D'Souza v Barclays Building Services (WA) Pty Ltd
[2020] WADC 87
•19 JUNE 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: D'SOUZA -v- BARCLAYS BUILDING SERVICES (WA) PTY LTD [2020] WADC 87
CORAM: GETHING DCJ
HEARD: 3-6, 9-13 & 16-18 MARCH 2020
DELIVERED : 19 JUNE 2020
FILE NO/S: CIV 365 of 2016
BETWEEN: CHRISTOPHER LLOYD D'SOUZA
Plaintiff
AND
BARCLAYS BUILDING SERVICES (WA) PTY LTD
First Defendant
CHRISTOPHER BESTALL
Second Defendant
DEAN THAKE & SAMANTHA THAKE t/as SELECT FLOORING
Third Defendant
Catchwords:
Torts - Negligence - Harm alleged as a result of work done by flooring installation subcontractor - Inhalation injury - Extent of duty of care owed by principal - Extent of duty of care owed by contractor - Extent of duty of care owed by subcontractor - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5C, s 5K
Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act 1947 (WA), s 4
Occupational Health and Safety Act 1984 (WA), s 19, s 21, s 22, s 23D, s 23E, s 23F, s 23L, s 57
Occupational Health and Safety Regulations 1996 (WA), reg 3.2
Result:
Action dismissed
Representation:
Counsel:
| Plaintiff | : | In Person |
| First Defendant | : | Ms B A Mangan |
| Second Defendant | : | Mr D R Clyne |
| Third Defendant | : | Mr D M McKenna |
Solicitors:
| Plaintiff | : | Not applicable |
| First Defendant | : | Moray & Agnew Lawyers |
| Second Defendant | : | SRB Legal |
| Third Defendant | : | Mills Oakley |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Amaca Pty Ltd (under NSW administered winding up) v Booth; Amaba Pty Ltd (under NSW administered winding up) v Booth [2011] HCA 53; (2011) 246 CLR 36
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Ayton v City of Armadale [2020] WASCA 39
Bell v The State of Western Australia [2004] WASCA 205; (2004) 28 WAR 555
Benham v Gambling [1941] 1 All ER 7
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CGU Insurance Ltd v Coote [2018] WASCA 117
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co‑operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41
Commissioner of State Revenue v Mortgage Force Australia Pty Ltd [2009] WASCA 24
Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217
Donoghue v Stevenson [1932] AC 562
Easther v Amaca Pty Ltd [2001] WASC 328
Fazio v Fazio [2012] WASCA 72
Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102
Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Hannell v Amaca Pty Ltd [2006] WASC 310
Hirst v Sydney South West Area Health Service [2011] NSWSC 664
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
Houlahan v Pitchen [2009] WASCA 104
Howells v Murray River North Pty Ltd [2004] WASCA 276
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Joyce v Anderson [2020] WASCA 48
Kerr v The Minister for Health [2009] WASCA 32
Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99
Kittelty v Davies [2011] WADC 1
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Lyle v Soc [2009] WASCA 3
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Mastaglia v Burns [2006] WASCA 190; (2006) 32 WAR 427
McGhee v National Coal Board [1973] 1 WLR 1
McGilvray v Amaca Pty Ltd [2001] WASC 345
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Montemaggiori v Wilson [2011] WASCA 177
Morrison v De Bono [2005] WASC 271
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Nobarani v Mariconte [2018] HCA 36
Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17
Owners of Steamship or Vessel 'British Fame' v Owners of Steamship or Vessel 'Macgregor' (The 'British Fame') [1943] AC 197
Panizza v Moir [2009] WADC 110; (2009) 64 SR (WA) 166
Paul v Rendell (1981) 34 ALR 569
Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10
Perpetual Trustee Co Ltd v Burniston [No 2] [2012] WASC 383
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Robinson v Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2017] WASCA 190
Rowe v Stoltze [2013] WASCA 92
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Setton v Eves [2006] WASCA 3
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
Smart v Prisoner Review Board (WA) [2012] WASC 48
St George Club Ltd v Hines (1961) 35 ALJR 106
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
Sweeney v Boylan Nominess Pty Ltd [2006] HCA 19; (2006) 226 CLR 161
Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
The State of Western Australia v Watson [1990] WAR 248
Tobin v Dodd [2004] WASCA 288
Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 43 WAR 383
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Van Gervan v Fenton (1992) 175 CLR 327
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Waverley Council v Ferreria [2005] NSWCA 418
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Winiarczyk v Tsirigotis [2011] WASCA 97
Woodley v Woodley [2018] WASCA 149
Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; (1997) 149 ALR 25
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
GETHING DCJ:
Overview
In 2015 Christopher D'Souza, the plaintiff in this action, was the tenant of a property in suburban Perth (House). In March 2015 an area of the timber laminate flooring in the House was damaged by water. The landlords of the House made a claim on their policy. Their insurer engaged Barclays Building Services (WA) Pty Ltd (Barclays), the first defendant, to rectify the damage to the House. Barclays in turn engaged Christopher Bestall, the second defendant, to repair the area of water damaged flooring. Mr Bestall purchased the replacement timber laminate flooring, and then engaged Dean Thake of Select Flooring, the third defendant, to install the timber laminate flooring. On 7 July 2015, Mr Bestall and Mr Thake removed the damaged flooring and then Mr Thake installed the replacement timber laminate flooring.
The following day Mr D'Souza complained to Barclays that the work done in the House had caused dust. Barclays arranged for the House to be cleaned which occurred on 14 July 2015.
On the evening of 7 July 2015 and over following weeks, Mr D'Souza developed symptoms, in particular respiratory, cardiac and psychological symptoms, which he says were caused by the manner in which the timber laminate flooring was installed. He says he has been left with an impairment to his lung and other residual symptoms which have had a significant impact on his health and ability to enjoy life.
By writ filed 3 February 2016, Mr D'Souza sued Barclays, Mr Bestall and Select Flooring (Writ). In the Writ he claims damages for personal injuries which he says he suffered from exposure to a hazardous substance on 8 July 2015, which was caused by negligence and breach of statutory duties, from which he asserts he has suffered serious harm and health risks (Claim). It is common ground that the work undertaken by Mr Bestall and Mr Thake took place on 7 July 2015, not 8 July 2015.
The defendants deny the Claim.
For the reasons which follow, the plaintiff has not established the Claim and it will be dismissed.
Issues arising for determination
The issues in dispute between the parties are set out in the current versions of the pleadings filed, being:
•The plaintiff's second re-amended statement of claim, filed 6 May 2016.
•The plaintiff's particulars of damages, filed 23 June 2016.
•The first defendant's re-amended defence, filed 11 June 2018.
•The plaintiff's amended reply to the defence of the first defendant, filed 5 May 2016.
•The second defendant's re-amended defence, filed 31 May 2018.
•The plaintiff's amended reply to the defence of the second defendant, filed 5 May 2016.
•The second defendant's notice of contribution against the third defendant, filed 15 August 2019.
•The third defendant's amended defence, filed 12 June 2018.
•The plaintiff's reply to the defence of the third defendant, filed 5 May 2016.
•The third defendant's notice of contribution against the second defendant, filed 15 January 2020.
Each party also filed written opening and closing submissions. At points, the plaintiff in his closing submissions sought to give evidence beyond what he said under oath at trial.[1] Where he has done so, I have ignored the additional factual material.
[1] See for example Plaintiff's closing submissions pars 161 - 174, pars 231 - 245; plaintiff's responsive submissions, pars 21 ‑ 30.
From the pleadings and submissions filed, 16 issues arise for determination:
•What occurred up to and on 7 July 2015?
•What occurred immediately following 7 July 2015?
•What symptoms did the plaintiff experience on and after 7 July 2015?
•What conclusions as to liability can be drawn from the expert evidence?
•What is the nature of the relationship between the parties?
•Did Mr Thake breach any duty of care he owed to the plaintiff?
•Did Mr Bestall breach any duty of care he owed to the plaintiff?
•Did Barclays breach any duty of care it owed to the plaintiff?
•Were the plaintiff's symptoms caused by any breach of a duty of care?
•If any defendant is liable, is the plaintiff also negligent?
•Is there any liability for occupational health and safety breaches?
•On what basis should damages be assessed?
•What damages is the plaintiff entitled to for medical treatment?
•What damages is the plaintiff entitled to for economic loss?
•What general damages is the plaintiff entitled to?
•What final orders are appropriate?
In dealing with these issues, I recognise that Mr D'Souza is a litigant in person. As such, he is entitled to some leniency in relation to compliance with the court rules.[2] I approach the documents in which he articulates his claim with some flexibility.[3] I need to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[4] I recognise that a 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[5]
[2] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[3] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[4] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
[5] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim [21]; Glew [10]; Tobin [14].
At the same time, I also need to ensure that any latitude given to Mr D'Souza as a litigant in person does not deprive each of the defendants of their rights to procedural fairness and a fair hearing.[6] The balance is struck by limiting the assistance given to a litigant in person to that necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[7] As the Court of Appeal recently observed:[8]
1.The court's obligation is to ensure a fair and just trial for all parties …
2.A self-represented litigant is subject to the practice and procedure of the court as much as any other litigant …
3.The court's obligation in the case of a self-represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair trial to both parties (the application of the principle depending on the circumstances of the case) … Among other things a trial judge should usually inform a self-represented litigant of the manner in which the trial is to proceed and his or her right to examine witnesses and object to evidence. Also, it will usually be of importance to ensure that a self-represented litigant understands the distinction between evidence and submissions ...
4.A trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised …
5.All the more so the trial judge's role in providing information to the self-represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self‑represented litigant …
[6] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
[7] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court).
[8] Zerjavic [75] (references omitted).
The plaintiff gave evidence. His evidence and cross-examination took place over seven sitting days as it was necessary to interpose various witnesses in order to ensure that all the evidence could be taken in the trial time allocated. Given how disjointed the plaintiff's evidence became, I made a direction that the plaintiff be provided with a copy of the transcript for the trial at no cost and, as a matter of fairness, made the same direction for each defendant.
The plaintiff called three witnesses going to the issue of the risks of injury arising from the manner in which the floorboards were installed in the House. The first was Owen Carpenter, a laboratory analyst for Microanalysis Australia. The plaintiff engaged Microanalysis Australia to provide a report on the mineral content of a wood dust sample from the remainder of the floorboards left at the House. The second was Paul Nottle, a laboratory analyst for Analytical Reference Laboratory (ARL). The plaintiff engaged ARL to provide a report on the chemical content of the wood dust alleged to have caused his symptoms. The third was Laurence Glossop, an occupational hygienist, who gave evidence on the effect of substances said to be in the floorboards on the health of a person.
The plaintiff then called two medical practitioners. The first was Dr Justin Ng, who was his treating respiratory and sleep health physician. The second was Veronica Tyler, his treating clinical psychologist.
There was two other witnesses whom the plaintiff endeavoured to call during the course of the trial, Dr Mohamad Mustafa, his general practitioner, and Dr Richard Clugston, his cardiologist. The action was first listed for trial in September 2018 when it was allocated seven days commencing 18 February 2019. The trial dates were vacated at a directions hearing on 18 December 2018, and programming orders made. The new trial date was set on 8 April 2019. Both Dr Mustapha and Dr Clugston appeared in the list of witnesses which the plaintiff proposed to call, filed 25 February 2020. At the commencement of the trial the plaintiff assured the court that arrangements had been made for Dr Mustapha and Dr Clugston to give evidence.[9] This is despite concerns being raised by counsel for the defendants.[10] As the trial progressed, it became apparent that those arrangements were not as firm as the plaintiff led the court to believe.[11] I endeavoured to be flexible to accommodate these witnesses.[12] In the end, neither was able to give evidence. Given the lead time to trial, I am satisfied that the plaintiff had an ample opportunity to make arrangements for Dr Mustapha and Dr Clugston to give evidence, and the fact that he was unable to secure their attendance did not deprive him of procedural fairness.[13]
[9] ts 16, ts 114 ‑ ts 115, ts 448, ts 562.
[10] ts 707 ‑ ts 708, ts 775.
[11] ts 707 ‑ ts 708, ts 771 ‑ ts 774, ts 839, ts 930.
[12] ts 191, ts 661 ‑ ts 662, ts 773 ‑ ts 774, ts 776, ts 778, ts 841 ‑ ts 842, ts 930 ‑ ts 932.
[13] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], see also [88] (Gummow & Bell JJ), [141] ‑ [146] (Heydon J); Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed).
As to the first defendant, Leigh Barclay, its managing director, gave evidence. Barclays also called:
•Belinda Kemp, a claim support manager for Barclays between 2014 and 2017.
•Andrea Zappacosta, proprietor of AZ Cleaning Services, who cleaned the House, at Barclays' request, a week or so after the floorboards were laid.
Mr Bestall, the second defendant, gave evidence.
The second defendant also called Dr Gemma Edwards-Smith, a consultant psychiatrist who undertook medico legal reviews of the plaintiff.
The third defendant is Dean Thake and Samantha Thake trading as Select Flooring. Select Flooring is a business name operating under a trust, the trustees of which are Dean and Samantha-Leigh Thake. Each gave evidence. For ease of reference, I will refer to the third defendant as Mr Thake as it is not in issue that his knowledge and actions constitute the knowledge and actions of Select Flooring, which is not a separate legal entity.
