plaintiff’s limited straight leg raise and his ability to sit with hips flexed and knees extended without discomfort when examined by Dr Mellick is rather stark.

103 On the other hand, I gained a distinct impression at the end of the second day of hearing (T.130) that the plaintiff was genuinely in pain and was not doing himself justice when answering questions while under cross-examination. Having said that I also formed the view that some of the plaintiff’s presentation in February after the adjournment, which consisted of frequently getting up and down in court, walking about and wincing in pain were rather histrionic and did not genuinely reflect his physical condition.

104 Another matter which needs to be kept in mind is that the plaintiff did have some pre-existing back problems. Although these did not prevent him from engaging in heavy labouring work up to the time of the accident, it is clear that his back was from time to time symptomatic. It is somewhat doubtful, in my opinion, that the plaintiff would have been able to continue with heavy labouring work to age 65, even had he not been injured.

105 The conclusion which I have reached is that the plaintiff did suffer injuries in the nature of a plexopathy, such as were assessed by Dr Gordon and to a more limited extent, by Dr Mellick. Contrary to the opinion of Dr Mellick, however, I accept that the effects of that plexopathy are continuing and that the plaintiff does continue to suffer low back pain with some effect on his right leg, but not at the level of the intense pain which the plaintiff suggested in his evidence.

106 It follows that I reject the assessment of Dr Teychenne that the plaintiff suffers from compression of the L4/5 and S1 nerve roots. This was a diagnosis rejected by Dr Gordon and it is not consistent with either the CT or MRI scans of the plaintiff’s low back.

107 The plaintiff also complained of erectile dysfunction following the injury. In February 2003 he told Dr O’Neill, a urological surgeon, that he had not had a normal erection since being discharged from hospital. On occasions Viagra worked, but on other occasions it did not. The plaintiff told Dr O’Neill that his main problem was a complete lack of desire.

108 It was the opinion of Dr O’Neill that the cause of the plaintiff’s problem was not organic, but was psychogenic. He recommended consultations with a specialist psychosexual counsellor. That has not occurred. Apart from the report of Dr O’Neill there is no other information on this topic. I have concluded that the plaintiff has suffered some erectile dysfunction and that this is related to the accident. In accordance with the assessment of Dr O’Neill I am of the opinion that this problem has a psychological basis.

Did the plaintiff suffer brain injury?

109 The most contentious medical issue was whether or not the plaintiff had suffered brain damage. The plaintiff’s submission was that he suffered from both psychological problems (depression, anxiety and post traumatic stress disorder) and from traumatic brain injury of such severity as to significantly affect his ability to function. Short-term memory loss was a significant feature.

110 On behalf of the defendants, it was submitted that the plaintiff had not suffered brain damage but that matters such as memory loss and lack of anger control were either feigned or psychologically rather than organically based. Reliance was placed upon the neuropsychological reports which indicated that the plaintiff’s performance had deteriorated since the first testing by Ms Musico three months after the accident. This, it was submitted, was inconsistent with an organic brain injury which tended to either remain static or to improve.

111 There was no dispute that the plaintiff had suffered a head injury or that he had suffered a degree of retrograde amnesia in that he could not remember how the accident occurred and what he was doing for some time before his fall. He was unconscious for some hours and experienced two seizures at the accident site. There also seems to have been some post traumatic amnesia, although the exact length is not clear. I am of the opinion that it was in the order of seven days which is the history recorded by doctors who saw him in 2001. The history of twenty one days PTA is one which has developed in later years. His Glasgow Coma Scale on admission was 15 (which is normal). A CT scan of the brain taken at the Wollongong Hospital showed no abnormality.

