Ferla v Piazzanova Piazza Pty Limited

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-17-00738

EUGENE FERLA	Plaintiff
v
PIAZZANOVA PIAZZA PTY LIMITED (ACN 147 718 385)	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2021, 1, 2 and 4 March 2021 (Judicial mediation conducted by his Honour Judge Brookes on 26 February 2021)
DATE OF JUDGMENT:	7 December 2021
CASE MAY BE CITED AS:	Ferla v Piazzanova Piazza Pty Limited
MEDIUM NEUTRAL CITATION:	[2021] VCC 1951

REASONS FOR JUDGMENT
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Subject:NEGLIGENCE
Catchwords:              Proceeding for damages pursuant to the provisions of the Wrongs Act 1958 – plaintiff falling off bike in area owned and occupied by the defendant – injuries essentially to the left arm – issues of liability, contributory negligence and damages
Legislation Cited:      Wrongs Act 1958; Part VB and Part X
Cases Cited:Victorian WorkCover Authority (Vic) v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412; Griffiths v Kerkemeyer (1977) 139 CLR 161; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Chapman v Hearse (1961) 106 CLR 112; Erickson v Bagley [2015] VSCA 220
Judgment:                  Judgment for the plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards QC with Ms C Spitaleri	Arnold Thomas & Becker
For the Defendant	Ms J Cooper	Norris Coates

HIS HONOUR:

Introduction
1This proceeding is brought by Mr Eugene Ferla, who I shall refer to as “the plaintiff”, against ultimately Piazzanova Piazza Pty Limited, which I shall refer to as “the defendant”, in both negligence and breach of statutory duty pursuant to the provisions of s14B of the Wrongs Act 1958 (Vic) (“the WA”). It is alleged that such negligence and/or breach of statutory duty caused personal injury to the plaintiff.
2There is no issue that the defendant was the owner/occupier of premises known as “the Piazza” situated at 429-437 Docklands Drive, Docklands (“the premises”).
3In particular, the plaintiff alleges that on or about 25 February 2014, he was riding his pushbike through the premises when “he suddenly met with a large drop in the piazza, causing [him] to fall down the drop and from his bike”[1] (“the incident”), resulting in injuries to his non-dominant left upper limb, including the elbow, scarring to facial tissues, injury to his teeth and some degree of psychiatric sequelae.
[1]Joint Court Book (“JCB”) 20
4Leading up to the hearing of the proceeding, there have been various amendments to the Statement of Claim, mainly reducing the initial three defendants to the one defendant as now pleaded.
5In his Statement of Claim, the plaintiff alleges the following particulars of negligence and/or breaches of duty:
(a)   failing to demarcate between the different levels of the Piazza;
(b)   installing and permitting the use of synthetic grass, giving the impression of a slope, rather than a drop;
(c)   permitting a hidden trap on the premises in respect of the drop;
(d)   failing to remove the hidden trap on the premises in respect of the drop;
(e)   failing to warn of the significant drop;
(f)    failing to design or design safely the premises;
(g)   failing to redesign the premises to ensure it was safe for cyclists using the premises.
6Section 14B of the WA relevantly provides:
“(3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
(4) Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(fa)whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb) whether the person entering the premises is engaged in an illegal activity;
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.”

7Senior Counsel for the plaintiff made reference to Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd,[2] wherein Beach J (as he was then) observed that s14B of the WA –
“… redefines the common law duty owed by an occupier of premises, setting out matters to be taken into account in determining the scope of the duty and whether the duty has or has not been discharged in a particular case.”[3]
[2][2012] VSC 412
[3](ibid) at paragraph [5]
8The proceeding is governed by the provisions of the WA and there is no issue the plaintiff obtained a Certificate of Assessment from the general surgeon, Mr Kenneth Brearley, dated 28 September 2017, permitting the plaintiff to make a claim for non-economic loss damages ꟷ that is, damages for pain and suffering and loss of enjoyment of life ꟷ in this proceeding.
9By way of its original Defence, delivered on 16 April 2019, the defendant denies that it was either negligent or breached its statutory duty of care and, in any event, alleges contributory negligence on behalf of the plaintiff, which consisted of the following particulars:
(a)   failing to control his bicycle;
(b)   failing to ride his bicycle in areas designated for bicycles;
(c)   failing to take reasonable care for his own safety.
10After the matter had commenced on 25 February 2021, counsel for the defendant made application to amend the Defence. Such proposed Amended Defence had been forwarded to those acting for the plaintiff several days earlier, with no response. The amendment consisted of adding a further six allegations of contributory negligence. They are:
“(d)Choosing to ride his bicycle over the drop;
(e)Failing to watch where he was going;
(f)Failing to dismount at the edge of the drop;
(g)Failing to slow down sufficiently to assess the drop;
(h)Ignoring the presence of bollards, trees and tactiles at the edge of the drop;
(i)Failing to us the bicycle ramps available.”[4]
[4]Amended Defence, pages 2-3

11Those acting for the plaintiff objected to the Defence being amended at that time. Argument ensued on the afternoon of 25 February 2021.[5] The following day, the matter was referred for mediation and on the following Monday, 1 March 2021, I ruled that the defendant could amend its Defence to include the various particulars of contributory negligence that it now seeks to rely on.[6]
[5]See Transcript (“T”) at page 60
[6]See Ruling at T80-86
12If the plaintiff does establish the liability of the defendant, the following damages are sought to be recovered:
(a)   general damages, including pain and suffering and loss of enjoyment of life;
(b)   past medical expenses amounting to $3,900;
(c)   a sum of money for future medical and like expenses;
(d)   both past and future gratuitous care – such damages being based on the principles enunciated in the High Court case of Griffiths v Kerkemeyer.[7]
[7](1977) 139 CLR 161
13The plaintiff makes no claim for loss of earnings as he was only off work for about five or six weeks, during which time he was paid by the family company.
14Counsel for the defendant informed the Court that the issue was “essentially a breach of duty – whether there is negligence is the major issue”. In this respect, Ms Cooper pointed out that the large steps or the tiered seating that the plaintiff rode down on his bike were not intended as a pedestrian or cyclist thoroughfare. Ground had been provided on either side of the thoroughfare to permit pedestrian traffic on steps provided and on the other side a bike ramp for riders to continue riding through the premises.
15The defendant submits that reasonable steps had been taken to make the edge obvious, there were bollards, there were trees and a change in surface colour. In such circumstances, so it was submitted, it was not reasonably foreseeable on the part of the defendant, that the plaintiff would attempt to ride his bike over the edge. Counsel also noted that there would be evidence that there were no prior complaints about the area where the incident occurred.