Mr Thake also called:
•Ian Davies, another employee of Microanalysis Australia.
•Amanda Jackson, a private investigator who interviewed the plaintiff and prepared a statement which he signed on 19 November 2015.
•Geoff Pickford, an occupational hygienist, who prepared a report regarding the mineral and chemical content of the wood dust.
•Ronald Beckett, an engineer, again as to the mineral and chemical content of the wood dust.
What occurred up to and on 7 July 2015?
3.1 Overview
Much of what occurred up to and on 7 July 2015 is not in issue. This is set out in sections 3.2 and 3.3. There are two significant factual disputes as to the events of 7 July 2015, so it is necessary to consider the evidence of the plaintiff (section 3.4), Mr Bestall (section 3.5) and Mr Thake (section 3.6). Before making factual findings (section 3.8), it is necessary to consider the challenges to the reliability and credibility of the plaintiff's evidence made by counsel for each of the defendants (section 3.7).
3.2 Events leading to 7 July 2015
The facts in section 3.2 are not in issue.
At the end of 2014 the plaintiff entered into a residential lease of the House.[14] He had hopes of using the House as a venue to conduct a mediation business.[15]
[14] ts 43, ts 263 (D'Souza).
[15] ts 535 (D'Souza).
On 4 March 2020, the second day of the trial, the plaintiff, counsel and I carried out a site visit to the House in the course of the trial.[16]
[16] The site visit was recorded and a thumb drive containing the audio visual recording is Exhibit P32.
The House is a two‑storey residential house in suburban Perth. It has a double garage which is fully enclosed as part of the structure of the residence, and has a sectional door (comprising horizontal panels which fold up towards the roof when open). There is access from the garage to the interior of the residence through a door. The garage is at a lower level than the ground floor of the residence, so there is a need to go up two concrete steps (which are in the garage) in order to access the door into the residence. The garage door leads into the front entrance hallway, opening into the garage. Opposite the garage door entry there is a bathroom. Facing the interior of the House at the garage door access, to the left there is the front entrance and a room and to the right there is hallway leading to the downstairs living area.
As you enter the downstairs living area from the front entrance hallway, to the left there is a set of stairs, laundry, kitchen and dining area. The flooring in this area consists of laminated floorboards. To the right there is a large open living area which, among other things, contains a grand piano belonging to the plaintiff. Upstairs there is a large room which the plaintiff used as a master bedroom and study, as well as a bathroom and another bedroom.
In March 2015 a pipe connected to the washing machine at the House sprung a leak. The laminated floorboards under the stairs and in the kitchen and dining areas were flooded and damaged.[17]
[17] ts 42 - ts 43, ts 763 (D'Souza).
The plaintiff brought the damage to the attention of the landlords' agent. The landlords made a claim on the insurance for the House.[18]
[18] ts 43 (D'Souza).
Their insurer engaged Barclays to remediate the flood damage at the House.[19]
[19] ts 883 (Barclay).
Barclays' business is to provide building services to insurers, repairing for damage for which property owners had lodged insurance claims.[20]
[20] ts 870, ts 872 (Barclay).
An employee of Barclays inspected the House and prepared a scope of works.[21] This scope of works was then sent to the landlords who authorised the works to be carried out.[22] The full scope of works approved was (Insurance Repair Works):
[21] Exhibit D42.
[22] ts 622 (Kemp); ts 883 (Barclay); Exhibit D42.
Laundry - 1.8m x 2.1m
1.Plaster repair ceiling and cornice, approximately 1m2, flush and sand in preparation for painting.
2.Seal and paint the ceiling and cornice to the laundry.
3.Tile and grout clean to the floor in the laundry.
Kitchen/ Dining Room - 7.0m x 3.6m Plus Area Under Stairs. 900mm x 3.2m
4.Remove and dispose of laminate floor throughout.
5.Supply and install a new floating laminated floor throughout, re‑using existing aluminium trims if possible. Laminate floor is 190mm x 1285mm boards.
6.Move furniture off area of works and relocate back into positon.
7.Disconnect and reconnect fridge.
8.Lay all drop sheets.
9.Remove all trade-related waste and leave site clean and tidy.
Five contractors were initially selected by Barclays' employees to undertake the Insurance Repair Works, including Mr Bestall.[23]
[23] ts 884 - ts 885 (Barclay); Exhibit D43.
On or about 5 June 2014 Barclays had entered into a written agreement entitled 'Service Level Agreement SubContractor 2.0' with Mr Bestall whereby Mr Bestall agreed to carry out building repair works upon request from time to time (SLA).[24] He had also agreed to be bound by a document titled 'Contractors Code of Behaviour'.[25] One of the issues in this trial is whether the relationship between Barclays and Mr Bestall is that of contractor/subcontractor or employer/employee, which requires some analysis of these documents. I deal with this in part 7.
[24] ts 612 - ts 613 (Kemp); Exhibit D20.
[25] ts 610 - ts 611 (Kemp); Exhibit D18.
On or about 2 June 2015 Barclays engaged Mr Bestall pursuant to the terms of the SLA to carry out certain repair work at the House. It did so by sending him a work order. The work order set out all the Insurance Repair Works, then scored through the works which other trades had been engaged to undertaken. The work order specified the following works for Mr Bestall to undertake:
(a)the removal and disposal of the existing laminate flooring from the House;
(b)the supply and installation of new 190 mm x 1,285 mm floating laminate boards in the House;
(c)the moving of any furniture away from the areas where the works in (a) and (b) would be carried out;
(d)the laying of drop sheets; and
(e)the removal of all trade related waste from the House.
(the Floorboard Works).[26]
[26] ts 621 - ts 622 (Kemp); ts 887 (Barclay); ts 990 (Bestall); Exhibit D23.
The Floorboard Works specified a budget of $2,660 (ex GST), comprising $1,100 for materials and $1,560 for labour.[27] The budget was based on rates commonly used between Barclays and Mr Bestall for the repair of laminated timber flooring.[28]
[27] Exhibit D23.
[28] ts 985, ts 991 - ts 992, ts 1004 (Bestall).
Mr Bestall attended the House and spoke to the plaintiff. Mr Bestall perused the House to check what had to be done, and 'to make sure that everything was okay and safe for our guys to … work there'. The plaintiff was asked to, and did, select the style of the timber laminate flooring to be laid from samples provided by Mr Bestall.[29] The plaintiff also asked Mr Bestall not to start at his usual time of 7.00 am, but to start at 8.00 am.[30]
[29] ts 43, ts 703 - ts 704 (D'Souza); ts 1002 (Bestall).
[30] ts 1002 (Bestall).
Mr Bestall went away and purchased just under 31 sqm of Quick‑Step Laminate Flooring (Floorboards) from Premium Floors Australia, as well as other materials to undertake the Floorboard Works.[31]
[31] ts 998 - ts 1000 (Bestall); Exhibit D46.
Mr Bestall also engaged Mr Thake to lay the Floorboards. The characterisation of the relationship between Mr Bestall and Mr Thake is also in issue. I deal with this in part 7.[32]
[32] ts 1000 - ts 1001 (Bestall); ts 1109 (Thake).
On 4 March 2020, the plaintiff, counsel and I attended Mr Thake's business premises. We inspected a sample of the Floorboards. The Floorboards are 1,285 mm long and 190 mm wide. They connect together using a tongue and groove locking mechanism. Mr Thake demonstrated the use of a guillotine to cut a floorboard. He undertook a number of cuts. It was evident to me that a cut with the guillotine did not generate any wood dust. It did generate some small chips of the material used to construct the Floorboards.[33]
3.3 Events of 7 July 2015 - facts not in issue
[33] An audio visual recording of this inspection is Exhibit P33.
The facts in section 3.3 are not in issue.
There was some meteorological evidence before the court as to the weather conditions on 7 July 2015. Aside from confirming the testimony of the witnesses that it was raining at times on that day, with light winds in various directions, the meteorological evidence adds nothing to the analysis.[34]
[34] Exhibit P1; Exhibit D48.
As at 7 July 2015, there was general household dust laying on the furniture in the House.[35]
[35] ts 767 (D'Souza).
On the morning of 7 July 2015, Mr Bestall and Mr Thake arrived at the House around 7.30 am - 8.00 am.[36]
[36] ts 540, ts 704 (D'Souza); ts 989 (Bestall); ts 1122 (Thake).
Mr Bestall was driving his own work vehicle, with a dump trailer. In the trailer, he had the Floorboards and other materials.[37]
[37] ts 988 (Bestall).
In his work vehicle, Mr Bestall had a copy of a Materials Safety Data Sheet for the Floorboards. He did not consider that there was anything in this information for the Floorboards which was going to cause either him or Mr Thake an issue. He did not discuss this document with Mr Thake.[38]
[38] ts 1026 - ts 1028 (Bestall).
Mr Thake was driving his own work vehicle, the type of which is in contention. Initially, Mr Thake parked out on the street.[39]
[39] ts 1122 (Thake).
It was raining heavily when Mr Bestall and Mr Thake arrived. Mr Bestall and Mr Thake had a discussion about whether or not to lay the job. Ordinarily any sawing would be done outside, but this was not possible due to the rain. Mr Bestall asked the plaintiff if he minded them using his garage because they could not saw outside. There was a short discussion. In the end, the plaintiff agreed, and moved his car out of the garage.[40]
[40] ts 44 (D'Souza); ts 985, ts 1030 (Bestall); ts 1124 - ts 1125 (Thake).
Mr Bestall and Mr Thake then moved the furniture off the floorboard area.[41] The plaintiff was upstairs while this occurred.[42]
[41] ts 541 (D'Souza); ts 985 (Bestall); ts 1123 (Thake).
[42] ts 713 (D'Souza).
In the course of moving furniture, Mr Bestall and Mr Thake observed black mould in the rear of a cupboard in the laundry of the House. Mr Bestall took a photograph of the mould, which is in evidence.[43]
[43] ts 986 (Bestall); ts 1137 (Thake); Exhibit D44.
A plumber also attended (arranged by Barclays) as it was thought that there was a fridge or dishwasher which had to be disconnected before being moved. This was not required, so the plumber assisted Mr Bestall and Mr Thake to move the furniture, then left.[44]
[44] ts 985 - ts 986 (Bestall).
Mr Bestall backed his car up towards the garage. He and Mr Thake unloaded the Floorboards from Mr Bestall's trailer and placed them in the garage.[45]
[45] ts 704 (D'Souza); ts 988 - ts 989, ts 1021- ts 1022 (Bestall).
Mr Bestall and Mr Thake removed the damaged floorboards, took them out through the garage or front door and placed them into Mr Bestall's trailer.[46]
[46] ts 48, ts 704, ts 711 (D'Souza); ts 988, ts 993 - ts 994 (Bestall); ts 1124 (Thake).
Mr Bestall then left between 9.00 am and 10.00 am, before Mr Thake commenced laying the floorboards. He did not go back to the House. He did not see Mr Thake use a guillotine.[47]
[47] ts 989, ts 1012 (Bestall).
Mr Thake backed his vehicle into the garage and then set up his tools.[48]
[48] ts 45, ts 705 (D'Souza); ts 988 (Bestall); ts 1125 (Thake).
Mr Thake then laid the Floorboards.
In the course of laying the Floorboards, Mr Thake used power tools to cut at least some of the Floorboards.
Mr Thake and the plaintiff engaged in minimal conversation throughout the day.[49]
[49] ts 49 (D'Souza); ts 1131 (Thake).
Mr Thake finished laying the Floorboards around 4.00 pm. He then cleaned up and left.[50]
[50] ts 50, ts 542 (D'Souza); ts 1129 - ts 1130 (Thake).
After Mr Thake left, the plaintiff made himself some food in the kitchen.[51]
[51] ts 62, ts 543 (D'Souza).
The plaintiff first started to feel 'not so good' at around 9.00 pm when he was cooking some dinner.[52]
[52] ts 543 - ts 547 (D'Souza).
At around 11.00 pm that evening the plaintiff felt ill (something which I return to in section 5.3).[53]
[53] ts 543 - ts 547 (D'Souza).
It was then he first realised how dusty the House was. He noticed that the kitchen bench was covered in dust. He noticed fine dust throughout the House, including on his grand piano and the chair in his upstairs bedroom. He got a vacuum cleaner out and vacuumed the House and washed his bed linen.[54]
3.4 The plaintiff's evidence
[54] ts 51 - ts 52, ts 62, ts 543 - ts 547 (D'Souza).
The plaintiff gave evidence that Mr Thake's ute was a 'typical tradie's ute' with an open rear tray.[55]
[55] ts 706, ts 725 (D'Souza).
Mr Bestall had gone by the time Mr Thake backed his car into the garage and began to unload his tools.[56]
[56] ts 705 (D'Souza).
The only tools which the plaintiff saw Mr Thake unload from his ute were an 'industrial circular saw' and a drop saw. He did not see a guillotine being taken out, nor did he see it in the ute. Nor did he see a jigsaw. He saw a vacuum cleaner, but this was not taken out of the ute. He did not see it being used for dust extraction connected to the table saw.[57]
[57] ts 45 - ts 46, ts 50, ts 246 - ts 247, ts 727 - ts 735 (D'Souza).