112 On 7 and 29 August 2001 the plaintiff underwent neuropsychological testing by Ms Musico. The results of those tests indicated that his rate of learning was slow for his age and that his visual memory was below average for immediate recall. His speed of processing information on a number of tasks was also reduced. Otherwise his response appeared to be normal, particularly in relation to immediate auditory memory. Ms Musico thought the plaintiff’s memory functioning was sufficient to enable him to engage in study in 2002, although she recommended that he only do a few subjects in a year while he adjusted to the memory deficit which she found. She thought that further recovery was to be expected. Attached to her report were the test results which the plaintiff achieved at that time.

113 The evidence of the plaintiff’s wife was that following the accident there had been behavioural changes. She identified self-centred behaviour, inflexible thinking and the inability to consider the impact of his behaviour on their relationship. He lost his temper very easily. She also gave evidence of problems with concentration and memory, particularly in relation to the plaintiff losing things. She said that the plaintiff had lost contact with most of his friends.

114 The plaintiff underwent further neuropsychological testing by Ms Alexandra Walker on 17 October 2003. Ms Walker had available to her the test results obtained by Ms Musico in August 2001. Ms Walker noted in relation to intellectual functioning that the plaintiff “surprisingly” performed at a much lower level on a visuospatial problem solving task of putting puzzles together. In relation to attention and information processing, there had been a considerable improvement. In respect of frontal and executive function, his capacities were assessed as generally being intact. The test results for memory were variable and “below expectation”. He showed an apparent decline in the capacity to retain information over time on most of the memory tests that he was given. Ms Walker attributed the reduction in those tests directed at intellectual functioning and memory as due to moderate levels of depression and anxiety which she detected in him.

115 The plaintiff was tested by Dr Arthur Shores, consultant neuropsychologist, at the request of his solicitors on 21 January 2004. Dr Shores carried out a number of tests to assess whether the plaintiff was making a genuine effort to complete the tests. In four out of the five tests administered to him, Dr Shores concluded that the plaintiff was not attempting to do his best. Accordingly Dr Shores thought that he would need to proceed cautiously when interpreting the other neuropsychological tests undertaken by the plaintiff on this occasion.

116 In relation to the initial testing conducted by Ms Musico, Dr Shores was of the opinion that it revealed “only subtle signs of cognitive impairment”. He noted that Ms Musico had found no evidence of mood or anxiety disorder. In contrast the plaintiff had performed very poorly on tests of memory function and had reported extremely severe levels of psychological distress when tested by him. Dr Shores concluded that the plaintiff’s condition appeared to be much worse now than when tested by Ms Musico. Like Ms Walker, Dr Shores was of the opinion that this was most unusual in brain injury patients. He thought the explanation for the poor performance was lack of full effort on the part of the plaintiff, which could be explained by psychological distress.

117 The strongest evidence for the plaintiff having suffered organic brain damage comes from the reports and evidence of Dr Bell, psychiatrist. He saw the plaintiff in March 2004 and April 2005 and gave evidence in the proceedings. The effect of his evidence rose no higher than to establish that the fall was capable of causing organic brain injury. When setting out his reasons for concluding that the plaintiff had suffered brain injury, Dr Bell referred to deficiencies in the early clinical notes and engaged in a process of speculation as to what would have been found had more extensive examinations taken place. He entirely disregarded the neuropsychological test results. In particular he disregarded the extraordinary unanimity in opinion of the neuropsycholigists to the effect that the plaintiff was not doing his best in the tests conducted by Ms Walker, Dr Shores and Dr Roberts. I do not accept the opinion of Dr Bell that the plaintiff sustained severe brain damage.

118 I do, however, accept Dr Bell’s rejection of PTSD as a possible diagnosis of the plaintiff’s psychological problems. An essential ingredient of PTSD is a persistent involuntary recollection of the life threatening or traumatic event. It is a contradiction in terms to offer PTSD as a diagnosis where the particular person has no recollection of the traumatic event.