The evidence of the Plaintiff
16The plaintiff is a forty-four-year-old[8] married man with two children, who has lived in Northcote since about 2011. He is presently employed as a financial planner and accountant in a family company, PFF Financial, in offices situated at 20 Convention Centre Place, South Wharf (“Docklands”). He is naturally right handed.
[8]Born February 1977
17After qualifying with a Bachelor of Accounting degree from RMIT University in about 1998, the plaintiff commenced work with the family company, PFF Financial, and remained there until about 2003, after which he worked for a couple of years in a small merchant bank in Melbourne. He then moved to Sydney in around 2005/2006, and remained in Sydney until about 2010, during which time he was working for the National Australia Bank. After that, he returned to Victoria and has resided in Northcote since then.
18He married his wife, Katherine, in about 2009 and from that relationship came two children, Florence, born in 2010, and Rocco, born in 2012.
19The plaintiff gave evidence that prior to the incident on 25 February 2014, he rode his pushbike regularly. Since moving back to Northcote, he generally rode his pushbike from his home to and back to his place of work in Docklands – save for wet days, which increased risks when riding. He also rode his bike for general exercise, to improve his fitness and generally for recreation.
20The plaintiff also gave evidence that prior to the occurrence of the incident, he had, in particular, these interests:
(a)   As a child he rode dirt bikes and in his early twenties started riding a motorbike, which he continued to do up to the incident about once a month just for recreation and the joy of riding a motorbike. At the time of the incident, he had access to a Ducati motorbike;
(b)   He would play golf about once a month and that was generally undertaken at the Yarra Bend Golf Course, which is the closest course to where he lived. When queried, he stated he is not a member of any particular golf club and does not have a handicap. Over the years, he has gone away with friends who are avid golfers, and on occasion to different places in different states;
(c)   The plaintiff played competitive hockey during school, and for about twelve to fourteen years after school. He was still playing competitive hockey in Sydney but ceased around 2008 after an injury involving his knee;
(d)   On moving back to Melbourne after the birth of Florence in 2010, he described how he would perform various domestic duties – washing clothes, cleaning, changing nappies et cetera and it was decided between he and his wife that they would both be involved in such domestic duties.
The plaintiff also described that he was involved with gardening and maintaining the outside of the house.
21In particular, the following evidence was given:
Q:“Can I ask you how good were you as a husband in terms of doing the 50 per cent share, would you say you got to 50 per cent, is that essentially fair these days?---
A:I fashioned myself as best I can as - yes, I did my lion’s share of the - - -.”
HIS HONOUR:
Q:“This is probably politically incorrect to some extent, during this time was your wife working?---
A:She’s a writer so she - - -
Q:Works from home?---
A:Yes, so she got a book published in, I think it was around 2013. So she was sort of trying to get that picked up and so on and so forth at this time.”[9]
[9]T31, L2-12

22The plaintiff also described that following the birth of their son, Rocco, in 2012, his wife suffered some degree of post-natal depression, which caused him to take on more of the load and if he got a call he would always try and be there, although he accepted that was not always possible when you are running a business.
23In particular, the following evidence was given:
Q:“How good a handyman were you?---
A:Good question, look, I don’t know how good I am but I enjoyed - I enjoy doing it and I often did it, right, so yes. So if it meant fixing a lock, if I can say we’re in a rented house but I would do the fixing, I wouldn’t ask - I wouldn’t get the landlord to do it, we would do it ourselves. So yes.
Q:How good a gardener were you and how much did you enjoy it?---
A:I have gardened since I was 15.

Q:     How keen a gardener were you in the year before this?---
A:     Very, very.
Q:     What were you growing, what were your garden accessories?---
A:     I would grow tomatoes, summer crops would be tomatoes.
Q:     Vegetables?---
A:Yes, so yes, it was all vegetables in all cases. Zucchini, tomatoes, cucumbers, onions, broccoli and then in winter you would often put in beans. There is a lot of green vegetables, cabbages and that sort of thing in the winter.
Q:Your children, I think at the time of the accident were about 1 and 3, how hands-on a dad were you with the children?---
A:Prior to the accident I was very hands-on, I enjoyed spending time with them and being with them, caring for them and doing the things that dads do.”[10]
[10]T31, L28 – T32, L19

24Leading up to the incident, the plaintiff had generally followed a particular route when riding his bike to and from his residence in Northcote to his place of work in Docklands. However, shortly prior to the incident, he had made a decision to try a different route. When queried as to why he sought a change, he stated he recalled hearing reports of “doorings”, that is, people opening car doors when a bicycle was about to pass, and he wanted to avoid such a situation if possible. The day of the incident was the first time that the plaintiff rode his bike on the new route from his home to his place of employment.
25The plaintiff described the new route that he took from his house to his place of employment and, in particular, described what occurred when the bike track stops at Footscray Road. The plaintiff stated:
A:“So the track stops at Footscray Road, quite a main road, I think it is a few lanes each side and there is lights. So literally stops at the lights. You then cross the road, this main road, and there is two directions, one goes up Pearl River Road or you’re crossing the road and there is a path that goes along Footscray Road. These cyclists went up Pearl River Road and I saw them and I knew where I had to go to work, you know, down – and that was the rough direction.
Q:Yes, I understand?---
A:They were going, yes.”
MR RICHARDS:
Q:“Then did you proceed down Pearl River Road until you came to the intersection of Pearl River Road with Docklands Drive?---
A:That is correct.
Q:What observation did you make then?---
A:Okay, so these guys road ahead, I recall. And I got to the corner of Pearl River Road and Docklands Drive. I had seen the cyclists turn on to Docklands Drive.
Q:Did you turn left?---
A:Sorry, turned left, correct, and I got to the intersection, looked left, didn’t see them anymore but I saw other cyclists coming out of where - of the Piazza let’s call it. And at that point I put two and two together and thought well, I can’t see the cyclists that were ahead of me anymore so they must have gone in there, I’ve got these guys coming out, makes sense, that’s the direction that I have to follow. And again, Your Honour, I knew where my place of work was, this was the general direction that I was following and I turned left into the Piazza.
Q:Where did you enter the Piazza?---
A:I entered the Piazza at the northern - if I can use that term, the northern corner.”[11]
[11]T34, L31 – T35, L31

26Senior Counsel for the plaintiff then showed the plaintiff a series of photographs in and around the area where ultimately the incident occurred. I now refer to some of those photographs:
(a) Initially, the plaintiff was shown the coloured photograph situated at page 215 of the Joint Court Book (“JCB”).[12] The plaintiff did identify the photograph as an aerial view of the premises ꟷ that is to say the Piazza ꟷ and the area where he entered the Piazza designated by a red marker pen indicating the approximate route he took from Pearl River Drive to the area where the incident occurred. As already recorded, the plaintiff described how he rode his bike down Pearl River Drive and turned left into Docklands Drive and at some point along Docklands Drive, he crossed over that road via a crossing and entered into the Piazza area;
[12]Ultimately this photograph was tendered and marked as exhibit 1
(b) The plaintiff was also shown the coloured photograph situated at page 430 of the JCB.[13] The plaintiff did identify such photograph as depicting the Piazza looking south. In particular, the following evidence was given:
[13]Ultimately this photograph was tendered and marked as exhibit 3
HIS HONOUR:
Q:“I’m looking at 430, from the perspective of you taking the photograph, you’re looking, what, south, are you?---
A:Correct.
Q:And the first half of that photo where it looks a darker grey than the lighter grey following, do you see where I’m referring to there?---
A:I do.
Q:What’s the darker grey, is that the Piazza, is it?---
A:It’s a different contour of the area, the surface is still concrete as I recall, but yeah, there is no difference.
Q:Just so I get this right, you have crossed that on your bike, can I see - it is not that clear, but I can see the bollards down towards the middle top of the photo where the cars are, just beyond that, is that where the drop down occurs to the ground?---
A:That’s correct.
Q:So this photo is what, in general terms you’re saying this is what you were confronted with when you did your turn off across the crossing and went into the Piazza, this is what you were confronted with?---
A:That’s correct.”
MR RICHARDS:
Q:“From the position this photograph is taken, how far into the upper half of the Piazza had you gone? Are you at the edge of it or a quarter of the way in, half the way in, what would you say?---
A:A quarter of the way.”[14]
[14]T42, L4-26