The plaintiff was working upstairs on his computer whilst the Floorboards were being installed. From time to time he went downstairs. He saw Mr Thake laying the Floorboards on the concrete floor on top of a white underlay.[58]
[58] ts 46 - ts 48, ts 541 (D'Souza).
The plaintiff then heard a saw going every 2½ ‑ 3 minutes, each noise lasting 5 ‑ 10 seconds. He described it as a 'screeching noise ... a horrible noise'. This noise 'virtually went throughout the day, the whole day'.[59]
[59] ts 49 (D'Souza).
The plaintiff at various times gave evidence as to the number of cuts which Mr Thake must have done based on the actual floorboards in his House. The numbers varied from 200 to 500 cuts.[60] It was not apparent to me that this exercise was done with sufficient rigour to enable me to place any weight on his estimate, so I do not.[61]
[60] ts 48 - ts 49, ts 245, ts 738 (D'Souza).
[61] ts 243, ts 738 - ts 745 (D'Souza).
The plaintiff recalls going downstairs about five times to check on Mr Thake, to see if he wanted anything like a tea or some water. Mr Thake was not very communicative in response. He saw Mr Thake in the kitchen, but has no recollection of what he was doing. He saw Mr Thake using the 'industrial saw' in the garage, and would wait until the sawing stopped before speaking. He did not see Mr Thake use the drop saw. Later he saw Mr Thake cutting beading with the 'industrial saw'.[62]
[62] ts 49, ts 245, ts 723, ts 736, ts 748 - ts 751, ts 755 - ts 759 (D'Souza).
The plaintiff did not see Mr Thake wearing any goggles, gloves or mask when he was cutting.[63]
[63] ts 50, ts 245 (D'Souza).
The plaintiff said that the internal door between the garage and the house had been propped open by Mr Thake using Floorboards.[64]
[64] ts 245 (D'Souza).
Before he left, Mr Thake vacuumed the garage. He did not vacuum inside the house.[65]
[65] ts 50 - ts 51, ts 543, ts 753 (D'Souza).
The plaintiff and Mr Thake did not have a conversation when Mr Thake left.[66]
[66] ts 50, ts 542 (D'Souza).
When Mr Thake left the House, it was covered with a thick layer of saw dust that was clearly visible.[67]
[67] ts 753 (D'Souza)
The plaintiff gave evidence that he was not a smoker, and did not smoke on 7 July 2015:[68]
[68] ts 79 - ts 80 (D'Souza).
So you're back under oath, so tell me what you want to tell me about you and smoking?‑‑‑I have never been addicted to smoking. I have never ever been a habitual smoker. Never. I've read evidence that I've smoked every half an hour. I have heard evidence that I smoked three or four cigarettes. I've heard evidence, written evidence that I've smoked in the garage and I've never done that. I never smoked at all on that day, never.
Okay. So - so your evidence is that on 7 July 2015 when these events occurred you didn't smoke at all that day?‑‑‑I did not smoke at all. No way. Not in the garage, not upstairs in my bedroom, not downstairs, not anywhere.
Okay. In the - in the week preceding 7 July, how many smokes do you reckon - how many cigarettes do you reckon you had?‑‑‑Sorry?
In the week preceding 7 July, did you smoke at all?‑‑‑No.
Okay?‑‑‑No.
In the month preceding 7 July 2015, did you ‑ ‑ ‑?‑‑‑In the years.
Okay. But in - in the month, did you have any smokes?‑‑‑No.
Okay?‑‑‑No.
In the preceding year - or okay, prior to the - let me ask this. So prior 7 July 2015, when was the last time you had a smoke in broad terms?‑‑‑I would only smoke when it were ‑ I used to go out because my brother's a musician and he plays music and I know all his - the people in the band and when they're outside and they smoke, 'Come on, come on, have a cigarette', and all that I'll just smoke and I'll have half a cigarette and I can't stand it and then I ‑ it's just a social thing. And that would have happened, what, about - I would say over a year and a half. Other than that I've never smoked.
Okay. So - so in terms of - if we take 7 July as your ‑ ‑ ‑?‑‑‑There's ‑ ‑ ‑
‑ ‑ ‑ starting point, your - your evidence is that - that you have smoked in the past, you've never been addicted to nicotine and the last smoke you had would have been a social smoke around 18 months or so prior to?‑‑‑That's ‑ yeah. Your Honour, I just want to say, I broke up with my partner on - in June 2015 and I couldn't sleep. It really affected me. And I just couldn't sleep and I just like I was wondering, 'How am I going to sleep?' And I thought the only thing that will put me to sleep is maybe if I just indulge in a cigarette. So I drove down to the station and I bought a packet of cigarettes and I just had one puff of it and it made me sick and I just didn't do it, I crushed it up and threw it out. And that's - so I wouldn't even call it smoking then with that. It didn't work, it just - it was a vile taste, it just - it didn't make me feel good. I thought, you know, if I have - it's just a thought that you have something or you know something like that you induce it, you will go sleep and it knocks you out and all that and I was just desperate to get knocked out and you know stop thinking and all that sort of thing. That's the only time. Other than that I've never ever ‑ ‑ ‑
So - so that would have been - that would have been say around a month or so before 7 July?‑‑‑About a month. But I ‑ I didn't even smoke it. It - I just had a puff and it was just like - it was awful.
Okay. Well, I understand your evidence on that point. Yes, is there anything you wanted to add in relation to the smoking?‑‑‑No. It - it's just that I have never been a habitual smoker, I've never been addicted to cigarettes, I - I've never ever had anything to do with anything in that way. Never.
The plaintiff's evidence as to his history of smoking is consistent with what he said in answers to interrogatories.[69] He did not resile from this evidence in cross-examination.[70]
3.5 Mr Bestall's evidence
[69] Exhibit D7; Exhibit D49.
[70] ts 293 - ts 295, ts 721 - ts 722 (D'Souza).
Mr Bestall recalls Mr Thake having a utility with a covered tray, and then later a van.[71] He said that this utility looked like the one in a photograph shown to him.[72]
[71] ts 989 (Bestall).
[72] ts 994 - ts 995 (Bestall); Exhibit D53.
Mr Bestall gave evidence that he saw the plaintiff smoking:[73]
[73] ts 1003 - ts 1004 (Bestall).
Did you observe Mr D'Souza smoking during the time you were at the premises?‑‑‑Definitely.
And when you say definitely, what did you observe?‑‑‑He would have had four cigarettes by the time I'd left.
And where was he physically located when he had the cigarettes?‑‑‑Standing, well - first, I do recall him smoking two cigarettes while he was speaking to me and Dean, while we're setting up in the garage.
So was he in the garage smoking ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ when you observed him?‑‑‑Yep.
And you said there were - he smoked about four cigarettes. You said two then, were there any, where was he when he smoked the other two?‑‑‑Just walking around. Just while Dean and myself were taking the stuff in, he was walking around.
Do you smoke yourself?‑‑‑Never had a cigarette in my life.
Right. Is there any reason why you can be sure that you observed the smoking?‑‑‑Cos I detest smoking. My mother was a chain smoker, and it actually, it annoys me being around people that smoke.
He maintained his evidence under cross-examination.[74]
[74] ts 1014 - ts 1017 (Bestall).
Mr Bestall gave evidence that there was dust on stuff and that the side of the fridge they had to move was greasy and dirty. There was a cupboard near the laundry which was 'putrid', with a big mouldy patch on the wall. He took a photo of this which is in evidence. The mould is readily apparent in this photograph.[75]
[75] ts 986, ts 993 (Bestall); Exhibit D44.
When he had removed the damaged floorboards, Mr Bestall also observed there was a considerable amount of debris under the floor, plaster, concrete chips that which should have been removed before the floor was installed. There were cobwebs and dust on a wall unit that was being moved.[76]
[76] ts 987, ts 993 (Bestall).
The only tool which Mr Bestall can recall seeing Mr Thake remove from his vehicle in the garage was a table saw.[77] However, he said that on every job he had seen Mr Thake work, he had seen Mr Thake use a guillotine. He also gave evidence that a guillotine does not create dust.[78]
[77] ts 988 (Bestall).
[78] ts 995 - ts 997 (Bestall).
Mr Bestall also gave evidence as to his observations of how Mr Thake cuts laminate floorboards. Cuts across the narrow width of the floorboards were done by guillotine. This is the majority of the cuts. This is generally done inside and produces no dust. Drop saw, table saws and jigsaws are used outside. The table saw is used for longitudinal cuts. The jigsaw is used to cut around architraves and other small areas. The drop saw is used for the beading.[79]
3.6 Mr Thake's evidence
[79] ts 1030 - ts 1031 (Bestall).
Mr Thake gave evidence that as at July 2015 he drove a white Toyota Hilux ute. The ute had a fibreglass cab covering the tray. This is evident from photos of the ute from November 2016 when it was being offered for sale.[80]
[80] ts 1112 - ts 1113, ts 1171 (Thake); Exhibit D53; Exhibit D54; Exhibit D55.
Mr Thake gave evidence that when he was moving some of the furniture in the House prior to installing the Floorboards, he observed dust rings when bottles of alcohol were removed.[81]
[81] ts 1124 (Thake).
Mr Thake gave evidence that he used four main tools to lay the Floorboards on 7 July 2015. The first was a guillotine, a photo of which was tendered. Mr Thake explained that he brought the guillotine into the House and used it to do the straight cuts at the end of the board.[82]
[82] ts 1114 - ts 1115, ts 1118, ts 1126 - ts 1127 (Thake); Exhibit D56.
The second was a table saw, again a photo of which was tendered. The table saw was fitted with a tube which was connected to a vacuum cleaner so as to provide dust extraction. Mr Thake explained that he used the table saw to do cuts along the full length of the boards. Each cut would take 4 ‑ 5 seconds. The vacuum cleaner was turned on for each cut.[83]
[83] ts 1114 - ts 1118, ts 1127 (Thake); Exhibit D57; Exhibit D58.
The third was a drop saw, which was fitted with a dust extraction bag. Again there is a photograph of the drop saw. Mr Thake explained that the drop saw was used to cut the scotia beading at the end of the job. He did not use the drop saw for any other cutting. Each cut took 1 ‑ 2 seconds.[84]
[84] ts 1116 - ts 1119, ts 1127, ts 1129 (Thake); Exhibit D59.
The fourth was a battery powered jigsaw. Mr Thake used this for small or delicate cuts that could not be done with the table saw.[85]
[85] ts 1117 - ts 1118, ts 1127 (Thake); Exhibit D60.
Mr Thake then gave evidence that:[86]
(a)around 50% of the Floorboards were able to be laid without any form of cutting;
(b)all the end cuts were done with the guillotine;
(c)around 50% of the Floorboards which were cut, were cut using the guillotine;
(d)only the side cuts were done with either the table saw or the jigsaw;
(e)the jigsaw was used for small cuts around cabinetry; and
(f)the table saw, jigsaw and drop saw were only used in the garage.
[86] ts 1120 - ts 1122, ts 1127 - ts 1129 (Thake).
Mr Thake said that when he was using power tools, he wore safety glasses.[87] He did not wear a dust mask as he using dust extractors.[88]
[87] ts 1165 (Thake).
[88] ts 1167 (Thake).
Mr Thake gave evidence that during the course of the day, the plaintiff came into the garage where he was working and smoked cigarettes:[89]
McKENNA, MR: Now, during the course of the day when you were working in the garage, did Mr D'Souza ever enter?‑‑‑Yes.
And can you tell his Honour on how many occasions and what he did on each occasion?‑‑‑I did notice probably eight to 10 times throughout the day. I did notice him in the front - around the front of my car just outside the - the garage, the carport there, and just inside trying to get out of the rain. He was smoking. One reason I did notice is the smell. I'm very sensitive to the smell of cigarettes so that's - that's what made me look at some time and - and I'm like where's the smell coming from and I did see Mr D'Souza there.
And are you able to tell his Honour that you actually saw him smoking a cigarette?‑‑‑Yes, I did see him smoking cigarettes, yes.
And on how many occasions did you actually see him smoking a cigarette?‑‑‑Eight to 10 occasions definitely.
Do you smoke?‑‑‑I don't smoke at all, no.
And you've told his Honour that you are sensitive to ‑ ‑ ‑?‑‑‑I'm quite sensitive. Yeah, I don't like the smell.
[89] ts 1130 - ts 1131 (Thake).
Mr Thake also gave evidence that at one point he told the plaintiff not to walk past him when he was cutting.[90]
[90] ts 1132 (Thake).
Mr Thake said that he did not leave the door between the garage and the interior of the House open, closing it each time he went through. He had no difficulty opening this door. He did not wedge the door open.[91]
[91] ts 1131 - ts 1132 (Thake).
Once the Floorboards were laid, Mr Thake put all his tools back into the covered tray on his ute. He then cleaned up, vacuuming the garage and the tiling inside the House as well as wiping down surfaces inside the House. The residual dust (having used the extraction devices) from the work was minimal, fitting into a cupped hand. When he left, he did not notice any visible residual dust. He could not recall whether he moved the furniture back.[92]
[92] ts 1129 - ts 1130, ts 1167 (Thake).