119 The plaintiff also relied upon a report of Mr Anthony, psychologist, dated 12 July 2005. There are a number of problems with that report. The most obvious is that Mr Anthony was not provided with any of the earlier neuropsychological test results. He was accordingly dependent entirely upon the honesty and accuracy of the plaintiff when undertaking the tests. Also Mr Anthony did not attempt to validate the genuineness of the plaintiff’s effort, as did Dr Shores and Dr Roberts.

120 Doctor Roberts in her report of 17 February 2006 carefully analysed the report of Mr Anthony (report pp 17-22) and identified deficiencies in it of a technical kind insofar as the tests were concerned. Dr Roberts also set out in table form a comparison of the test results obtained by Mr Anthony with those obtained by the other psychologist who had examined the plaintiff, ie Ms Musico, Ms Walker, Dr Shores and herself. I accept the conclusions of Dr Roberts in relation to the report of Mr Anthony and I find the report to be of little assistance.

121 By and large the medical evidence adduced on behalf of the defendants does not support the plaintiff having suffered a brain injury.

122 Doctor Blum, a neurosurgeon, who saw the plaintiff in December 2003 noted that the plaintiff had suffered a concussive head injury and on the basis of his history, thought that he had suffered a moderate degree of brain injury.

123 Doctor Potter, psychiatrist, thought the plaintiff was suffering from an adjustment disorder with depression and anxiety but not brain damage.

124 Doctor Roberts, clinical psychologist, carried out a full range of neuropsychological tests in July 2004. She took a much less charitable view of the results than did Ms Walker and Dr Shores. She was of the opinion that the plaintiff was deliberately seeking to achieve a low result so as to create a false impression as to the level of his disability. Doctor Roberts, who also gave evidence in the proceedings, was of the opinion that the plaintiff had not suffered any cognitive defect and doubted whether there were any genuine memory or concentration problems.

125 Doctor Mellick, a consultant neurologist, also gave evidence in the proceedings. Although he was sceptical as to the conclusiveness of neuropsychological testing as a means of determining the existence of brain damage, he did note that none of the tests (excluding Mr Anthony) pointed to the presence or possibility of “severe brain injury”. The basis for Dr Mellick’s opinion was the absence of any objective signs of brain damage in the plaintiff. To the extent that the plaintiff’s complaints were genuine, Dr Mellick was of the opinion that they could be explained on psychological grounds.

126 The plaintiff’s performance when giving evidence over a number of days did not persuade me that he was suffering from brain damage. I also saw no evidence of memory or concentration difficulties. I did see evidence of some personality problems, particularly relating to anger control. This was evidenced when the plaintiff was being cross-examined.

127 The conclusion I have reached is that if the plaintiff did suffer brain damage as a result of the fall, its effects had largely resolved by the time he saw Ms Musico and had certainly resolved by the time he saw Dr Shores. I do accept that for a number of years following the accident, particularly during 2003 and 2004, the plaintiff experienced significant psychological difficulties, which were directly related to the accident. These manifested themselves in outbursts of temper and the personality difficulties identified by his wife. By the time of the trial, these psychological difficulties had significantly improved.

Assessment of damages

128 The calculation of damages is governed by the Civil Liability Act 2002. The plaintiff was born on 6 July 1972 and was therefore 29 when he was injured. It was agreed between the parties that the plaintiff’s life expectancy is 46 years, which under the 5% tables gives a multiplier of 956. As of the date of trial, it was 31.35 years until the plaintiff would turn 65, which under the 5% tables give a multiplier of 838.

Non-economic loss

129 As indicated in the analysis of injuries and disabilities, I am of the opinion that the plaintiff has a continuing problem with his low back and right leg in the nature of a plexopathy. In the first couple of years following the accident I accept that the plaintiff did suffer intense pain as a result of this condition. While I do not accept that the plaintiff’s present condition is as severe as he sought to persuade the Court, I do accept that it is continuing and that it will continue for the rest of his life. He is only a young man and pain of that kind even though with the passage of time he will develop strategies to better deal with it remains a very significant detriment which will affect his amenity and enjoyment of life.