(c) The plaintiff was also shown the coloured photographs at pages 427, 428 and 429 of the JCB.[15] The plaintiff described the photograph at page 427 of the JCB as similar to the photograph at page 430 of the JCB, but taken further into the Piazza, but still looking in a southerly direction. The plaintiff describes the photograph at page 428 of the JCB to be taken further along the Piazza again, where the statues and bollards are clearly depicted. The plaintiff described the photograph at page 429 of the JCB to be yet closer again, with the bollards clearly depicted, and on the left of the photograph was a statue, apparently of Dame Edna.

[15]Ultimately these photographs were tendered and marked as forming part of exhibit 3
27The plaintiff described his position between as to the right of the Dame Edna depicted in the photograph at 428 of the JCB.[16] The plaintiff was requested to mark with an “X” the position where he had come from on his bike and the area between the bollards where he rode his bike through.
[16]That is, exhibit 2
28When queried about the approximate pace that he was riding at when riding through the Piazza heading towards the bollards, the plaintiff stated, because it was the first time he had ridden through this area, he was going slowly.
29The plaintiff also accepted that on the west side of the photograph at page 428 of the JCB[17] (that is, on the right as you look at the photograph), there are people descending, which was accepted to be a walkway down on that side of the Piazza. The plaintiff could not recall whether there was a riding track, but certainly a walkway with stairs. The plaintiff stated that at the time leading up to the incident, he was unaware of any walkway on the left or eastern side of the Piazza as he approached the bollards.
[17]That is, exhibit 3
30The plaintiff was asked various questions in relation to his actions as he approached the bollards seen in the photographs. I refer to the following:
MR RICHARDS:
Q:“I wonder if you would describe to His Honour, as you approached that gap in the bollards what you observed and what your thought processes were as you came towards them, what did you see first of all?---
A:Okay. So I saw the green grass or the green mod grass, whatever you call it, I didn’t see either of the accesses to the side.”
HIS HONOUR:
Q:“By that you didn’t see what we have referred to as the walkway or the staircase?---
A:I didn’t see those. I saw the bollards - I saw the perspective, the perspective was definitely that there was a lower area ahead. There was a lower - and as I approached I note[d] it. I remember noting it and I remember seeing this grass extend into the distance. And I concluded that there was a slope downward.
Q:So at no time, perhaps understandably, at no time as you approached the area where the bollards were did you consider that the green grass area, you appreciated that that was not on the same level as the approach to the bollards?---
A:I appreciated that it was lower.
Q:It was lower, yes?---
A:Correct.
Q:And then as you approached it, what was your thought processes about how the two levels were joined, if they were joined?---
A:There are other photos here which will demonstrate. So as I was approaching there was green - from my perspective there was green going all the way. I couldn’t see any lip or any drop, there was no lip, there wasn’t even - there was nothing to represent that there was a lip. It was just a constant flow of grass. And I incorrectly assumed - concluded that there was a slope.
Q:To join you from your higher area to the lower area which you perceived?---
A:That’s right that’s right.”[18]
[18]T49, L3 – T50, L5

31The plaintiff was then asked when did he realise it was not a slope, but rather steps seemingly of half a metre each or more, to which the plaintiff responded:
“Almost as I got to the bollard, I mean, it was virtually as I was at the bollard that I realised that they were steps.”[19]
[19]T50, L11-13
32Senior Counsel for the plaintiff directed the plaintiff’s attention to two photographs situated at page 116 of the Joint Court Book.[20] The plaintiff was questioned about the time prior to getting to the bollard and realising it was steps ꟷ in particular, how had the grass in front of him looked to be a slope – what made it look like it was a slope, to which he answered:
“Well, it was the consistency of the green. So I looked into the distance and I looked - you know, where the bollards were and there was green on the top and green in the distance. There was no indication that they were steps, does that answer the question?”[21]
[20]Seemingly, and probably by oversight, these two photographs were not tendered. I direct that such photographs be tendered and they shall be marked as exhibit 11.
[21]T50, L20-24
33Senior Counsel for the plaintiff then directed the plaintiff to the second photograph on page 116 of the Joint Court Book,[22] and asked whether, if he had been confronted with those steps which had strips on them in a contrasting colour on the edge of those steps, how he would have reacted, to which he answered “more cautiously” and would have stopped.[23]
[22]Exhibit 10
[23]T52, L28
34I also refer to the following evidence:
HIS HONOUR:
Q:“Just to be clear about that. I’m looking at 116 and perhaps just initially the top photograph, looking at the gap between the bollard, taking either one, it doesn’t matter. You look at it and there is the concrete ends and then there is the grass. That layer of grass there, if I can call it the first layer, that is at the same height as the height you were approaching the bollards at, is that correct?---
A:Correct.
Q:And that’s the point you have just been making then, is it, why have a green strip there, that’s the point you’re making?---
A:That’s correct, there is no indication from that picture that there is a hard drop.
…
Q:I think we’re agreed as you approach it there is a grassy area which commences the grassy area which is at the same level as the approach that you had on the bike, on the concrete area, correct?---
A:That’s right.
Q:What I’m really asking now is, that bit of grass, that grassy area, how far out did that extend and that was the top of the first step, was it, and is that depicted in the photograph underneath?---
A:That’s correct.
Q:Okay. The other thing I want to ask you is, I take it in between the bollards there would appear to be metal anti-slippers?---
A:Yes.
Q:For want of a better word, I don’t know what they are called, but I take it they were metal things, were they?---
A:I think they are - I don’t think they are - I’m not sure if they were metal but they were circular.
Q:As you approached the bollards in the area did you have an appreciation of those being there?---
A:I wasn’t focused on those.
Q:And I take it these photos from what I have been told, it is right to say they were there, though, weren’t they? I mean, you may not have appreciated them but they were there at the time?---
A:That is correct, yes.”[24]
[24]T53, L4 – T54, L15