Before leaving, the plaintiff and Mr Thake had a short conversation.[93]
[93] ts 1131 (Thake).
Mr Thake disputed that the dust that was evident in the photographs of the House taken on 8 July 2015 depicted the condition of the House when he left it. He observed that the dust shown in the photographs did not look to him like dust from cutting laminate.[94]
3.7 Challenges to reliability and credibility
[94] ts 1133 - ts 1134 (Thake).
The defendants challenged both the reliability and credibility of the plaintiff's evidence.
In relation to reliability, it is sufficient to refer to six matters which lead me to conclude that the plaintiff is not a reliable historian of the events of 7 July 2015 or matters occurring prior to or after that date.
The first matter is the plaintiff's recollection of whether the tray to Mr Thake's ute had a cover on it. It is not in issue that, due to rain, Mr Thake parked his ute in the garage to the House on 7 July 2015. As I have said, the plaintiff gave evidence that Mr Thake's ute was a 'typical tradie's ute' with an open rear tray.[95] Mr Thake gave evidence the white Toyota Hilux ute he drove had a fibreglass cab covering the tray, something evident from the photos which he tendered.[96] Mrs Thake gave evidence in the same terms as her husband.[97] Mr Bestall said the photographs looked like Mr Thake's car.[98] I have no hesitation in accepting Mr Thake's evidence that on 7 July 2015 there was a cover on the tray. I find that the plaintiff's recollection that it had no cover on the tray was flawed. He accepted in cross‑examination that he could be wrong. However, he also said that the pictures in evidence of Mr Thake's ute looked 'absolutely nothing like' the ute he saw in his garage.[99] There is no basis in the evidence for the assertion made by the plaintiff in his closing submission that Mr and Mrs Thake were attempting to mislead the court in relation to this issue.[100]
[95] ts 706, ts 725 (D'Souza).
[96] ts 1112 - ts 1113, ts 1171 (Thake); Exhibit D53; Exhibit D54; Exhibit D55.
[97] ts 1248 - ts 1250 (Thake).
[98] ts 994 (Bestall).
[99] ts 725 - ts 726 (D'Souza).
[100] Plaintiff's closing submissions, pars 8 – 20.
The second matter is the plaintiff's recollection as to where he lived in 2012 and 2013. The evidence is that between June 2012 to February 2013 he lived in Brisbane and worked for The CEO Institute Pty Ltd (The CEO Institute), and I find this to be the case.[101] However in answers to interrogatories filed in April 2016 the plaintiff said that he was 'living with his sister Geraldine and brother in-law Aubrey, on or about, April 2012 to on or about, March 2013 in Melbourne'.[102] In cross-examination, the plaintiff struggled to explain the inconsistency, and conceded he could have been wrong about the dates.[103]
[101] ts 300, ts 309 - ts 313, ts 511 - ts 512; Exhibit D8; Exhibit D9; Exhibit D15; Exhibit P27, Exhibit P39.
[102] Exhibit D7.
[103] ts 300 - ts 301, ts 305 - ts 306 (D'Souza).
The third matter is that in a curriculum vitae produced after July 2015, the plaintiff said that he was employed with The CEO Institute between June 2009 and February 2012. As I have just found, this is not the case. The plaintiff accepted that this could have been a mistake.[104]
[104] ts 667; Exhibit P53.
The fourth matter is the plaintiff's recollection of psychological counselling which he undertook in 2012. The plaintiff was asked in interrogatories whether, in the five years prior to the incident on 7 July 2015, he ever suffered from or otherwise experienced any psychological and or psychiatric symptoms or conditions. In response, he said he suffered stress and was depressed due to work‑related issues and issues with his teenage daughter which caused him to feel resentful, angry and frustrated. These symptoms occurred in about January 2012, and the duration was approximately one month.[105] Under cross‑examination, the plaintiff added that the work related issues were from his employment with The CEO Institute.[106] However, as I have already noted, the plaintiff did not commence employment with The CEO Institute until June 2012.[107] The medical evidence suggests that these consultations took place in February and April 2013 (see [179] ‑ [180] below). In cross‑examination he said could not be certain of the dates, and accepted that he could be mistaken.[108]
[105] Exhibit D7; Exhibit D49.
[106] ts 301 - ts 302 (D'Souza).
[107] ts 300 (D'Souza); Exhibit D8; Exhibit D9; Exhibit D15; Exhibit P27, Exhibit P39.
[108] ts 303, ts 309, ts 692 - ts 693 (D'Souza).
The fifth matter is his recollection of his income after 7 July 2015. After the plaintiff tendered his income taxation return for the year ending 30 June 2016, I inquired what the position was in terms of income taxation returns after 30 June 2016. The plaintiff, under oath, said:[109]
I wasn't earning anything, so I didn't sort of - I didn't do it.
Okay. So as I understand your evidence, is after 30 June - after 30 June 2016, you haven't earnt any money?‑‑‑No. I have to check and see whether I was, I'm - I'm not sure. I can't recollect it.
[109] ts 144 - ts 145 (D'Souza).
However, as is apparent from section 16.4, he was employed after 1 July 2016 and did earn significant amounts of money, which was declared in income taxation returns he subsequently found and produced to the court in response to an order which I made.[110]
[110] ts 144 - ts 150 (D'Souza).
The sixth matter is prior inconsistent statements made by the plaintiff. The plaintiff's evidence was that on 7 July 2015 the heater in the House was not on. He said that he never uses the air conditioner unless 'it's really, really hot or really, really cold', and did not like doing so.[111] However, in a statement he signed in November 2015, he said:[112]
The heater was on in the day. It was winter and the weather was cold and blustery.
In cross-examination, the plaintiff was not able to provide a satisfactory answer to this prior inconsistent statement.[113]
[111] ts 245, ts 714 (D'Souza).
[112] Exhibit D30, par 22.
[113] ts 714 - ts 717 (D'Souza).
As I have already noted ([62]), the plaintiff's evidence was that he did not notice that there was extensive dust in his House until around 11.00 pm. He gave evidence that it was after this time that he washed his bed linen, finishing cleaning up around 1.30 am the following morning.[114] However, in the November 2015 statement he said otherwise:[115]
On the same day of 8 July, 2015 at around 6:30pm, I noticed that my bed linen, sheets, pillows and quilt cover, in my main bedroom which is situated upstairs of the 2 storey residence was coated with dust particles. I removed all the bed linen and hung it outside and beat the dust off it. I then put it in the washing machine to wash it and the next day dried it in the sun. I was going up to bed when I discovered this.
(It is not in issue that the date should be 7 July 2015). Again, in cross‑examination, the plaintiff was not able to provide a satisfactory answer to this prior inconsistent statement, stating that he may have got his head muddled up with times and numbers.[116]
[114] ts 62 - ts 63 (D'Souza).
[115] Exhibit D30, par 30.
[116] ts 717 - ts 718 (D'Souza).
In an affidavit in the action sworn in February 2016, the plaintiff gave a slightly different version:[117]
On the same day 8 July, 2015, at around 9.00pm, I noticed my bed and bed linen sheets, pillows and quilt cover, in my main bedroom which is situated upstairs of the 2 storey residence was coated with saw dust. I removed all the bed linen, pillow cases and quilt cover and hung it outside to beat the dust off it. I then put it in the washing machine to soak. I washed it the next morning and dried it in the sun. I was going to bed when I noticed this.
(Again, it is not in issue that the date should be 7 July 2015).
[117] Exhibit D31, par 19.
The plaintiff was not able to provide a satisfactory explanation for either the differences in the two documents, nor the difference between what is in those documents and his evidence.[118]
[118] ts 761 - ts 762 (D'Souza).
The plaintiff gave evidence that while Mr Thake was at the House on 7 July 2015, he did not watch any TV.[119] However, in the November 2015 statement he said: 'I also watched a bit of tv downstairs'.[120] He was not able to provide a satisfactory reason for this inconsistency in cross-examination.[121]
[119] ts 758 - ts 760 (D'Souza).
[120] Exhibit D30, par 27.
[121] ts 759 - ts 760 (D'Souza).
In the November 2015 statement, the plaintiff also said:[122]
I have not been to visit the doctor for the last 5 years because I have never been sick or had the Flu and never suffered a headache or taken a Panadol or another other medication. It upsets me now that I have to visit the doctor and specialists frequently.
The last time was in 2008 because of a heart operation I needed. I had an echocardiogram then and it was fine. I did not need to have any respiratory tests pre operation. The current echocardiogram showed atrial flutter.
In cross‑examination, the plaintiff accepted that this was not true,[123] something which is clearly the case based on the medical evidence which I consider below (in section 5.2).
[122] Exhibit D30, pars 67 - 68.
[123] ts 719 - ts 720 (D'Souza).
For these reasons, I conclude that the plaintiff is not a reliable historian.
The defendants go further and assert that the plaintiff was not a credible witness.[124]
[124] First defendant's closing submissions, pars 74 ‑ 84; second defendant's closing submissions, pars 43 ‑ 52; third defendant's closing submissions, pars 13 ‑ 18.
A number of the matters going to the credibility of the plaintiff's evidence stem from his application to Bartercard Operations Aus Pty Ltd (Bartercard) for employment as a telemarketer/appointment setter.[125] This was by letter dated 4 August 2015. A curriculum vitae was attached to the letter.[126]
[125] ts 221 - ts 222 (D'Souza); Exhibit P38.
[126] ts 221 - ts 222 (D'Souza); Exhibit P38.
In the curriculum vitae, the plaintiff stated under the heading 'Skills and Attributes' that he had 'excellent health, stamina and energy'.[127] In cross‑examination, he accepted that this was not true, but said that he had to put it in.[128]
[127] ts 222 (D'Souza); Exhibit P39.
[128] ts 574 (D'Souza).
In the curriculum vitae, under the heading 'Education', he stated: '1989 - Associate Degree in Social Science, UK'. It cross-examination, he accepted that he did not have this degree, putting it in because he was desperate for the job.[129]
[129] ts 318 (D'Souza).
Under the heading 'Professional Work Experience', he included the following:
February 2013 to current
MANGO BUSINESS APPS - BRISBANE
Business Support Manager
Selling and presenting Mango Business Apps product range, benefits and features to small and medium size businesses. Communicating effectively in the area of mobile marketing and mobile web apps.
•Follow up on potential clients to finalise deals
•Generate new sales contacts via telephone, face to face and emails
•Follow up on leads generated by Web-based advertising
•Generate my own leads and closing the sale at the same time
When challenged in cross-examination in relation to this, he stated:[130]
[130] ts 317 (D'Souza).
And then finally we've got another professional work experience entry which has been drawn to my attention, Mango business apps Brisbane, February 2013 to current. That's a fabrication, isn't it?‑‑‑No, no, no. This ‑ this ‑ this was - this was a guy who was doing apps for - like - he'd put your website on the mobile phone. And he advertised for someone to go down to the restaurants and all that sort of thing. And ‑ and I - I called him and ‑ you know, I sort of talked to him about it and all that and it really - it didn't really work.
Okay?‑‑‑But - you know, I did try it out.
February 2013 to current, Mango business apps, Brisbane. Business Support Manager.
Which bit of that is true?‑‑‑Where was this ‑ for ‑ none ‑ none of it, not - not at that time. I did work for - February to current. I - well, see, with Mango business apps I was doing it like on a - on a basis where if I had - if I got in business he would give me a commission for it. So it was like an ongoing thing that - that would happen. If - if I was anywhere in - in a restaurant or anywhere I'll talk to them about it and they'll say, yeah, they were looking for some - because it was good, it was something good for restaurants at that time when I was doing it because it had a good GPS on it and so if you wanted to go to that restaurant or if you wanted to order or anything like that, you could just use the app. So it was a good thing but the people weren't ready for it yet and I - I did sell a few and it was just ongoing. It was like - you know, it was just ongoing. So it could be classified as true I mean if you look at it one way, and it's probably not true if you look at it another way sort of thing.
Well, it's not true at all. It says:
'Generate new sales contacts via telephone, face to face and emails.'
You simply didn't do any of that. It's complete fabrication?‑‑‑I just told you what I did. I did, I got sales out of it.
The plaintiff did not declare any income from Mango Business Apps in the financial years ending 30 June 2013,[131] 30 June 2014[132] and 30 June 2015.[133] Nor did he disclose any documents relating to Mango Business Apps.[134]
[131] Exhibit P27.
[132] Exhibit P28.
[133] Exhibit P29.
[134] ts 317 - ts 318 (D'Souza).
The description provided by the plaintiff in evidence bears no resemblance at all to the description in the curriculum vitae. I regard both the plaintiff's evidence and the description as being fabrications.
The curriculum vitae also includes employment from April 2009 to May 2012 in the following terms:[135]
[135] Exhibit P39, page 39.
HUMAN RESOURCES ENTYREPRENURIAL [SIC] DEVELOPMENT (HRED GROUP LTD) - SINGAPORE
Sales Training Manager
Responsible for all sales activities, from lead generation through to implementing agreed upon marketing plans which meet business goals of expanding customer base in marketing area.