130 He has suffered severe psychological trauma, although again I am of the opinion that this had greatly improved as of the date of trial. What I found disturbing in relation to this aspect of the plaintiff’s claim was what I perceived to be an attempt on the part of the plaintiff to exaggerate his disabilities, particularly in relation to memory problems and concentration problems. Nevertheless I am prepared to accept that anyone who has permanently lost his ability to fully engage in physical work is likely to develop anxiety and depression from time to time.

131 Accordingly, taking those matters into account together with my assessment of the medical evidence, I would assess the plaintiff as entitled to damages for non-economic loss by reference to 32% of a most extreme case, ie $124,800.00

Out-of-pocket expenses

Past

132 This was agreed at $20,979.40. Of that amount, $7,235 was paid by the plaintiff. The plaintiff is therefore entitled to interest on the amount which he has paid. The parties agreed that the relevant interest rate under the Act was 5.91%. Applying that interest rate to the unpaid out-of-pocket expenses for 4.75 years, an amount of $2,031 is produced.

Future

133 The plaintiff claimed medication at a cost of $40 per week. This medication comprised Epilim to prevent seizures, Trammell or some other powerful analgesic such as Endone and Endep, Tryptanol or some similar medication for his psychological difficulties and Panadeine Forte. In view of my findings as to the plaintiff’s disabilities, I do not consider that level of analgesia to be reasonably necessary and certainly not for the rest of the plaintiff’s life. He does not seem to have had a seizure since the date of the accident and I would expect the Epilim to cease in due course. He will no doubt require some form of analgesic support, but not at the level he is said to be currently using it. He may need Tryptanol or some similar substance from time to time in the future, but not on a regular basis. Taking those matters into account, it seems to me that a figure of $20 per week is appropriate, ie $19,120.

134 The plaintiff claims for general practitioner review six times per year at $40 per visit for the next 46 years. There was no evidence from the plaintiff as to how often he currently sees a general practitioner. It can be inferred that it would have to be at least once every two months to obtain prescriptions for his medication. I have already found that his consumption of medication is likely to reduce in the future. Taking that into account and also my assessment of the plaintiff’s level of disability, it seems to me that over the next 46 years an average of four consultations per year rather than six is reasonable, ie $2,942.

135 The plaintiff claimed for counselling at $172 per month. The basis for this claim was the recommendation by Dr Jenssen in his report of 15 May 2003. What Dr Jenssen actually said was this:

“I am not sure how long he would require these counselling sessions but given his current psychological stresses perhaps for the next year or so he would benefit from regular counselling at least monthly.”

136 The plaintiff has claimed for twelve sessions of physiotherapy per year at $60 per session. This was also based on the recommendations of Dr Jenssen in his report of May 2003. In view of my assessment of the plaintiff’s level of disability, it seems to me that twelve sessions per year is excessive, but I do accept that he may well suffer periods of exacerbation of his back pain in the future, which will require physiotherapy from time to time. It seems to me that six sessions per year for the next 46 years would adequately cover that eventuality, ie $6,618.

137 A claim was made for $5,000 for pain management. This was based on the assessment of Dr Buckley in May 2004. To date the plaintiff does not appear to have gained any benefit from the use of pain management techniques. Nevertheless, pain does seem to be a problem for him despite what I perceive to be some exaggeration in his presentation. Accordingly I propose to allow the two attendances provided for by Dr Buckley, ie an initial attendance cost of $950 and a subsequent review cost of $536, a total of $1,486.

138 The plaintiff’s claim for access to heated swimming facilities by way of membership of a gym plus travel expenses of $200 per year was accepted by the defendants as reasonable. Accordingly I include in the plaintiff’s damages an amount of $14,340 to cover that claim.