35There was no issue that there were approximately three “steps”, with a total drop of about 1.5 metres from the concrete area immediately at the bollards to the lowest part of the grassed area. Furthermore, it was also accepted that the area surrounded by the bollards and involving the grass had been set up as an amphitheatre-type situation with the grass steps to be used as places where people could sit surrounding the amphitheatre.
36When queried by his Senior Counsel as to what effect any warning signs in relation to the fact that there was a drop on the other side of the bollards would have had upon his progress, the plaintiff responded “I would have stopped. I saw no other route to the water.”[25] The plaintiff stated that there were no warning signs and there was no obvious route to the water he could see.
[25]T55, L20-21
37I refer to the following evidence:
HIS HONOUR:
Q:“From what you told me earlier, people who entered the Piazza like you did from the northern end and wished to come out at the southern end and go on their merry way, leaving aside walking down there down the stairs on the western side, the walkway which I have referred to on the eastern side could either be ridden or walked down, that walkway, is that correct?---
A:That’s correct, but at the time I had only seen people come out of it.
Q:I understand that?---
A:I hadn’t seen people - I had just seen riders in front of me disappear but I had seen other riders come out of it so I assumed that the riders - - -
Q:Just on that, that’s what I’m leading to?---
A:Yes.
Q:Bearing in mind what you just said, was it your assumption that they must have ridden up the hill there to get through the bollards?---
A:Well, that would be a fair assumption. I haven’t considered that myself.
Q:But you said this morning though part of your reasoning process is the bikes confronted you coming out of the - - -?---
A:That’s right.
Q:Well, bearing in mind what we know, what you assumed would have to be bikes?---
A:Yes, ride up.”[26]
[26]T55, L25 – T56, L16

38Senior Counsel for the plaintiff then showed the plaintiff the coloured photographs situated at pages 433, 434 and 435 of the Joint Court Book.[27] The plaintiff gave evidence to the effect that it was an “optical illusion” because the greenness from the top of the steps down seemed to be continuous and, in particular, when queried about the photograph at page 434, leading him to believe there was a slope in front of him, as opposed to steps, the plaintiff said, in part:
A:“It all blends in, there is no - I have used the word before, there is an illusion there, it is an optical type of an illusion.
Q:In what sense is it an optical illusion, do you say?---
A:It is a blend, it is the same colour, there is not – looking at the top to the bottom, your top to the second step to the third step, there is not even a change in colour, in even the look of it.”[28]
[27]Ultimately, such photographs were tendered and formed the balance of exhibit 3
[28]T57, L15-22

39When taken to the photograph at page 435 of the Joint Court Book, the plaintiff stated that that photograph was trying to demonstrate it was not until you got that close that you realised there were steps there. When queried about how far “this close” meant, the plaintiff stated 1.5 metres to 2 metres approximately from the top of them, where he was taking the photograph.[29]
[29]T57, L23 – T58, L3
40I also refer to the following evidence which deals with the immediate incident:
Q:“But on your bike, and you saying you’re travelling reasonably slowly because you’re unaware of the area, when you came to the realisation contrary to what you believed a few seconds earlier that there were steps there, the front wheel of your bike would have been where in terms of the bollards? Before the bollards?---
A:Probably at the bollard.
Q:Right. And how far down the three steps did you get, if at all, before I take it you fell off the bike or landed?---
A:So I had ridden a lot before so I know to transfer your weight, you put your weight back because that’s going to at least help the bike tilt upward. So, you know, you’ve got a split second with this. So I did what I could, but there was enough momentum for me to continue over the handlebars and I went straight to the bottom. I didn’t hit any steps, I landed.
Q:So your back wheel was clear of the steps when you landed, was it?---
A:My back wheel was clear of the steps - so I went over and the bike dipped, you know, dipped straightaway, the front wheel dipped.
Q:The front wheel’s hit the grass beyond the steps at that stage?---
A:No, I went over the handlebars.
Q:No, sorry, I understand your momentum point, you’re leaning back but the momentum, you say, carried you through?---
A:Yes.
Q:When your front wheel hit a surface, was the surface part of the steps or was it the grass at the bottom?---
A:I don’t recall.
Q:And I thought before you said you cleared something, what did you clear?---
A:So I didn’t touch any steps on the way down so I literally fell from the top, like, all the way to the bottom because I got my hand out.
Q:So when you say fell, you’re talking about you, not the like?---
A:Yes, because I sort of went straight off the bike. So the bike had slowed down - I had slowed it down enough for it to be slower but for me not to be as slow.
Q:So the momentum carried you, and when you came to earth, so to speak, you personally physically were past the steps, your bike was rattling down the steps, something like that, that’s the point you make. And did you land on what side, how did you land?---
A:So it was head first, I got this arm out, I don’t know how but I did, and that protected my head basically.
Q:And the left arm where the fractures were?---
A:That’s right.
Q:Are you right handed or left handed?---
A:I’m right handed.”[30]
[30]T58, L4 – T59, L19

41The plaintiff gave evidence that as a result of the incident he suffered approximately four fractured teeth, fractures in his left arm and a left elbow injury.
42A woman came to his assistance and helped him get his mobile phone from his backpack, after which an ambulance was called, and the plaintiff was conveyed to the Royal Melbourne Hospital. On the same day, the plaintiff’s arm was “cleaned” at the site where the bone exited the skin to avoid risk of infection and thereafter, on the next day, the plaintiff underwent an operation consisting of internal fixation of both fractures with screws and plates. Such surgery resulted in scarring in the left forearm, running up to the left elbow, and thereafter, extending slightly around the arm for a short way.
43The plaintiff was in hospital for four to five days and was discharged with a cast, which was stapled along the base of the arm. The plaintiff explained the purpose of such support was to prevent him bending or executing sideways movements of the hand.
44The plaintiff explained that such support was on his arm for about two or three weeks and after removal the plaintiff continued to experience ongoing pain for quite some time, with the staples being removed three or four weeks later. After an initial five or six weeks off work, the plaintiff resumed his job with the family company and, as I have already recorded, he suffered no loss of income during this time. On his return to work, the plaintiff described that there was a general build up of his hours over this period, partly due to the drug medication he was taking and partly due to the ongoing pain in his left arm. At that time he was driving to and from work.
45After the brace and staples were removed, the plaintiff underwent a process of physiotherapy of the arm in order to build up strength in the muscles which had wasted during his time in hospital following the injury. The plaintiff was taking reasonably-heavy medication which made him sick for about the first three weeks, and after that reverted to Panadeine Forte.
46In about August 2014 – about six months after the incident – there was a concern that one of the fractures was not healing and the plaintiff was referred to the specialist orthopaedic surgeon, Mr Wilson, for his advice on that issue. The plaintiff gave evidence that following the advice of Mr Wilson, he sought to have no further surgery done and over time a union was brought about at the fracture site(s).
47The plaintiff described that during the first six months as being significantly disabled, preventing him from doing his normal everyday activities. At that time, the children were aged one and three years old. The plaintiff estimated that, prior to his injuries, he would spend about five plus hours per week performing domestic chores and generally the upkeep of the Northcote home.
48The plaintiff gave evidence that over the first six-month period following the incident, he could only perform “[v]ery very little”[31] or “[c]lose to zero”[32] of the domestic services that he was performing prior to the incident.
[31]T92, L27-28
[32]T93, L22-23
49The plaintiff also gave evidence that, over this time, he and his wife employed outside help to pick up the “slack of the work” that he was unable to perform. In particular, a cleaner was employed to work a couple of hours a week, mostly consisting of two hours a week, and beyond that, his wife was performing the type of work he had been performing prior to the incident. Later, the plaintiff gave evidence that the initial cleaner employed at the Northcote premises was from approximately 2014 to 2017, after which she moved interstate, and another cleaner was employed for what the plaintiff recalled to be a “couple of years”.[33] The plaintiff stated there was no cleaner employed “at this minute” and, to the extent of any cleaning which had to be done in the absence of a cleaner, the plaintiff stated that his wife, Kath, performs such work. In particular, the following evidence was given:
Q:“And between looking after the family and the shopping and the washing and the cleaning, how much additional hours do you say Kath is having to do for you because of your injury, on average, per week?---
A:At least two to three hours, at least.”[34]
[33]T99, L23
[34]T99, L27-31