•Manage sales and support teams for the achievement of customer satisfaction and reaching sales targets
•Training and tailoring exclusively to the sales and corporate industry
•Develop and detail activities to follow during the fiscal year, which focuses on meeting and exceeding sales quota
•Training sales staff in the ability to carry on a business conversation with the different business personalities and decision-makers
•Assists in the implementation of company marketing plans as needed
In cross‑examination, the plaintiff accepted that this was a complete fabrication.[136] Again, the plaintiff's explanation for the fabrication was that he was desperate to get the job with Bartercard.[137]
[136] ts 313 (D'Souza).
[137] ts 313 (D'Souza).
There is then a further statement that that between January 2005 in February 2009, the plaintiff was employed with Background Music Systems as a sales consultant.[138] Again, in cross-examination, the plaintiff accepted that this was not true, stating 'but I got the job'. In particular, the medical records before the court make it clear that there was a period between October 2006 and June 2008 when the plaintiff was unfit for work because of cardiac issues (see [172] ‑ [173] below). The plaintiff accepted that he did not work within this period.[139]
[138] Exhibit P39.
[139] ts 288 (D'Souza).
Then in a later curriculum vitae, the plaintiff said that he finished school in 2001: '2001 - High School Certificate Year 12 St Joseph's Institution, Singapore'.[140] The plaintiff was in fact aged 52 in 2001. As to his reason for doing this, the plaintiff said:[141]
And then under 'Education', you indicated that you finished school in 2001?‑‑‑Yes.
Is that correct?‑‑‑I'm not sure about the years. But what I found is that in some of the interviews that I went to that I didn't get the job, they wanted to know - they were trying to work out my age and I think once they know I'm over 70, that's - you know. So I think I just backed it a little bit in - with the - this is - this is according to when I go for interviews and the reception I get from them because it means really nothing, because when they see me and they know what I can do for them, they give me the job. But if they work it out that I'm old or - you know, they just won't bother. And I've had a lot of interviews that I sent and nothing happened. So - and I've never had a problem. No one's asked me about it or anything like that cos it really has nothing to do with the job, my age.
…
You knew that you didn't finish school in 2001?‑‑‑No, I didn't. Yeah, I knew that. Yeah. What I mean - - -
So the concern you express is you don't want to lose a job - you don't want to not get an - your fear is that if you put your age there accurately, you won't get a job because people don't like older people?‑‑‑That's exactly what has happened, your Honour, with me. And - and when I - when I do do it in such a way that I get the interview and I'm getting the job, and no one's asking me about how old I am or anything like that. So - yeah.
[140] ts 664 (D'Souza); Exhibit P53.
[141] ts 664 (D'Souza).
In that same curriculum vitae, the plaintiff states of his mediation business:
Mediation services
Worked with health and safety issues, conflict and dispute resolution in the workplace. Helping business owners through difficult areas of workplace health and safety issues that were an essential part of running their business.
Duties included were:
-Assisting business owners to understand health and safety legislation and obligations
-Explaining how and why they needed to comply with health and safety obligations
-Ensuring that health and safety matters were not overlooked
-Facilitating work employees ongoing workplace disputes, resolving disagreements.
In cross-examination, the plaintiff accepted that this was not true.[142]
[142] ts 668 (D'Souza).
The plaintiff also accepted that he told Dr Edwards-Smith that he had a lawyer, which was false.[143]
[143] ts 693 - ts 694 (D'Souza).
This material provides an ample basis for me to have significant concerns as to the credibility of the plaintiff's evidence as a whole.
The plaintiff did not put forward any matter which undermines either the reliability or credibility of Mr Bestall's evidence.
The plaintiff sought to challenge Mr Thake's evidence that he used a guillotine on 7 July 2015 on the basis of a prior inconsistent statement. This statement is contained in a letter from Mr and Mrs Thake to Mr Bestall dated 6 August 2015. This letter is an account of the events of 7 July 2015 from Mr Thake's perspective. Among other things, Mr Thake states:[144]
A table saw (with attached vacuum), a drop saw and a jig saw were used in the installation process. These tools were not used indoors at any time, only in the specified area being the carport.
[144] Exhibit P86.
The plaintiff challenged Mr Thake that he did not make reference to the use of a guillotine in this paragraph. Mr Thake responded that Mr Bestall had only asked him to explain his use of power tools.[145]
[145] ts 1144 (Thake).
In the same document, the issue of smoking was addressed:[146]
The client is a heavy smoker and chose to smoke in his carport during the installation process. He lit a cigarette in this area approx.. every 20 ‑ 25 minutes and did not seem phased to light a cigarette even when I was cutting product prior to or during his lighting up. The client wold stand approx.. 4 meters away from where I was using the tools.
[146] Exhibit P86.
The plaintiff then drew Mr Thake's attention to the comments he made about smoking in a statement dated 17 August 2016, being:[147]
Whilst at the property I observed D'Souza was a frequent smoker; I would estimate he had a cigarette every 20 - 30 mins.
[147] Exhibit P88.
And to a proof of evidence dated 8 May 2017:[148]
I estimate Mr D'Souza came into the garage on eight to 10 occasions whilst I was there, and one each occasion he stood around the side of my car smoking. I did not operate any saws whilst he was in the garage.
[148] Exhibit D61.
The plaintiff appeared to challenge the reliability of Mr Thake's recollection on the basis that his evidence (which I have quoted at [91]), was inconsistent with his earlier statements.[149] I do not accept this challenge. There is no real inconsistency between the evidence of Mr Thake and his prior statements on the topic.
[149] ts 1154 - ts 1164 (Thake).
The plaintiff also challenged Mr Thake as to why there were two versions of the 6 August 2015 letter to Mr Bestall, one having a paragraph relating to standard terms and conditions being deleted.[150] Mr Thake did not know why.[151] Mrs Thake, who prepared the letter, explained that the reference to the terms and conditions was removed at Mr Bestall's request as the plaintiff was never given a copy of Mr Thake's terms and conditions.[152] I accept this explanation. The terms and conditions referred to have no relevance to the facts in issue in these proceedings.
[150] Being exhibit P87.
[151] ts 1144 - ts 1146.
[152] ts 1251 (Thake).
There was nothing else raised in the evidence of Mr Thake which led me to have any concerns as to either the reliability or credibility of his evidence.
The net effect of the concerns I have as to the reliability and credibility of the plaintiff's evidence, and the absence of equivalent concerns with the evidence of Mr Thake and Mr Bestall, means that, where there is a conflict, I prefer their evidence to that of the plaintiff.
3.8 Findings of fact on contested issues
There are two significant contested issues. The first is how Mr Thake went about laying the Floorboards, in particular whether he used a guillotine.[153] The evidence of Mr Thake as to how he went about laying the Floorboards, including the use of the guillotine, is entirely consistent with the evidence of Mrs Thake as to how he operated when the two of them were laying laminate floorboards together.[154] It is also entirely consistent with the evidence Mr Bestall. This, together with my general observations of the reliability and credibility of the plaintiff's evidence, mean that I have no hesitation in accepting the evidence of Mr Thake over that of the plaintiff.
[153] See generally: Plaintiff's closing submissions, pars 21 - 31.
[154] ts 1250 (Thake).
Accordingly, I find that:
(a)Mr Thake used four main tools to lay the Floorboards on 7 July 2015, a guillotine, a table saw, a drop saw and a jigsaw;
(b)around 50% of the Floorboards were able to be laid without any form of cutting;
(c)Mr Thake used the guillotine to do all the straight cuts at the ends of a Floorboard;
(d)he brought the guillotine into the House to do so;
(e)the guillotine used was that in exhibit D56, which was the same guillotine used in the demonstration;
(f)around 50% of the Floorboards which were cut, were cut using the guillotine;
(g)Mr Thake used the table saw to do cuts along the full length of the boards, each cut taking 4 ‑ 5 seconds;
(h)the table saw was fitted with a tube which was connected to a vacuum cleaner so as to provide dust extraction, which Mr Thake used each time the saw was turned on;
(i)the drop saw was fitted with a dust extraction bag;
(j)Mr Thake used the drop saw to cut the scotia beading at the end of the job, with each cut taking 1 ‑ 2 seconds;
(k)he did not use the drop saw for any other cutting;
(l)Mr Thake used the jigsaw, which was battery powered, for small or delicate cuts that could not be done with the table saw;
(m)the table saw, jigsaw and drop saw were only used in the garage;
(n)when he was using power tools, Mr Thake wore safety glasses, though he did not wear a dust mask as he was using dust extractors;
(o)Mr Thake did not leave the door between the garage and the interior of the house open, closing it each time he went through;
(p)once all the Floorboards were laid, Mr Thake put all his tools back into the covered tray on his ute;
(q)Mr Thake then cleaned up, vacuuming the garage and the tiling inside the House as well as wiping down surfaces inside the House;
(r)the residual dust (having used the extraction devices) from the work was minimal, fitting into a cupped hand; and
(s)when Mr Thake left, he did not notice any visible residual dust.
The second contested issue is whether the plaintiff was smoking in the presence of Mr Bestall and Mr Thake on 7 July 2015. The evidence of Mr Bestall and Mr Thake is consistent. This, together with my general observations on reliability and credibility, mean that I have no hesitation in accepting their evidence over that of the plaintiff.
Accordingly, I find that:
(a)while the plaintiff was speaking to Mr Bestall and Mr Thake on the morning of 7 July 2015, he smoked two cigarettes;
(b)throughout the remainder of 7 July 2015 while Mr Thake was present, the plaintiff smoked six to eight more cigarettes; and
(c)he smoked the cigarettes just outside the garage of the House.
The finding that on 7 July 2015 the plaintiff smoked 8 ‑ 10 cigarettes, coupled with the reservations I have expressed as to the reliability and credibility of his evidence generally, lead me to conclude that he has not proven on the balance of probabilities that, prior to 7 July 2015, he was a non-smoker.
Events after 7 July 2015
Except where I have indicted, the facts in this part are not in issue, and I make the findings which follow.
Mr Bestall completed a Job Safety Analysis (JSA) for the Floorboard Works.[155] The JSA form was a template prepared by Barclays for the particular job.[156] Its purpose was to make sure that he assessed and addressed any health and safety risks at the House. Mr Bestall completed the JSA on the day he initially went to the House when the plaintiff selected the style of timber flooring.[157] The only risk identified was noise levels. Mr Bestall explained that the saws being used can be dangerous to the ears. Mr Bestall did not think that there was any risk of inhalable dust as he had been using this material for 30 years, and not suffered from any issues; nor had, to his knowledge, 500 or so other floorlayers in Perth.[158]
[155] Exhibit D21.
[156] ts 614 - ts 615 (Kemp).
[157] ts 990 (Bestall).
[158] ts 990, ts 1035 - ts 1037 (Bestall); Exhibit D21.
Mr Bestall then sent an invoice (dated 10 July 2015) and the JSA to Barclays, and was paid for the work. The invoice was in the name of 'Chris Bestall Flooring Contractor, ABN 26 899 741 803'. It was in the amount of $2,926, including GST.[159]
[159] ts 990, ts 1035 (Bestall); Exhibit 45.
Mr Thake sent Mr Bestall an invoice dated 7 July 2015 in the amount of $721.60, including GST. The invoice was in the name of 'Select Flooring ABN 81 852 541 945'. It contained three items: installation of laminate flooring, install scotia beading, rip-up.[160]
[160] ts 1109, ts 1139; Exhibit D63.
On 8 July 2015, the plaintiff complained to an employee of Barclays about dust left at the House after completion of the Floorboard Works. They had a couple of telephone conversations and exchanged a couple of emails.[161]
[161] ts 63, 547 - ts 548 (D'Souza); ts 625 (Kemp); ts 887 (Barclay).
The Barclays employee requested the plaintiff to provide her with some photographs of the dust, which he did by email.[162] The photographs are in evidence.[163] They depict the stairs, grand piano, television and certain floor areas covered with what I would describe as a fine layer of white coloured dust.[164]
[162] ts 64, ts 548 (D'Souza).
[163] Exhibit P2.
[164] Exhibit P2.
Around this time there was some communication between a Barclays employee and Mr Bestall in which the approval of the latter to engage a cleaning contractor was obtained.[165] There was also a conversation between Mr Bestall and Mr Thake about the latter making a contribution to the cost of cleaning.[166]
[165] ts 624 - ts 626 (Kemp); ts 992 (Bestall).
[166] ts 1168 (Thake).
On the afternoon of 8 July 2015, Barclays engaged a cleaning contractor, AZ Cleaning Services, to arrange for the cleaning of the House. It did so by issuing a supplier work order.[167] The scope of the work was to 'arrange to clean the house of all dust from flooring repairs' as soon as possible.[168]
[167] Exhibit D24.
[168] ts 625 (Kemp); ts 900 (Barclay), ts 1042 (Zappacosta); Exhibit D24.
On 9 July 2015, Andrea Zappacosta, the principal of AZ Cleaning Services, attended the House to inspect it and determine the scope of the work required.[169]
[169] ts 64, ts 550 - ts 552 (D'Souza); ts 1042 (Zappacosta).