139 In summary I award in favour of the plaintiff the following amounts in respect of future out-of-pockets:

Medication	$19,120.00
GP review	$ 2,942.00
Counselling	$ 4,000.00
Physiotherapy	$ 6,618.00
Pain management	$ 1,486.00
Heated swimming pool access	$14,340.00
Total	$48,506.00

Domestic Assistance

140 There is no claim for any paid care in relation to the past. The plaintiff’s claim was for 20 hours of unpaid assistance per week for the past. Reliance was placed upon the evidence of the plaintiff, his wife and his mother. The entitlement to damages for such services is covered by s15 of the Act, which relevantly provides:

“15(1) In this section “attendant care services” means any of the following:

“Gratuitous attendant care services” means attendant care services:

(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services, if the services are provided or are to be provided:

141 According to the Wollongong Hospital notes the plaintiff was ambulant when he was discharged on 10 May 2001. The hospital notes also suggest that he was able to carry out a number of basic self-care tasks for himself. Nevertheless I am satisfied by the evidence of the plaintiff’s mother and his wife, that he did require a significant amount of assistance in the first six months after his discharge from hospital. It seems to me 20 hours per week is reasonable for that period. I am not satisfied, however, that following that six months period he continued to require that level of assistance. That does not accord with contemporary medical material and does not accord with the nature of the injury suffered by the plaintiff. I do, however, accept that he would still have required some assistance and I assess that at 10 hours per week for a further six months. Thereafter I am not persuaded that there was a reasonable need for attendant care services to be provided to the plaintiff at a level of 6 hours or more per week. During that period until May 2003 the plaintiff’s wife continued to work. In late 2003 she again resumed work and spends four days away from home during which time the plaintiff appears to be able to adequately look after himself. I am satisfied from his presentation in court and from the medical material that he is fully able to look after himself. I am satisfied that if he were on his own, he could adequately perform housework, cooking and basic household repairs which did not require repetitive bending or heavy lifting.

142 In view of the findings which I have made in relation to loss of earning capacity, both past and future, there would be adequate time available to the plaintiff to perform whatever domestic tasks were necessary for him even allowing for the fact that he might have to perform those tasks more slowly because of his disability. To the extent that he has received attendant care services in the past, I find that any such services at the level of 6 hours or more per week after the initial 12 months were not reasonably necessary.

143 Accordingly I award in favour of the plaintiff $14,103 for past gratuitous attendant care services. The hourly rate which I have used is $18.08.

144 The plaintiff claimed 20 hours per week for future attendant care services. It follows from the above analysis that this claim is rejected. As indicated, to the extent that the plaintiff does require attendant care services in the future, I am of the opinion that this need will not amount to 6 hours or more per week. This includes any need for handyman services and the like.

Economic loss

Past economic loss

145 It was submitted on behalf of the plaintiff that uninjured the plaintiff would have been earning at the rate of $800-$1100 per week on the basis that his business was profitable and growing. If the Court were not prepared to accept that proposition, it was submitted that the Court should use average weekly earnings as the reference point for what the plaintiff would have earned uninjured. It was submitted that the plaintiff was totally incapacitated for all work for which he was suited.

146 When formulating economic loss one needs to have regard to two considerations. The first is the extent to which a plaintiff’s capacity to work has been reduced. The second is what use the plaintiff would have made of that capacity had he or she not been injured. Put another way, one has to have regard to what the plaintiff would have earned uninjured (Husher v Husher (1999) 197 CLR 138 at [6]-[8]. What the plaintiff did in the past will usually provide important guidance as to the plaintiff’s earning capacity and what economic capacities will probably flow from damage to that capacity.

147 The only time the plaintiff was making consistently high earnings was when he was employed by the Navy in the submarine service. Both before and after he joined the Navy he engaged in labouring tasks which of their nature are not particularly remunerative. Although the plaintiff’s business was reasonably successful, it could not be said that at the time when he was injured, he was making large sums of money.