50The plaintiff was asked that, during that period – that is the second six months when there were issues about the bone healing – how careful he was in trying to minimise his activity to achieve union, and the plaintiff responded:
“Very, very, I mean, I was told, don’t overdo it, you know, you don’t want to - the fact that there’s no union suggests that, you know, you’ve got to be very careful here and I was careful.”[35]
[35]T95, L4-7
51The plaintiff was then queried about his capacity to perform domestic services during that second six-month period and, indeed, the following evidence was given:
“Well, you slowly start to - in the same way I mentioned about work, after a while you do a little bit of what you can and then you slowly, you know, but I am not able to get back to where or haven’t been able since to get up to where I was prior but over that six months, you know, you use your - you start to adapt, use your right hand more and so on.”[36]
[36]T95, L10-16
52When queried as to the level of hours, on average, that he was able to work on domestic services by the end of that six-month period, the plaintiff gave evidence that he was able to do, say, a couple of hours per week.
53Further, when queried about the state of his left arm after the first twelve months, the plaintiff stated that if he overused the arm he got pain and, more recently, he stated that there were a number of times that, without warning, he experienced pain or numbness. In answer to a question from the Court, the plaintiff gave evidence that over the last twelve months leading up to the trial of the matter, he has not taken any prescribed medication, but does take over-the-counter medication such as Panadol and Nurofen when there is any type of flare up of the pain. He estimated that was six to eight times a month or, on average, once or twice a week, and when he does take, for example, Nurofen, he would take two tablets.
54The plaintiff gave evidence that generally, any pain would follow on from him doing something during the day with his arm, and either that night or the next day he would experience an ache, or some aching in the arm. However, he has noticed that without prompting or prewarning, he has experienced pain “a couple of times”, and was still occurring “every so often”.

55The plaintiff gave evidence that it was “years ago” that he last saw the orthopaedic surgeon, Mr Wilson, and indeed, it was also years ago when he last saw the treating surgeon.[37] The plaintiff did give evidence that he saw his general practitioner, Dr Mandal, in November last year (2020) because of pain, and the doctor arranged for him to undergo an x-ray and also an ultrasound, and recommended he see a physiotherapist. He had seen the physiotherapist for the first time the previous Saturday and the plaintiff advised the Court that the physiotherapist wanted him to attend every fortnight.[38]
[37]See generally T98, L6-8
[38]See generally T98, L8-25
56When queried about how “disabled” he is in performing domestic services and upkeep of the house, the plaintiff stated:
“I am restricted in terms of things that require me to use my arm in - with weight. So weight is an issue. It is a bit of a problem this pain that I’m getting unprompted, right, this unprompted pain, and the physio did mention on the weekend, he talked about tennis elbow with me and - - -”[39]
[39]T98, L28 ꟷ T99, L2
57The plaintiff gave evidence that on a normal business day he would leave home at 8.00am and start work in his Docklands office between 8.30am and 9.00am. He either drives or goes by public transport and sometimes it is necessary to drop his two children off at school, although his wife does this also. He would get home somewhere between 6.00pm and 8.00pm, although sometimes he would stay a little bit later, and this would be over the working week from Monday to Friday. It was suggested to him by his counsel that the children were likely to be bathed and ready to go to bed when he arrived home, to which the plaintiff stated:
“Not always. In fact, Kath liked me coming home to bathe the children.”[40]
[40]T100, L22-23
58When queried about the types of things he refrained from doing or was unable to do because of his arm symptoms on a weekly basis that he would have otherwise been doing absent the injury, the plaintiff stated:
“Sweeping, vacuuming, anything that requires - so even, I mean, the up keep of the outside of the house. I mean, just the simple sweeping of the paths, that’s something that needs to be done, I can’t do it, right, or I am restricted from doing it.”[41]
[41]T100, L28 ꟷ T101, L2
59The plaintiff was asked a variety of questions as to his ability to engage in some of the activities that he undertook prior to the incident. In particular, he was asked:
(a)   When queried as to whether he has been able to get back to playing some golf, the plaintiff stated that he did, but he is only able to play once a year now, and that is “where it’s at”.[42] The plaintiff gave evidence that the times he has played golf, the next day is always “a problem”, and also during the round he would generally pass one round or so, so as not to overdo his arm. He no longer goes to resort courses with friends as he did in the past. Further, the plaintiff stated that he has not played golf in the last twelve months because he does not want to hurt himself and he does not want to experience the pain;[43]
[42]T101, L9
[43]T102, L4-5
(b)   He has not returned to motorcycle riding since the incident, and that is for a couple of reasons ꟷ he was advised that it was not a good idea ꟷ but the “reality is” there is an aspect of jarring from the road that occurs, similar to when he plays golf and the club impacts the ball.[44] The plaintiff no longer owns a motorcycle, but he does note the bike that he did generally ride was his father’s bike;
[44]T102, L9-14
(c)   The plaintiff confirmed that until about 2008 he was a competitive hockey player and played in Melbourne for the Old Xaverians Hockey Club and then when he moved to Sydney he played up until 2008, during which year he stopped because he suffered a knee injury, causing him to undergo an arthroscopy. In particular, the plaintiff was asked what had been his intention in terms of returning to any competitive hockey playing prior to the fall, and he stated:
“So, I - hockey has been part of my life for more than half of my life, so, even - and that’s not including - I haven’t played, you know, competitively for 12 years, so I played all through school, I played at, you know, club hockey after school. So it has been a significant part of what I have done and, you know, the reality is I - it’s not a sport I think I’m ever going to be able to play again, I mean, it is not a contact sport, so, but the simple reality is you have got sticks, the sticks are hitting very very solid objects and people, you know - it is non-contact but there is contact. It’s competitive, you are sorting (sic) running at a ball at high pace. If I took a fall on my arm, and landed on my arm, I would be in a lot of strife.”[45]
[45]T103, L10-24

(d) The plaintiff noted that in 2015 he met a former president of the Old Xaverians Hockey Club and was queried about coming back and playing hockey with the “old boys”, to which the plaintiff declined on the basis that he did not have–
“… any faith in my arm, I mean, it’s painful and there’s a risk, there’s a significant risk of re-injury.”[46]
[46]T104, L8-10