Mr Zappacosta noticed both 'some fine builder's dust' as well as a significant amount of other dust, that is, dust which did not appear to him to be related to building works. The dust was predominantly downstairs. Mr Zappacosta could not segregate the two types of dust, so cleaned the whole of the House. He did not know the source of the dust which was not the general household dust.[170]
[170] ts 1042 - ts 1043, ts 1045 - ts 1046 (Zappacosta).
It is unclear whether AZ Cleaning Services provided a quote to Barclays after the inspection, and before commencing the cleaning.[171] Nothing turns on this.
[171] ts 626 (Kemp); ts 1043, ts 1046 (Zappacosta).
Mr Zappacosta could not do the cleaning work straight away as he had to fit it in with other work.[172]
[172] ts 1046 (Zappacosta).
9 July 2015 was a Thursday, with 11 and 12 July being the weekend.
On 14 July 2015 Mr Zappacosta and two others attended the House and performed certain cleaning works (Cleaning Works), taking approximately 10 hours between the three of them. The areas cleaned were all hard surfaces, including fixture and fitting like cabinets, skirting boards, windowsills, window ledges, glass and door frames. They also vacuumed the rugs and carpets.[173]
[173] ts 68 - ts 69, ts 552 (D'Souza); ts 1043 - ts 1044, ts 1046 - ts 1049 (Zappacosta).
At the conclusion of the cleaning, Mr Zappacosta had a conversation with the plaintiff. Mr Zappacosta's evidence was to the effect that the plaintiff was pleased with the work that had been done.[174] Mr D'Souza's evidence was that he was not happy with the work done as he could still see dust.[175] However, he did not say anything negative or critical to Mr Zappacosta about the work done.[176] I do not need to resolve this factual dispute.
[174] ts 1044 (Zappacosta).
[175] ts 68 (D'Souza).
[176] ts 553 (D'Souza).
AZ Cleaning Services subsequently submitted an invoice to Barclays for the Cleaning Works. The description of the work on the invoice was in the following terms:[177]
Remove fine wood dust from internal areas of premises, both ground and first floor levels. Surface cleaning of fittings, furniture and floors.
[177] Exhibit P5.
What symptoms did the plaintiff experience on and after 7 July 2015?
5.1 Overview
As I have already said, the plaintiff was not able to secure the attendance of his general practitioner, Dr Mustapha, or his cardiologist, Dr Clugston, at trial. This impacted on the level of detail at which the plaintiff was able to present evidence of his medical history. However, the remaining materials in evidence do allow a reasonably comprehensive picture to be developed of the medical condition of the plaintiff in the nearly five‑year period following 7 July 2015.
In order to place the plaintiff's symptoms in context, it is instructive to begin with the evidence of his health and medical history prior to 7 July 2015. As to this, I make the factual findings set out in section 5.2.
The factual findings as to the onset of symptoms on 7 July 2015 are set out in section 5.3.
The defendants did not take issue with the plaintiff's evidence as to the symptoms experienced by him during the remainder of the period to trial. Nor did the defendants take issue in cross-examination with the veracity of the symptoms which the plaintiff described to various medical practitioners; indeed they relied on these descriptions. I make factual findings for this period as set out in sections 5.4 ‑ 5.9. Specifically, I find that the plaintiff in fact had the symptoms he described to the medical practitioners which I have set out below. Many of the findings which I have made are by inference from the medical evidence which is before the court.
Section 5.10 contains a summary of the factual findings relevant to the determination of breach and causation.
5.2 Health and medical history prior to 7 July 2015
When it came to the plaintiff's medical history prior to 7 July 2015, the plaintiff was not a very reliable historian. The medical history had to be reconstructed during the course of evidence, relying primarily on Medicare records.
The plaintiff was born in Singapore on 2 October 1949.[178] At the commencement of the trial (3 March 2020) he was 70 years, 5 months old.
[178] ts 93 (D'Souza).
The plaintiff immigrated to Australia with his family in 1971 at the age of around 22, settling in Perth.[179]
[179] ts 299 (D'Souza).
The plaintiff was married for some time and has an adult daughter.[180]
[180] ts 95 (D'Souza).
The plaintiff was born with a heart defect. He did not find this out until some years later. He was a keen sportsman, playing sports like cricket, hockey, basketball and badminton, as well as doing martial arts. He noticed that when he exerted himself to his limits, he could feel that he was out of breath. He would sometimes have to stop, take a break, and allow things to get back to normal.[181]
[181] ts 94 - ts 95, ts 259 (D'Souza).
As early as 2004, the plaintiff had been suffering from upper respiratory tract infections, which were treated by antibiotics.[182]
[182] ts 709 - ts 710 (D'Souza); Exhibit D29.
There is nothing else of note in the plaintiff's medical history prior to 2006.[183]
[183] ts 263 - ts 268 (D'Souza).
In 2006 the plaintiff had an operation to repair a hernia which he sustained while engaged in martial arts.[184]
[184] ts 680 (D'Souza).
It took many years for the cause of the plaintiff's problems on exertion to be identified, including seeing many specialists.[185] It was not until 2007 when it was fixed.[186] Specifically, in December 2007, the plaintiff underwent surgery to repair a sinus venosus atrial septal defect. An atrial septal defect is a congenital cardiac anomaly characterised by abnormal opening between the atria (chambers of the heart). A sinus venosus defect is where the superior portion of the atrium fails to develop.[187] The surgery appeared to be successful from a medical perspective. The plaintiff did, however, experience some palpitations and an atrial fibrillation or flutter in the days following the surgery.[188] Atrial fibrillation is a cardiac arrhythmia (deviation from the normal pattern of the heartbeat) characterised by disorganised electrical activity in the atria, accompanied by a usually rapid, irregular, ventricular response.[189] The plaintiff described it as an atrial flutter,[190] which, medically, is a type of atrial tachycardia characterised by the heart contracting at very high rates.[191] The atrial fibrillation experienced by the plaintiff at this time settled on its own without medical intervention.[192]
[185] ts 94, ts 259 - ts 260 (D'Souza).
[186] ts 94 (D'Souza).
[187] Mosby's Dictionary of Medicine, Nursing & Health Professions (3rd ed, 2014) 153 - 154.
[188] ts 88 - ts 89, ts 283 (D'Souza); Exhibit P9; Exhibit P10; Exhibit P11.
[189] Mosby's Dictionary of Medicine, Nursing & Health Professions (3rd ed, 2014) 131, 153.
[190] ts 283 (D'Souza).
[191] Mosby's Dictionary of Medicine, Nursing & Health Professions (3rd ed, 2014) 153, 1675; ts 822 (Summers); ts 943 (Ng).
[192] Exhibit P9; Exhibit P10; Exhibit P11.
As to prognosis, Ms Tyler opined:[618]
Christopher is suffering from mental and physical symptoms in addition to ongoing worry and tension, trouble falling and staying asleep, panic attacks and restlessness and very low mood. His condition has been pervasive and enduring. The two likely reasons for this are that is mental health is closely tied to his physical health in terms of perceived quality-of-life and that he is experiencing ongoing stress related to his court case.
Psychology sessions have involved CBT, sleep hygiene and mindfulness. His condition has been relatively treatment resistant. He has started to return to a regular meditation practice and he has very slowly started light exercise under the guidance of cardiorespiratory specialist. These are both good things that will assist in his mental health recovery. It is likely that he will continue to need a minimum of 10 psychology sessions for appeared of 12 months in order to make a full recovery.
[618] Exhibit P69, page 4.
Dr Edwards-Smith also provided an opinion as to the plaintiff's prognosis in her September 2016 report:[619]
19.What is your prognosis for the claimant's condition?
I think that further treatment may improve the prognosis, particularly in respect of assisting Mr D'Souza to gain a greater understanding of the complex underpinning of his many symptoms. I also think that resolution of his legal stressors would likely facilitate a recovery.
[619] Exhibit D25, pages 12 - 13, pages 14 - 16.
In her December 2017 report, opining on prognosis, Dr Edwards‑Smith said that resolution of the plaintiff's legal case will reduce his stressors and potentially improve his function.[620]
[620] Exhibit D26, page 12.
In both her reports, Dr Edwards-Smith recommended that the plaintiff see a psychiatrist.[621] In her December 2017 report, she suggested an allowance be made of six appointments with a consultant psychiatrist at an estimate of $350 - $450 per appointment. When giving evidence at trial, she confirmed that these rates are still current. I accept her opinion and consider this to be a reasonable future medical expense. I allow $2,400 for future psychiatric reviews (6 appointments x $400).
[621] Exhibit D25, page 16; Exhibit D26, page 12.
Dr Edwards-Smith also thought it would be appropriate to make allowance for a further eight treatment sessions with the plaintiff's psychologist at an estimate of $238 per appointment (rising to $251 at trial).[622] So her opinion is more or less the same as that of Ms Tyler. I give more weight to the opinion of Dr Edwards-Smith given her expertise. I accept her opinion and consider it reasonable to allow $2,008 for future psychological treatment (8 appointments x $251).
15.5 Summary
[622] Exhibit D26, page 12.
In summary, I provisionally assess damages for future medical treatment in the amount of $11,748.
What amount should be allowed for economic loss?
16.1 The plaintiff's claim
The plaintiff asserts that he has lost the capacity to earn income as a mediator due to his asthma, extensive fits of coughing, major depression and anxiety disorder.[623]
[623] Plaintiff's particulars of damages, pt 4.2.
He claims past economic loss on the basis that he was earning $570 per week prior to 7 July 2015.[624]
[624] Plaintiff's particulars of damages, pt 4.1.
He claims future economic loss at the same rate of $570 per week. This is on the basis that but for the events of 7 July 2015, he would have been continually operating his mediation business.[625]
[625] Plaintiff's particulars of damages, pt 4.2.
The defendants' position is that the plaintiff has suffered no economic loss.
16.2 Relevant law
The fundamental principle underlying the assessment of damages is that the plaintiff is only compensated for what he has actually lost.[626] The process of assessment must be governed by considerations of practical common sense in the context of the facts of the particular case.[627]
[626] Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 19 (McHugh J).
[627] Van Gervan v Fenton (1992) 175 CLR 327, 343 (Deane & Dawson JJ); Montemaggiori v Wilson [2011] WASCA 177, [30] (Buss & Newnes JJA).
As regards economic loss, if the plaintiff can establish that his 'pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury', he 'is to be compensated by an amount that reflects the financial consequences that follow from the impairment'.[628]
[628] Husher [6] (Gleeson CJ, Gummow, Kirby & Hayne J).
The plaintiff carries the onus of proving loss of earning capacity and the extent to which that loss produces, or might produce, financial loss.[629] So the plaintiff must establish both that his injuries have resulted in a diminution of his earning capacity and that the diminution is productive of financial loss.[630]
[629] Medlin (18); Setton v Eves [2006] WASCA 3, [25] (McLure JA, with whom Steytler P & Simmonds AJA agreed); Montemaggiori [30].
[630] Husher 143 [7]; Mastaglia v Burns [2006] WASCA 190; (2006) 32 WAR 427 [89] (Martin CJ).
In many cases it is convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss'.[631] In assessing future loss, what the plaintiff earned in the past provides useful, but not determinative, guidance about what the plaintiff would have earnt if he had not been injured.[632] As the inquiry is an inquiry about the likely course of future events, evidence of past events does not always provide certain guidance about the future.[633] 'There may be many reasons why an injured plaintiff's past work history provides no assistance in deciding what that plaintiff has lost through diminution of future earning capacity'.[634] It is necessary to predict, not only what the future holds for the plaintiff, but also what the future would have held for the plaintiff had he not been injured.[635] Where there are too many imponderables to make any precise calculation of the damages to be awarded for the loss of earning capacity a global amount may be awarded.[636]
[631] Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, 346 - 347 (Dixon CJ, Kitto & Taylor JJ).
[632] Husher [8].
[633] Husher [8].
[634] Husher [8].
[635] Paul v Rendell (1981) 34 ALR 569, 571 (Lord Diplock); Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 [178] (Malcolm CJ, with whom Murray & Parker JJ agreed).
[636] Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145, 157 ‑ 158 (Aickin J); Panizza v Moir [2009] WADC 110; (2009) 64 SR (WA) 166, [86] (Stone DCJ).
Where an injured plaintiff earns income though a business, it is the net after tax income of the business which forms the basis of the assessment of damages.[637]
16.3 Employment history prior to 30 June 2015
[637] Kittelty v Davies [2011] WADC 1 [261] (Derrick DCJ).
The plaintiff has been on and off unemployment benefits at various points in his working life.[638]
[638] ts 261 - ts 262 (D'Souza).
After immigrating to Perth in 1971, the plaintiff's employment included work as a musician, as a courier and in hospitality.[639]
[639] ts 579, ts 674 - ts 675 (D'Souza).
In around 1995, the plaintiff moved to Sydney where he had a printing business.[640]
[640] ts 299, ts 508, ts 677 - ts 678 (D'Souza).
Around 1998 the plaintiff moved back to Perth.[641] Between then and 2009 he worked for periods as a salesman for home security and background music systems.[642] As I have already found, during this period he had long periods of time where he was off work for medical issues (see [173]).
[641] ts 299 (D'Souza).