148 The defendants tendered (exhibit 23) a report dated 6 December 2005 from Messrs Crispin and Jeffery, chartered accountants. That report analysed the earnings of the plaintiff’s business since he commenced it in early 2000. I was also provided with some profit and loss accounts prepared by the plaintiff’s wife in relation to the business. For the financial year that the plaintiff was operating his business until he was injured, he had a gross income of $25,400 before expenses and $13,653 after expenses. The profit and loss accounts indicated that work was increasing in the months leading up to the accident. The plaintiff’s gross earnings, after the deduction of expenses but before taxation in that period, were $315 per week and after taxation, $282 per week.

149 It was submitted on behalf of the plaintiff that because the amount of work which he was performing was increasing, that the Court should infer that had the plaintiff not been injured, the business would have increased to the level suggested in submissions or to a level which would have brought to the plaintiff average weekly earnings, ie between $861 and $1000 per week for the period 2001 – 2006. No basis for this submission was established other than the fact that the amount of work being performed by the plaintiff was increasing in the months leading up to the accident, that the plaintiff had shown he was a hard worker and that average weekly earnings would provide a proper guide for what he would have earned uninjured.

150 No evidence was called as to the availability of work in this area. It seems to me that performing contract labouring work in a rural area such as the Kangaroo Valley, is not a unique undertaking and that there would be competition from other sources. There is, of course a finite limit to the amount of work which one person can perform. Had the plaintiff sought to expand his business and employ other persons, other considerations apply which have both positive and negative features when calculating likely income. Other than the plaintiff’s actual earnings from the business, his case on economic loss was imprecise and vague.

151 There is another consideration. It is clear from the evidence that the plaintiff did not like working in the city and preferred a rural lifestyle. This was not only because of the nature of the life, but because he loved his dogs and he loved hunting with them. This was an activity which could not be performed in the city. It seems to me that the plaintiff had made a clear lifestyle choice when choosing to leave the city and live in a rural area. The downside of such a choice is that work is not as plentiful, nor is it as well paid in such rural areas.

152 I do not accept the submission made on behalf of the defendants that the plaintiff’s economic loss, both past and future, ought be calculated only by reference to the actual earnings of the business in the brief period that it was operating. I am satisfied from the increased work which the plaintiff was performing in the months leading up to the accident that the business would have expanded beyond what it was earning at that time. I am not prepared to find that the business would have been so successful as to enable the plaintiff to earn somewhere between $800 and $1100 after expenses. It seems to me that uninjured the plaintiff’s business may well have reached a stage where he was earning $600 per week after expenses, ie that it would have been twice as successful as it was at the time when he was injured. After tax the earnings of the business would have been $490 per week. I find that uninjured the plaintiff would have reached a stage when he was earning $490 net per week from his business.

153 The next question is the extent to which the plaintiff’s capacity to work has been damaged. As indicated the plaintiff’s case was that he was totally incapacitated for all work. The defendants submitted that the plaintiff was not totally incapacitated, but that he could do clerical work and in particular could do work involving a computer.

154 In relation to that latter submission, the defendants relied upon the evidence of Mr Rowe, an investigator who had interviewed the plaintiff in February 2002. Mr Rowe’s evidence was that when the plaintiff was asked how he spent his day, the plaintiff told him that he watched videos and that he spent approximately 2 hours per day on the computer, mostly on the internet.

155 This conversation was denied by the plaintiff. He asserted that he spent very little time using a computer and was not able to spend as long as 2 hours in such an activity. It would cause him too much pain to do so.

156 I found Mr Rowe a convincing and believable witness and I do not accept the plaintiff when he says that such a conversation did not take place. Having found that such a conversation took place, I also accept that the plaintiff is capable of spending at least 2 hours per day working on a computer.

157 Even though I have found that the plaintiff does have some computer skills, and that his back and right leg disabilities are not as great as he would have the Court believe, this does not mean that the plaintiff is necessarily employable on the open labour market. I accept that the plaintiff does have a level of continuing pain in relation to his low back and right leg. I am satisfied that his disability is such that he will never again be able to engage in heavy labouring work and work involving bending and lifting and work which will place a strain upon his low back and sacroiliac area.