(e) The plaintiff also gave evidence that he was approached three weeks ago by a former vice president of the Old Xaverians Hockey Club, who encouraged him to come back and play with the “old boys” in an over-forties competition referred to as a “master competition”;
(f) The plaintiff gave evidence that he has got back to pushbike riding occasionally – he estimates once or twice a month.[47] When queried as to why he only now pushbike rides once or twice a month, the plaintiff stated:
[47]T107, L16-18
A:“Okay, well, so, the kids have bikes and the occasion is when we go out for a ride with the kids. Lockdown was one of those periods that I have to say I, you know, the kids were at home a lot of the time so, you know, once or twice we’d take them or I’d take them out for a ride. So that was a bit of activity, so that’s what I am sort of thinking about there.
Q:Why don’t you ride as frequently as you did before?---
A:Again, it is a case of the bike - well, first of all, it’s been suggested by doctors that I - best not to, just given the risks involved, you know, in the instance of - - -.”
HIS HONOUR:
Q:“By that, by falling off you mean?---
A:Falling off but also the jarring. I mean, you don’t want constant jarring, it doesn’t - anyway, it’s a bit of a hindrance so, yes, that’s why I don’t do it every day, right, so, you know, I did - I rode a lot to work before, I don’t do it as much now.
Q:Well, you don’t do it at all?---
A:I don’t, well, as in I don’t ride.
Q:To work?---
A:That’s right, I ride with the kids.”[48]
[48]T107, L19 ꟷ T108, L9

(g) When queried about the impact of his injuries on his capacity to garden, the plaintiff stated:
“Okay, so gardening requires - if you are going to do it properly, it requires turning of the soil and sweeping paths, all that sort of thing, you know, outside work. It does require a lot of attention, lifting of heavy items and so on and so forth. Manure and so forth. And I am restricted from that side of things now. It’s not that I don’t garden, I do do a little bit out in the garden but I am not able to do the strenuous, heavy type work.”[49]

(h) When queried about his ability to participate in what was referred to as “general hose play” with his children over the last seven years, the plaintiff stated:
A:“Yeah, well, look, that’s a difficult question and I will tell you why. The children were very young, right, when the accident happened but I do know that as they have gotten older I have not been able to engage with them in a rough way, and when I say rough, you mean, it’s that more aggressive playing around and my daughter, of both my children, is more into that than my son, and even still, but no, so in terms of before and after, I do know that my arm - I have got to protect my arm if I am going to do any of that or, you know, yes.
Q:And overall then, how is the quality of life - how is your quality of life, in all the aspects of gardening and motorcycle riding and wanting to return to hockey and wanting to kick the football with your daughter but having pain when you do so and wanting to play with the children, what is the overall quality of life that - would you say diminished by reason of both the symptoms in your elbow and the fact that you have no faith in your elbow, your words?---
A:I make the best of the situation. So there’s definitely been a decrease in the things I can do and that’s not easy to - first of all, I don’t, you know - when you reflect on before and after, that’s, I suppose - and I don’t reflect on these things all the time, I just - there is a decrease in what I did before, what I was able to do before compared to what I am able to do now. But I make the best of it.”[50]
[49]T108, L14-22
[50]T108, L27 – T109, L21

(i) The plaintiff did give evidence that he is involved with some of the activities of his children. At the time of the hearing, his daughter, Florence, was aged ten, and his son, Rocco, was aged eight. The plaintiff gave evidence that Florence had taken up an interest in AFL, whereas Rocco, although not interested in that, was more involved in Little Athletics and individual sports. The plaintiff describes that he does kick the football around with his daughter, but he described an issue as involving catching the football, and he tends to use his right hand if he is playing with her. He accepted that he plays with her, but it is more difficult than it may normally be, and there may be a bit of soreness later in the day if he had played football with her.
60Before I set out details of the cross-examination, it is convenient to set out the details of the medical evidence of the plaintiff, the evidence of his wife, and the evidence of the expert witness, Mr Peter Christopher Harris.

The medical evidence relied on by the Plaintiff
61Following the incident, the plaintiff was conveyed by ambulance to the Royal Melbourne Hospital, arriving at the hospital at 9.44 am. I refer to the ED Nursing e-notes sub-headed “Triage Complaint and Comments” of the Royal Melbourne Hospital, wherein it is recorded:
“Injury - localised (Trauma) - Cyclist went over edge of ledge 10kph, went over handle bars, Put L) hand out to break fall, graze to forehead & L) thigh. Nil LOC. L) deformity of elbow, swollen and pain from mid humerus to wrist. No … except L) arm numbness. Nil helmet worn. Chipped R) front upper tooth. Nil Hx.”[51]
[51]See ED Nursing e-notes at page 415 JCB
62The plaintiff was diagnosed to have an open Monteggia fracture type IV of the left elbow. He was admitted and operated on the following day by the surgeon, Mr Tom Treseder, who performed an open reduction and internal fixation of the left ulnar and radial head and repair of the lateral ulnar lateral ligament and annular ligament. The plaintiff was discharged home the next day, to be followed up in the outpatient orthopaedic clinic.
63I refer to the medical report of Dr Tom Treseder dated 22 August 2014.[52] Such report details the attendance by the plaintiff on Dr Treseder some six months post such surgery. Dr Treseder reports, in part:
“… He is about six months post his injury and he has had a very good outcome. His range of motion is nearly normal. He has no pain in the elbow and he is back to full duties including caring for his young children.
I have done a CT today to look at his radial neck fracture. At the time of surgery I was able to keep his radial head and fix it with a plate. It does suggest that there is an area of delayed union in the radial neck and I think this needs bone grafting before the metalware-fails.”[53]
[52]See report dated 22 August 2014 at page 414 JCB
[53]Ibid
64Consistent with his evidence-in-chief, the plaintiff sought a second opinion from the orthopaedic surgeon, Mr Peter Wilson, who initially consulted with the plaintiff on 16 September 2014.
65In a report dated 17 September 2014,[54] Mr Wilson stated, in part:
“… On the 25^thof February 2014 he was involved in a cycling accident and suffered fractures of the left radius and ulna. He attended the Royal Melbourne Hospital where open reduction and internal fixation had been carried out.
Subsequently he has regained good function of the left elbow, but recently it was found that there was delayed union of the radial fracture.
Currently he is aware of only slight episodic pain when carrying weights or his children.
On examination of his left elbow he lacks about 10 degrees of full extension and flexion and he demonstrates good supination and pronation.
There were scars along the ulnar border of the forearm. As he’s coping reasonably well at present I felt it would be best to continue with normal use of his elbow within his limits of tolerance and I shall review him again in 2 months’ time.”
[54]See report dated 17 September 2014 at page 55 JCB