[642] ts 288, ts 316 (D'Souza).
Around 2009 and 2010 the plaintiff was conducting an alternative medicine clinic from his home.[643]
[643] ts 680 - ts 681 (D'Souza).
In about June 2011 the plaintiff obtained employment at a retreat in Maleny, Queensland. He was in this employment for six months, leaving because he did not like the ethics and commercial approach taken at the retreat.[644]
[644] ts 298 - ts 300, ts 304 - ts 305, ts 681 - ts 682, ts 851 - ts 852 (D'Souza).
The plaintiff's next employment was with The CEO Institute in Brisbane as an appointment setter between June 2012 and February 2013 (see [100]).[645] The employment was on a casual basis.[646] His employment with The CEO Institute was terminated for what the plaintiff described as a personality clash.[647]
[645] ts 300, ts 309 - ts 313, ts 852; Exhibit D8; Exhibit D9; Exhibit D15; Exhibit P27, Exhibit P39.
[646] ts 300, ts 309 (D'Souza); Exhibit D8; Exhibit D9; Exhibit D15.
[647] ts 302 - ts 303, ts 575 (D'Souza).
In August 2012, the plaintiff undertook some mediation training in Brisbane. The result of this training was that he was recommended for national mediator accreditation.[648]
[648] ts 134, ts 303 (D'Souza); Exhibit P23.
Whilst in Brisbane, the plaintiff also worked for Global Markets Australia Pty Ltd. This is an index trading company for shares and stock markets. The plaintiff's role was to talk to people and give them information. He left because he was having problems with the team manager.[649]
[649] ts 525 - ts 526 (D'Souza).
The plaintiff was also employed for a short time with Telemarketing Resources Pty Ltd as a telemarketer. He left as he was of the view that the environment was not good.[650]
[650] ts 526 (D'Souza).
In the financial year 1 July 2012 to 30 June 2013, the plaintiff earned taxable income of $35,551.[651] The employers listed were as follows:
[651] ts 142, ts 526 (D'Souza); Exhibit P27.
Employer
Gross
Tax Withheld
Net
Global Markets Australia Pty Ltd
$3,850
$267
$3,583
Telemarketing Resources Pty Ltd
$421
$90
$331
The CEO Institute Pty Ltd
$28,328
$4,887
$23,441
$27,355
He also received a Newstart allowance in the amount of $3,612, and had some minor deductions.
After leaving The CEO Institute in February 2013 the plaintiff moved to Adelaide in order to work as a mediator, spending some time on the way with his sister in Melbourne.[652]
[652] ts 306, ts 508, ts 853 (D'Souza).
The plaintiff was accredited as a mediator under the National Mediator Accreditation System through LEADR for the period from 21 August 2014 to 21 August 2016.[653]
[653] Exhibit P24.
In November 2014, the plaintiff undertook further mediation training and was again recommended for national mediator accreditation.[654]
[654] Exhibit P24.
Whilst in Adelaide, from around April 2014, the plaintiff placed advertisements in public places for his mediation services. He was doing mediation work for about six to eight months. He did not charge people, but did accept donations.[655]
[655] ts 134 - ts 135, ts 307 - ts 308, ts 512, ts 696 (D'Souza); Exhibit P57; Exhibit P58; Exhibit P59.
The plaintiff provided a schedule to the effect of that between April 2014 and June 2015 he had engaged in a number of mediations. The mediations appeared to be of a family dispute nature, with the parties recorded by their first names.[656] He started charging small amounts of money, and increased his rate as he became more confident.[657] He viewed the work done in Adelaide as work experience.[658] Piecing together this evidence with the medical records, it appears that the mediation work done in 2014 was done when the plaintiff was residing in Adelaide, and the mediation work in 2015 was done when he was residing in Perth.[659]
[656] Exhibit P26.
[657] ts 307 (D'Souza).
[658] ts 306 - ts 307.
[659] ts 528 - ts 529 (D'Souza).
The plaintiff returned to Perth at the end of 2014.[660]
[660] ts 307 (D'Souza).
From around the beginning of 2015, the plaintiff placed advertisements in community newspapers advertising as an accredited mediator, 'divorce/ separation'.[661]
[661] ts 239 - ts 240 (D'Souza); Exhibit P57; Exhibit P58; Exhibit P59.
In his advertisements, the plaintiff described himself as a registered 'FDRP'. This is a reference to a Family Dispute Resolution Practitioner. FDRPs are governed pursuant to the Family Law (Family Dispute Resolution Practitioners) Regulation 2008 (Cth). There was no evidence before the court to the effect that the plaintiff was in fact a registered FDRP, and I find that he is not. Rather, it became clear in cross-examination that the plaintiff had no idea whatsoever what a registered FDRP was. He genuinely believed that he was a registered FDRP by virtue of the training he had done.[662]
[662] ts 510, ts 530 - ts 540, ts 580 - ts 592 (D'Souza).
In the financial year ending 30 June 2014, the plaintiff undertook five mediations in April, five mediations in May and five mediations in June. He earnt a total of $1,140.[663]
[663] ts 569 - ts 570 (D'Souza); Exhibit P26.
In the financial year 1 July 2013 to 30 June 2014, the plaintiff earned taxable income of $4,484. This comprised a Newstart allowance of $4,509 with some minor deductions.[664] It is apparent that he did not declare the income he earned from his mediation practice in the first six months of 2014. The plaintiff said that this was because he treated the money he received as a donation as he felt he was only doing the mediations as work experience.[665]
[664] ts 142, ts 526 (D'Souza); Exhibit P28.
[665] ts 142 - ts 143, ts 527 - ts 529 (D'Souza).
The plaintiff accepted that his mediation business made a loss each month while he was in Adelaide.[666]
[666] ts 701 (D'Souza).
The plaintiff gave evidence that in the financial year ending 30 June 2015, he undertook six mediations in July 2014, six mediations in August 2014, six mediations in September 2014, five mediations in October 2014, six mediations in November 2014, four mediations in December 2014, five mediations in January 2015, six mediations in February 2015, six mediations in March 2015, seven mediations in April 2015, seven mediations in May 2015 and four mediations in June 2015. For this work his net income was $29,500.[667]
[667] ts 567 - ts 571 (D'Souza); Exhibit P26.
The plaintiff turned 65 on 2 October 2014, and obtained an aged pension around that time.[668]
[668] ts 146, ts 534 (D'Souza).
The plaintiff gave evidence that he knew he could earn up to $30,000 before he would have to relinquish his pension, which was his plan.[669]
[669] ts 136, ts 536 - ts 537 (D'Souza).
The plaintiff accepted that his mediation business made a loss each month while he was back in Perth.[670]
[670] ts 701 - ts 703 (D'Souza).
In the financial year 1 July 2014 to 30 June 2015, the plaintiff had a taxable income of $5,103. This comprised an aged pension from 19 November 2014 in the amount of $11,960, some interest and a business loss of $6,915. The loss comprised business income of $29,500 less expenses of $36,415. The business income was from the plaintiff's mediation practice. The major components of the expenses were rent and motor vehicle expenses.[671]
16.4 Employment history post 1 July 2015
[671] ts 143, ts 534 - ts 535, ts 568 (D'Souza); Exhibit P29, Exhibit P40.
The plaintiff considered that he was not well enough to undertake mediation work after 7 July 2015:[672]
At that time I couldn't even exercise. I tried to exercise. I tried to do what I was doing and I couldn't. I was short of breath. I was coughing a lot. In a mediation I felt that I wasn't comfortable to go through a three‑hour mediation, having people sit in front of me and coughing in front of them and, you know, not feeling too good and all that. And then it started growing into, you know - it started getting worse. So it gradually started really sort of happening. With Bartercard and with all the other jobs, I didn't have to worry about having anyone in front of me for a length of time.
…
Now, I might be able to understand why you couldn't charge someone $1,500 each for a mediation like you charged the last customers you had that we know about if you were coughing, but you didn't even attempt to go back to the $400, $600 type services that you were giving prior to that time?‑‑‑Yes, that's correct. It wasn't about what I was charging. It was about my service. It was about whether I could perform a service. Whether I had the capability to take it right through. Whether I, you know, could handle it. And that's the reason. I wasn't comfortable with it. I wasn't confident with doing it in the state I was in with my health.
[672] ts 573 - ts 574 (D'Souza).
As I have already referred to (section 3.7), by letter dated 4 August 2015 the plaintiff applied for employment with Bartercard as a telemarketer/ appointment setter.[673] He did so because he 'needed a job desperately' as all his pension went on his rent. The job he applied for was in Cockburn, near where he lived. After doing some training at the office in Wangara, the plaintiff was advised that the job he would be doing was not an appointment setter, but a salesperson. Also, he would be working from Wangara, not Cockburn.[674]
[673] ts 221 - ts 222, ts 319 - ts 321 (D'Souza); Exhibit P38.
[674] ts 222 - ts 223 (D'Souza).
In the end, between 7 August 2015 and 31 August 2015 the plaintiff was employed full-time by Bartercard as a sales consultant.[675] The plaintiff advised the management of Bartercard by email dated 31 August 2015 that he would be giving notice as of that date. He left because of a dispute with his wages, a concern that people he was talking to did not have anything positive to say about Bartercard and he was finding it 'daunting' to travel from where he lived to Wangara where Bartercard had its office.[676]
[675] Exhibit D10.
[676] ts 576 - ts 577, ts 593 (D'Souza); Exhibit D16.
In the financial year 1 July 2015 to 30 June 2016, the plaintiff had a taxable income of $24,416. The income comprised an aged pension in the amount of $21,897 and salary from Bartercard in the amount of $3,148 (with tax of $468 withheld). Some minor deductions were claimed.[677]
[677] ts 144, ts 218 - ts 219 (D'Souza); Exhibit P30, Exhibit P34.
In the financial year 1 July 2016 to 30 June 2017, the plaintiff had a taxable income of $21,392, being an aged pension.[678]
[678] Exhibit P35.
For a number of weeks between June and August 2017, the plaintiff was employed with Copyworld Toshiba. He had initially applied for a telemarketing job, but ended up being employed as a telemarketing supervisor. The position was for four short days per week.[679]
[679] ts 147, ts 224 - ts 225, ts 595 - ts 598 (D'Souza); Exhibit P41.
The plaintiff left Copyworld Toshiba due to a dispute as to pay and commissions. He also said that he did not feel like he was able to work.[680]
[680] ts 234, ts 597 - ts 599 (D'Souza).
For about three weeks in June 2018, the plaintiff was employed with Oz Eco Group Pty Ltd (Oz Eco) in a telemarketing role.[681]
[681] ts 235 - ts 236, ts 599 - ts 600 (D'Souza); Exhibit P56.
The plaintiff left Oz Eco because he got into conflict with his manager for taking too many breaks. He said that the office was not clean, and felt he needed to go outside every half an hour or so.[682] He did not feel like he was able to work.[683]
[682] ts 235 - ts 236, ts 600 (D'Souza).
[683] ts 234 (D'Souza).
Between 15 September 2017 and 4 October 2017, the plaintiff was employed with Solar Naturally Pty Ltd (Solar Naturally). His hourly rate was $21. The plaintiff earned $1,592, with $56 tax withheld. The plaintiff applied for this job as he still needed some extra income.[684]
[684] ts 225 - ts 227, ts 599 (D'Souza); Exhibit P42, Exhibit P43.
The plaintiff left Solar Naturally because he found the office environment to be claustrophobic, and felt unwell, so could not work there anymore.[685]
[685] ts 227, ts 234, ts 599 (D'Souza).
In the financial year 1 July 2017 to 30 June 2018, the plaintiff had a taxable income of $32,462. Of this, $22,805 was from his aged pension. Three employers were identified:[686]
[686] ts 219 - ts 220 (D'Souza); Exhibit P36.
Employer
Gross
Tax Withheld
Net
Oz Eco Group Pty Ltd
$2,831
$358
$2,473
Copyworld Toshiba WA
$5,234
$72
$5,162
Solar Naturally Pty Ltd
$1,592
$56
$1,536
$9,171
Between 1 August 2018 and 5 March 2019, the plaintiff was employed with Freedom Photography Group Pty Ltd (Freedom). Intially this was a telephone booking consultant, but it became a job as a business development manager. He was working three days week. His hourly rate was $25.99. He earnt a total of $11,035, with $596 tax withheld.[687]
[687] ts 227 - ts 233, ts 600 - ts 604 (D'Souza); Exhibit P44; Exhibit P45; Exhibit P46; Exhibit; P47; Exhibit P48; Exhibit P49.
Freedom terminated the plaintiff's employment in the context of a dispute over commissions.[688]
[688] ts 603 - ts 604 (D'Souza).
Between 11 March 2019 and 30 June 2019, the plaintiff was employed with Shine Tech Solar Pty Ltd (Shine Tech). His role was an appointment setter, working three days a week. His hourly rate varied between $24 and $30. He earnt a total of $9,045, with $2,526 tax withheld.[689]
[689] ts 147, ts 234 - ts 235, ts 604, ts 663 (D'Souza); Exhibit P 50; Exhibit P51; Exhibit P52.
The plaintiff was sacked from Shine Tech because he was taking too many breaks outside. The plaintiff also said that he did not feel like he was able to work.[690]
[690] ts 234, ts 663 (D'Souza).