158 This in effect disqualifies the plaintiff from most work in a rural area, which is his lifestyle of choice. The very limited nature of the work suggested by the Vocational Capacity Centre in its report of July 2005 confirms that. The sort of employments identified as being within the plaintiff’s capacity were voluntary clerical, product grader, industrial spray painter, betting agency counter clerk and service station attendant.

159 The plaintiff was very definite in his evidence that he disliked inside work, was not qualified to perform clerical work and would be very unhappy to do so. He also opined that if he were performing such work he would need to get up and down on a frequent basis and may need to rest if his back became stiff. I do not think that clerical work of any kind would be a suitable employment opinion for the plaintiff even if he could perform it on a fulltime basis, which I doubt.

160 The plaintiff has his driver’s licence and has been driving since the end of 2001. He still walks his dogs. I believe he is capable of light maintenance work about the house. He does have some computer skills. Accordingly, I am of the opinion that even though the plaintiff is not fit for fulltime work on the open labour market in rural areas such as Dubbo, he would be fit from time to time to perform some work but only on a part-time basis. Fulltime work will, however, be permanently beyond his abilities.

161 As indicated by the medical material, and my findings in relation to the plaintiff’s back injury, his recovery was gradual until it reached the state which I have described above. It is difficult to determine when it could be said that the plaintiff had a residual earning capacity. Doing the best I can, I find that the plaintiff’s back condition had stabilised so that he had a residual earning capacity as of January 2004. I assess that residual earning capacity from 1 January 2004 at $100 net per week.

162 In relation to the plaintiff’s earnings uninjured, it would have taken the plaintiff’s business some time to build up to a level which would have enabled him to earn from it $490 net per week. Although this is of necessity somewhat arbitrary, I would assess the plaintiff’s earnings from his business if he had not been injured as follows:

163 On the basis of those findings I assess the plaintiff’s past economic loss at $94,740. Interest on past economic loss is $11,899.00.

Future loss of earning capacity

164 In terms of s13 of the Civil Liability Act I find that uninjured the plaintiff would have continued his farm-labouring business and that the business would have been sufficiently successful so as to enable the plaintiff to earn from it approximately double the amount which he was earning at the time that he was injured, ie $490 net per week. I find that the likelihood of that occurring was extremely high and with one exception I do not propose to apply any further discount in relation to it other than the conventional discount for vicissitudes of 15%.

165 As indicated, in relation to the plaintiff’s residual earning capacity, I find that in the future he would be able to earn from part time work an amount which would average $100 per week. It follows that I find that he has suffered a continuing economic loss for the future of $390 net per week.

166 I have referred to the question of vicissitudes in the context of s13 of the Civil Liability Act. I have to also have regard to the question of vicissitudes when considering the effect of the plaintiff’s pre-existing back injury.

167 I have found that the plaintiff did suffer from a pre-existing pain injury which caused him pain from time to time and caused him to wear a back brace. The injury was not sufficiently severe to prevent him from performing heavy labouring work on a consistent basis up to the date of his injury. The fact that he had been experiencing symptoms in relation to his back since before he left the Navy, albeit on an intermittent basis up to the time of the accident, persuades me that it would have been most unlikely that the plaintiff would have been able to perform heavy labouring work of the type which his business required up to age 65. Accordingly I propose to increase the level of vicissitudes from 15% to 20% to have regard to the real chance that the plaintiff’s back problems would have forced him to give up labouring work in his business before age 65.

168 Accordingly, I calculate the plaintiff’s entitlement to damages for future loss of earning capacity to be $261,456, ie $390 per week for 31.35 years less 20% for vicissitudes.