66Mr Wilson arranged for the plaintiff to undergo a CT scan of the left forearm on 17 November 2014. Mr Wilson further reviewed the plaintiff on 18 November 2014. By way of report dated 19 November 2014 to the treating general practitioner, Dr Ratan Mandal,[55] Mr Wilson states:
“I reviewed Eugene on the 18^th November 2014. He has had no complaints of pain in his left elbow and there has been no change in the range of elbow movement.
X-ray on the day of review reveal[ed] that there was solid union of the ulnar fracture and also some progressing union at the radial fracture site.
At this stage I do not feel that there is any indication for surgical intervention. He is to continue with active use of his elbow and I shall review him again in six months’time.”[56]
[55]See report dated 19 November 2014 at page 57 JCB
[56]Ibid
67I also refer to the medical reports of the treating general practitioner, Dr Mandal, dated 28 August 2014[57] and 3 February 2021.[58] In particular, I refer to the later report, wherein he notes that the plaintiff had been a patient of the “Doctors of Northcote” clinic since 6 December 2013, but was first seen by Dr Mandal on 3 March 2014.
[57]See report dated 28 August 2014 at pages 81-82 JCB
[58]See report dated 3 February 2021 at pages 83-84 JCB
68In that report, Dr Mandal stated, in part:
“1) Mr Ferla presented to me on 3rd March 2014 for plaster review & rewrapping of his plaster & pain management following he was diagnosed with left elbow open Monteggia fracture on 26th February 2014 & he was admitted into Royal Melbourne hospital.
He underwent surgery by orthopaedic team & he has had a) debridement & washout of wound b) left ulnar open reduction internal fixation c) open reduction of left elbow d) arthrotomy and washout e) open reduction internal fixation of left radial head f) repair of lateral ulnar collateral ligament and annular ligament.
2) Then after six years later on 12/11/2020,he presented to me again with left elbow pain and discomfort, I have examined his left elbow & organised Xray & ultrasound which reveals no lateral or medial epicondylitis but loose screw in the ulnar fixation apparatus & it is same as there was Xray report in his file when he was presented in September 2017 … . His recent Xray report & also Xray report in 16/09/2017 reveals bony alignment is antatomical with sign of previous fracture.
…
6) I have seen him last November & his left elbow movements were restricted, with the limitation of medical information about his job,activities he does & whether he is a right handed person etc, I am unable to answer the questions from 7) to 9).”[59]
(sic)
[59]Ibid at page 83 JCB

69The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the surgeon, Mr Kenneth Brearley, initially on 28 September 2017[60] and later on 21 June 2019.[61] When initially examined on 28 September 2017, Mr Brearley obtained a history from the plaintiff that there was no pain in the left elbow, but there was an awareness that the left elbow was not “totally” normal. The plaintiff informed Mr Brearley that he has, in a way, lost confidence in the left arm. Mr Brearley noted that he is right handed. Examination of the left elbow revealed a scar 20 centimetres in length over the ulna and there was some limitation of elbow-joint movement, with flexion to 120 degrees, extension to 20 degrees supination to 60 degrees and pronation also to 60 degrees.
[60]See report of same date at pages 97-101 JCB
[61]See report dated 21 June 2019 at pages 104-106 JCB
70At that time, the plaintiff complained that residual problems in his left arm impacted on his capacity to play hockey. The plaintiff gave a history that he was continuing to play golf, but he has some discomfort or slight pain in the elbow and this occurs particularly when he mishits a ball in golf. Furthermore, he informed Mr Brearley that he does work in the garden and house, which does cause some discomfort. He has some difficulty with dressing, in particular adjusting his collar and tie, because the loss of pronation and supination of the elbow.
71When seen on 21 August 2019, the plaintiff gave an ongoing history that there continues to be some interference with his recreational activities and that he is no longer able to play hockey, which he did competitively previously, and that he is restricted somewhat in playing golf, although he only plays occasionally, perhaps four or five times a year. He also informed Mr Brearley that he was able to play with his children aged six and eight, but he has some discomfort after “rough and tumble games”. He also informed Mr Brearley that he continues to ride his motorcycle occasionally, perhaps three times a year, but he is now more careful.
72Examination of the left elbow revealed that flexion and extension movements of the elbow were normal, as were rotation movements. Such movements were asymptomatic. Testing with the Jamar dynamometer indicates a grip strength of 48 kilograms for the left hand and arm, compared with 50 kilograms for the right side which, of course, is his dominant arm. Mr Brearley did opine that the plaintiff needed no particular treatment now, or in the foreseeable future, although in the very long term there is “a possibility that he may develop post-traumatic osteoarthritis of the elbow joint and he will require conservative treatment at that time”.[62]
[62]See report dated 21 June 2019 at page 105 JCB

The evidence of the wife of the Plaintiff – Mrs Katherine Ferla
73Mrs Katherine Ferla gave her current occupation to be a secondary school teacher and that she had been in her current position for two-and-half years. Before being a secondary school teacher, she was a qualified teacher who worked intermittently as a language teacher, but also worked as a professional writer, screenwriter, script editor, script coordinator, freelance writer and author.
74Mrs Ferla noted she had been married to the plaintiff for eleven years and as at February 2014 – that is the time her husband suffered the fall from the bicycle – she was working as a freelance writer.
75When queried about the involvement of the plaintiff in various matters prior to the incident, Mrs Ferla gave the following evidence:
(a) When asked how she would describe him as a father to their two children, she responded “[e]ngaged, um, hands-on, um, loving”;[63]
(b) When queried about her observations in relation to her husband’s recreational activities, she gave the following evidence:

“Ah hobbies. He enjoyed, golf, he played that regularly, and he did that with a group of friends, and he would sometimes go away on trips with those friends. He liked team sport, um, and he had played hockey, and I do recall, I think just prior, it may have been 2013, he played indoor soccer for a time.”[64]

Mrs Ferla estimated that her husband played golf “maybe monthly”;
(c) When queried about her husband’s involvement with domestic duties, Mrs Ferla gave evidence that before the injury in 2014, both she and her husband shared the domestic duties.[65] When queried about the sort of things he would help her with, or what things her husband did around the house, she gave the following evidence:
“M’hmm. He - we shared the duties, so in the time prior to the injury he did all the shopping, um, he did - he shared with me the cleaning, which includes the heavy cleaning, such as vacuuming, mopping. He did all the handy tasks inside the house, including those that would require a ladder, such as changing light bulbs, a blind, cleaning a ceiling, and he did all the outdoor maintenance.”[66]
[63]T186, L6
[64]T186, L9-14
[65]T186, L22
[66]T186, L24-31

(d)   When queried about activities with the children, Mrs Ferla gave evidence that her husband was involved in lifting and carrying the children, bathing, changing and feeding the children, putting children into the car and taking them to their day care a couple of days a week, which began at the beginning of 2014.
76When queried about the impact of her husband’s left arm and elbow injury, and in particular what, if any, impact that had on his ability to help with domestic duties around the house, Mrs Ferla gave the following evidence:
(a)   The “immediate impact” was 100 per cent. He was unable to drive, to help around the house, to do any of those tasks that he had previously done. Similarly, he was unable to lift, carry, bathe or change the children and he was greatly restricted in his ability to help;
(b)   Approximately six months after the injury, Mrs Ferla described her husband as “still severely limited by the pain in his arm, and the psychological impact as well of the injury, and he was still … unable to help me, definitely with the heavy work around the house”;[67]
(c)   When queried as to who did the heavy work around the house and assisted in the domestic duties, Mrs Ferla gave evidence she obtained some assistance from a cleaner who attended about three hours a week, and she believed the cleaner remained until about the end of 2017.
[67]T187, L25-29
77Mrs Ferla was further queried about the present situation and, in particular, her husband’s ability to do things around the house. She stated:
(a)   The plaintiff does help around the house, but it is not as it was before. She explained that he does things like some cooking and loading the dishwasher, and some basic tidying up, but he does not do the heavier work and he does not do anything requiring a ladder, and the amount of work he does on the outside of the house is greatly restricted compared to before.[68]
[68]T188, L5-12
Mrs Ferla gave evidence that after the cleaner ceased in 2017, she had taken on that work. When asked to estimate how many extra hours of work she has had to take on account of her husband’s inability to perform such work, she stated about two to three hours of work extra;[69]
[69]T188, L16-19
(b)   When queried about her husband’s frequency of playing golf, Mrs Ferla described it as “rarely” and could not recall the last time, but estimated that maybe once a year. Furthermore, she was unaware of any golfing trips her husband had gone on since his injury. Mrs Ferla went on to state that she could recall that some time, a couple of years ago, he was invited on a golfing trip, but declined;
(c)   When queried about the impact of his left arm injury on his social life, Mrs Ferla stated:
“Well, he did used to be very social, and the sporting part of the friendships that he has was quite important. He’s definitely, since the injury, less social, um, more of a home body, um, probably - yeah, less confident to, I don’t know, whether it’s to be away - he likes to stay at home close to his family, whereas that wasn’t the case before.”[70]