In the financial year 1 July 2018 to 30 June 2019, the plaintiff had a taxable income of $42,580. Of this, $21,250 was from his aged pension. Two employers were identified:[691]
[691] ts 220 (D'Souza); Exhibit P37.
Employer
Gross
Tax Withheld
Net
Freedom Photography Group Pty Ltd
$11,035
$596
$10,439
Shine Tech Solar Pty Ltd
$9,045
$2,526
$6,915
$16,958
There was also an eligible termination payment of $1,250 from Freedom Photography Group Pty Ltd, making the net income $18,208.
The plaintiff gave evidence of applying for a couple of other jobs after 7 July 2015, which applications were not successful.[692]
[692] ts 236 - ts 237 (D'Souza).
The plaintiff remains on the aged pension of around $1,000 per fortnight.[693] He is not currently working.[694]
16.5 Findings on economic loss
[693] ts 146 (D'Souza).
[694] ts 146 (D'Souza).
The plaintiff has not satisfied me on the balance of probabilities that his respiratory and psychological symptoms resulted in a diminution of his earning capacity that is productive of financial loss. This is for five reasons.
The first is that the plaintiff has in fact earnt more in two of the three financial years after 7 July 2015 than he did in the two financial years prior to 7 July 2015:
Year Net employment / business income per annum Net employment/ business income per week 2012 - 2013 $27,355 $526 2013 - 2014 $0 $0 2014 - 2015 ($6,915) ($132) 2015 - 2016 $2,680 $51 2016 - 2017 $0 $0 2016 - 2017 $9,171 $176 2017 - 2018 $18,208 $350
The second is that there is no expert medical evidence to the effect that the plaintiff's respiratory or psychological symptoms (or even his cardiac symptoms) precluded him from working during the period from 7 July 2015 to the date of the trial. Dr Ng declined to make a formal assessment on the plaintiff's ability to work.[695] To the contrary, as at September 2016, Dr Edwards-Smith did not consider that the plaintiff had an incapacity for work based on his psychological symptoms.[696] She observed:[697]
I think there is some discrepancy between Mr D'Souza's self‑report of his ability, in other words that he cannot work due to his symptoms and his ability to obviously draft legal documents and represent himself in his current litigation with 3 defendants.
[695] Exhibit P82, page 5.
[696] ts 644 (Edwards-Smith); Exhibit D25, page 15.
[697] Exhibit D25, page 15.
The third is that I am not persuaded on the balance of probabilities that the reason why the plaintiff left the employment he had following 7 July 2015 was because of his respiratory, cardiac and/or psychological symptoms. Rather, the pattern after 7 July 2015 of short term employment followed by a parting of company based on differences of opinion is one which is evident in the plaintiff's employment history prior to 7 July 2015.
The fourth is that where the plaintiff did obtain employment after 7 July 2015, he did so on the basis of misleading his employer as to either his age or qualifications (see [113] ‑ [125]). It is a fair inference that the approach he used with Bartercard and in his second curriculum vitae was used with all his job applications. I am not satisfied that had the plaintiff been honest about his age and qualifications, he would have been able to have obtained any employment, notwithstanding his respiratory and psychological symptoms.
The fifth is that as the plaintiff is not a registered FDRP. For all practical purposes he cannot conduct mediations in family disputes. This is because only a registered FDRP can conduct a 'family dispute resolution' and file a certificate in relation to family dispute resolution.[698] Even when he was undertaking mediation work in 2014 and 2015, his mediation business was making a loss. I am not satisfied that the plaintiff would, or could, have undertaken a mediation business that would have made a profit.
[698] Family Court Act 1975 (Cth) s 10F, s 60I. See also: Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth).
For these reasons, had I found one or more of the defendants liable to pay damages to the plaintiff, I would not have allowed any damages for past or future economic loss.
What amount should be allowed for general damages?
17.1 Plaintiff's claim
The plaintiff claims that as a result of the injuries he sustained arising from the events of 7 July 2015 he has ongoing restrictions to his daily life and enjoyment of life.
The plaintiff says that, as a result of the fault of the defendants, he:[699]
(a)has difficulty exercising;
(b)is unable to play badminton weekly;
(c)is unable to participate in and enjoy Latin American dancing (which he partook twice a week prior to 7 July 2015);
(d)stopped swimming; and
(e)is unable to train in martial arts,
all of which he had been enjoying before 7 July 2015.
[699] Second re-amended statement of claim, par 66A(n), pars 78 - 80.
In terms of the impact of his mental health conditions, the plaintiff asserts that:[700]
(a)this is interfering with his personal life, including work and social relationships; and
(b)he is filled with anxiety and dread and lies awake each night with an 'uneasy sense of dread' about his career as a successful accredited family law mediation practitioner.
[700] Second re-amended statement of claim, pars 66A(u), 66A(v).
In his Particulars of Damages filed 26 June 2016 the plaintiff makes separate claims in respect of his asthma, atrial flutter, depression, generalised anxiety disorder and reduced life expectancy. However, the proper way to assess general damages is to consider the plaintiff's symptoms and impairments as a whole.
The plaintiff also says that he lives in fear of developing lung cancer.[701]
[701] Second re-amended statement of claim, pars 76, 77, 82 and 82A.
The defendants' position is that the symptoms and impairments complained of are ones which the plaintiff would have incurred in any event given his pre-existing medical conditions. However, for the purposes of a provisional assessment, and given the assumptions I have made, I put the defendants' position to one side.
17.2 Relevant law
General damages are ordinarily awarded to compensate for pain and suffering and other non‑pecuniary loss.[702]
[702] MR & RC Smith Pty Ltd [113] (Pullin JA, with whom Newnes JA agreed & Murphy JA generally agreed).
The amount of damages must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation.[703] The amount must be proportionate to the injuries received and the disabilities suffered by the plaintiff.[704]
[703] Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (judgment of the court).
[704]Planet Fisheries (125); Houlahan [108]; Winiarczyk [71].
The age of the injured person will be relevant because if the pain and suffering or loss of amenities will be borne for a relatively short time, then the award will be less than the award for a person who has to bear the pain and suffering and loss of amenities over a longer period of time.[705]
[705] M R & R C Smith [128].
Damages for non-pecuniary loss in this case are limited by the provisions of CLA s 9, s 10 and s 10A. 'Non‑pecuniary loss' is defined to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.[706] By s 10A, in determining damages for non-pecuniary loss, the court may refer to tariffs for damages in earlier decisions of this or other courts for the purpose of establishing the appropriate award.[707] The parties to proceedings or counsel may bring the court's attention to awards of damages in earlier decisions.[708] This provision is a statutory overruling of Planet Fisheries Pty Ltd v La Rosa where the High Court said that whether or not an award of general damages is excessive is not a matter to be resolved by reference to a norm or standard to be derived from a consideration of amounts awarded in a number of other specific cases.[709] Section 10A allows reference to authorities which might provide guidance about the appropriate level of general damages.[710] As a general principle, 'in order to treat plaintiffs fairly, like cases must be treated alike'.[711]
17.3 Assessment of damages for pain and suffering and loss of amenities of life
[706] CLA s 9(4).
[707] CLA s 10A(1).
[708] CLA s 10A(2). See generally: Hannell v Amaca Pty Ltd [2006] WASC 310 [333] - [336] (Le Miere J); MR & RC Smith [131] - [133].
[709] Planet Fisheries (124) - (125) (Barwick CJ, Kitto and Menzies JJ); MR & RC Smith [116].
[710] MR & RC Smith [125].
[711] MR & RC Smith [128].
The plaintiff gave evidence that there are a number of activities which he regularly undertook prior to 7 July 2015, which he does not now undertake:[712]
Are there any activities that you were doing prior to July 2015 that you're - that - that - that you're not doing now?‑‑‑Well, it is the most important - the most - the most - the critical thing is that every time I attempt to do something that I did before it drains me that I can't do it. So there's a - there's a - there's such a mental block that's like I'm being held up. I - I haven't even touched a piano and I've tried to sit on that piano and play because I do want to play the piano. And I don't know what happens inside me that prevents me from playing. I don't know whether it's because I can't play it well because of how I'm feeling or whether - I don't know. I really don't know and that's the worst thing. That's - I have this dreaded feeling inside me and I don't know what's going on. And when I go to the psychologist to ask them, they ‑ like ‑ want me to tell them what's going on ‑ like ‑ you know, 'How do you feel about this? How do you feel about that?' And ‑ ‑ ‑
So - so just in terms of some specifics, you - you gave evidence earlier that before 7 July 2015 you were doing ballroom dancing, I think, or doing - doing dance classes ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ twice a week. Are you doing that now?‑‑‑Absolutely not.
Are you doing your martial arts?‑‑‑No.
Are you doing badminton?‑‑‑No. And that's the worst thing. I used to enjoy that so much because it was a - like a social, competitive sport.
[712] ts 240 - ts 241 (D'Souza).
As I have discussed above, although the plaintiff's asthma symptoms are likely continue ([598]), the prognosis for his psychological symptoms is much more positive, with both Dr Edwards‑Smith and Ms Tyler predicting a full recovery within a year or so (the former based on the number of appointments suggested, the latter expressly). The resolution of stress associated with the current action will facilitate this ([605] ‑ [607]).
In my view, an amount of $30,000 is fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation.
17.4 Loss of expectation of life
There is one aspect of the plaintiff's claim that warrants separate attention. This is his claim that as a result of exposure to a carcinogen, he is faced with the possible risk of developing lung cancer in the years to follow. He also claims more generally that the severe impact that his physical and psychological symptoms have had on his life is likely to shorten his life expectancy.[713]
[713] See generally: Second re-amended statement of claim, pars 76, 77, 82 and 82A; Particulars of damages, pt 1.5.
It is open for the court to award damages for loss of expectation of life. It is dependent on the injury caused and the age of the plaintiff at the time. It is a loss of a measure of prospective happiness, but not compensation for the mental distress due to the realisation of that loss. So it is an objectively determined amount, additional to that awarded for pain and suffering and loss of the enjoyment and amenities of life. However, any award of damages under this head is to be moderate or nominal, with the authorities supporting a conventional award of $15,000.[714]
[714] See generally: Benham v Gambling [1941] 1 All ER 7, 13 (Viscount Simon); Sharman v Evans (584) (Gibbs & Stephen JJ); Hannell v Amaca Pty Ltd [347] - [351] (Le Miere J); Easther v Amaca Pty Ltd [2001] WASC 328 [87] ‑ [88] (Scott J); McGilvray v Amaca Pty Ltd [2001] WASC 345 [24] (Pullin J).
Damages for curtailment of expectation of life is a non-pecuniary loss for the purposes of the CLA.[715]
[715] CLA s 9(4)(d).
In the present case, there is no evidence that the plaintiff's respiratory or psychological symptoms have reduced his life expectancy. I make no award for loss of expectation of life.
17.5 Summary
The amount I would provisionally assess all aspects of general damages or damages for non-pecuniary loss is $30,000.
The CLA by s 9 provides for this amount to be reduced. As at the date of judgment,[716] no damages for non-pecuniary loss are to be awarded if those damages are assessed to be $22,000 or less. If the amount of non‑pecuniary loss is assessed to be more than $22,000, but not more than $64,500, then the amount of damages awarded for non‑pecuniary loss is the excess of the amount so assessed over $22,000. If the amount of non-pecuniary loss is assessed to be more than $64,500, but less than $86,500 (which is the sum of $22,000 and $64,500), then the amount of damages awarded for non-pecuniary loss is the excess of the amount over the amount calculated as follows: $22,000 - (assessed amount - $64,500).
[716] Amount A and Amount C in CLA s 9 are specified by the Minister in the Government Gazette: CLA s 10. Amount A is currently $22,000 and Amount C is $64,500 (Government Gazette, (No 101), 5 July 2019, page 2664).
So damages for non-pecuniary loss is limited to $8,000, being the excess of the amount assessed over $22,000 from $30,000.
In summary, I provisionally assess damages for non-pecuniary loss in the amount of $8,000.
What final orders are appropriate?
For the reasons set out in this decision, I find that no defendant breached the duty of care owed to the plaintiff. Even if one or more did, I would have found that the breach did not cause the plaintiff's cardiac, respiratory or psychological symptoms. Nor is there any liability for a breach of an occupational health and safety obligation.
By notice of contribution dated 15 August 2019, the second defendant claimed an indemnity against the third defendant. By notice of contribution dated 15 January 2020, the third defendant claimed an indemnity against the second defendant, and in the alternative, a contribution pursuant to CNTC Act s 4(1). On the evidence before the court, I have found that there is no basis for attributing any fault to any defendant. There is thus no rational basis on the evidence for me to apportion that fault between any of the defendants. So I decline to do so.
Had I found that one or more of the defendants caused the plaintiff's respiratory and psychological symptoms, I would have assessed the plaintiff's damages in the amount of $19,748, comprising future medical expenses of $11,748 and general damages of $8,000.
The appropriate order is that the plaintiff's claim against each of the first defendant, second defendant and third defendant be and is hereby dismissed.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate
19 JUNE 2020
5
30
4