169 The plaintiff’s claim included an amount for loss of superannuation benefits. This was put on two bases. The first was that some allowance should be made for a loss of superannuation in order to have regard to the possibility that the plaintiff may have ceased being self-employed and decided to work for someone else. I do not accept that argument. The plaintiff’s case on economic loss was put on the basis that uninjured he would have been self-employed. No specific employment scenario was suggested other than an alternate claim for economic loss based on average weekly earnings.

170 The second basis was that as a self-employed person, it was open to the plaintiff to so structure his affairs by setting up his own superannuation fund that he could gain a taxation benefit. It was submitted that allowance should be made under the heading of “superannuation loss” for this lost benefit.

171 There are a number of problems with this submission. The first is that it indirectly involves a claim for the loss of investment opportunities relating to his private superannuation fund. There was no expert or other evidence as to how such a fund would be set up and how much would be paid from the plaintiff’s weekly income towards it. Finally, the plaintiff has had the whole of his weekly income brought to account in the calculation of future loss of earning capacity. If some allowance were to be made for superannuation as a self-employed person, the claim for future loss of earning capacity would have to be reduced by the amount to be deducted weekly as a contribution to his private superannuation fund. Accordingly, apart from the problem created by the absence of evidence, the submission involves double counting. The claim for loss of superannuation is rejected.

Conclusion

172 My assessment of the plaintiff entitlement to damages is as follows:

Non economic loss	$124,800.00
Past out-of-pocket expenses	$ 20,979.40
Interest on past paid out of pocket expenses	$ 2,031.00
Future out of pocket expenses	$ 48,506.00
Past Gratuitous attendant care services	$ 14,103.00
Past economic loss	$ 94,740.00
Interest on past economic loss	$ 11,899.00
Future loss of earning capacity	$261,456.00
Total	$578,514.40

173 No submissions were made to me as to costs. Accordingly, I propose to reserve that question and give to the parties liberty to apply if any special costs orders are sought.

174 The orders which I make are:

(1) Judgment in favour of the plaintiff in the sum of $578,514.40
(2) The defendants to pay the plaintiff’s costs.
(3) Liberty to apply on three days’ notice.

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30/03/2006 - Typographical error - word "the" changed to "a" - now to read "32% of a most extreme case, ie $124,800." - Paragraph(s) 131

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Citations

Butler v Mitchell [2006] NSWSC 197

Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

1

Mount Isa Mines Ltd v Pusey [1970] HCA 60

Tasmania v Victoria [1935] HCA 4

CITATION:	Butler v Mitchell & Anor [2006] NSWSC 197 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	05/09/2005, 06/09/2005, 07/09/2005, 08/09/2005, 20/02/2006, 21/02/2006, 22/02/2006, 23/02/2006
JUDGMENT DATE :	29 March 2006
JUDGMENT OF:	Hoeben J at 1
DECISION:	Judgment in favour of the plaintiff in the sum of $578,514.40; Costs reserved.
CATCHWORDS:	Tort - Negligence - What was a reasonable response by lessors to location of pump - Lessors' duty of care to lessee - one acre rural property - pump located in dangerous location - whether location of pump constituted defect - whether content of duty of care required lessors to move pump to avoid foreseeable risk of injury - damages - claims for gratuitous attendant care and future economic loss sections 13 and 15 Civil Liability Act 2002.
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Ahluwalia v Robinson [2003] NSWCA 175 Husher v Husher (1999) 197 CLR 138 Jones v Bartlett and Another (2000) 205 CLR 166 March v E and MA Stramare Pty Ltd (1991) 171 CLR 506 Sakoua v Williams [2005] NSWCA 405 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Adam Charles Butler - Plaintiff Raymond Mitchell - First Defendant Eileen Mitchell - Second Defendant
FILE NUMBER(S):	SC 20142/2003
COUNSEL:	Mr I Wales SC - Plaintiff Mr G Gregg - 1st and 2nd Defendants
SOLICITORS:	Lough Wells Duncan - Plaintiff Ebsworth & Ebsworth - 1st and 2nd Defendants