(d) When queried about whether her husband goes cycling, Mrs Ferla described that as “rarely”.[71] Mrs Ferla described her husband as cycling “a lot” prior to the injury and that his bicycle was a mode of transport;
(e) When queried about her husband’s involvement with hockey, and about an invitation to play hockey, Mrs Ferla ultimately stated:
“Two weeks ago I was present at the little athletics carnival in Collingwood, where we were watching our children participate, and a former hockey player friend happened to be there, and he invited Eugene back to play in a Masters hockey group, and I was present when Eugene declined, and the reason he gave was he’s conscious and cautious about the injury to his arm.”[72]
[70]T189, L9 – T189, L9-15
[71]T189, L17
[72]T191, L1-8

78At the end of her evidence-in-chief, and in answer to several questions raised by the Court, Mrs Ferla gave evidence that both of her children participate in Little Athletics and that their daughter had shown an interest in Aussie Rules football. When queried as to how weekends are taken up with that sort of thing, Mrs Ferla gave the following evidence:
A:“Well, currently we spend either a Saturday morning or Friday evening for about two hours with little athletics, yes.
Q:And then the footy starts soon, I think?---
A:It will start soon on Sundays.
Q:Very exciting?---
A:Yeah, it’s very exciting. I’m very excited.”[73]
[73]T193, L21-26

79Under cross-examination, Mrs Ferla accepted that her husband was not playing any team sport at the time he was injured. Furthermore, she confirmed that once the cleaner was employed, it was to assist her in the work he had previously done, although she still participated in some of the housework.
80Mrs Ferla confirmed that the cleaner did the heavier work – the vacuuming, mopping and the sort of scrubbing of the shower areas – and she would do more the tidying, and putting away, and folding things like that. In particular, the following evidence was given:
Q:“So when the cleaner came in to do the vacuuming, mopping and scrubbing, she was taking on not only what your husband did, but some of what you did as well?---
A:Well, um, perhaps sometimes I did those things, but I - in the time prior to the accident, I had a three-year-old and a one-year-old, and I was - I was breast feeding the one-year-old still, and um, very hands-on with those children, and as a result he had taken on a large part of that heavier housework.”[74]
[74]T194, L23-31

81Mrs Ferla also gave evidence that although her husband does not do any of the heavier housework, he does other things around the house, but in general he does less housework than prior to the injury.
82In particular, the following evidence was given:
Q:“But to say that you do an extra two to three hours a week, probably you need to factor into that, don’t you, the fact that he’s doing some more of the light work, is that right?---
A:M’mm, well, he doesn’t do, for example, now, he used to do all of the shopping, and I now do all of the shopping, which in itself is at least 90 minutes a week.”
HIS HONOUR:

Q:    “Why can’t he do shopping?---
A:    He doesn’t lift - - -
Q:    He has a right arm?---
A:    Yes, does have a right arm - - -
Q:He can’t lift with his right arm?---
A:I’m not sure why he doesn’t do that, but he doesn’t - he’s very conscious, he’s very conscious of weight bearing, and so he doesn’t - I’m not saying he would absolutely refuse, but because of the injury and because for quite a long period he couldn’t weight bear, he ceased doing the shopping and I’d do that shopping.”[75]
[75]T196, L3-9

83Ultimately, Mrs Ferla stated that she “could probably use click and collect, but I haven’t, I’m not doing that, yeah”.[76]
[76]T196, L19-20

The evidence of Mr Peter Harris
84The plaintiff sought to rely on evidence set out in a report from Mr Peter Harris dated 20 April 2020. Such report is set out at pages 107 to 148 of the JCB. Counsel for the defendant objected to s4 and s7 of that report – s4 commencing at page 128 of the JCB and s7 commencing at page 138 of the JCB ꟷ the substance of the objection that the matters contained in those sections were not “expert evidence” within the meaning of the Evidence Act 2008.
85Both counsel for the defendant and Senior Counsel for the plaintiff advanced submissions in support of their respective positions.[77] Ultimately, I directed the parties that a voir dire would be held the following morning, particularly to investigate what was meant when that witness uses the words “visual cues” in order to assist road pedestrian traffic.
[77]T198-208
86Ultimately, the voire dire continued over pages 209 to 221 of the Transcript, and in particular, Mr Harris gave the following evidence:
·        He described his occupation as a traffic and road safety engineer/road safety auditor. He held tertiary qualifications in civil engineering, business administration, chartered professional engineer under Engineers Australia and some other relevant industry things with traffic engineering. He had been involved as a road safety auditor for about seventeen years.
·        When queried what is a road safety auditor, the witness gave the following evidence:
HIS HONOUR:
Q:“What is a road safety auditor?---
A:So when roads are designed and built, for about 25 odd years   it came out of Britain and introduced it into Australia we have this review process where an independent team of experts or specialists in road safety examine the design, examine the construction, examine the build and then when it’s about to be opened, from purely a road safety perspective, not worrying about other design issues or constraints, just thinking about safety of everybody."[78]
[78]T209, L19-27

· The witness was referred to the phrase “visual cues” which appears at various places in his report, and was queried as to what that means:
HIS HONOUR:
Q:“What does that mean to you?---
A:So within roads, we have a concept of reading a road, being able to just drive on it and have an understanding of what type of road it is and what to expect, and a subset of that is termed within our industry as road readability and that is made up of certain aspects of the environment, and that might be signs, that might be line marking, that might be edges, such as kerbs, which we call channelisation, so there are these - you know, some of it is just industry jargon, delineation, channelisation, but some of it is not industry jargon, like lighting, for example, that’s common, everyone understands what lighting is. There’s a series of aspects of the environment which helps you, as a driver or a rider or a road user, to understand what’s going on, basically. You take an intersection. You’re driving along and you’re coming up on an arterial road. What is it, besides a few lanterns, that actually helps you identify that it’s an intersection, what aspects, what actually is it, and we break that down into its core elements, and visual cues is a little bit of a - just an industry phrase within traffic engineering that’s used.
Q:Just to follow on from what you’re saying, when reading the road, for want of a to use your words, the idea being, with the things you’ve been talking about, you would report to the road maker or the relevant authority and say, ‘Look, this should be changed or that should be changed or you should add this’, or something like that, is that correct?---
A:More or less, yes, and sometimes that comes out of inexperienced designers applying every part of a standard without seeing the whole picture. You can apply every standard and still have a really terrible design at times and that might come down to this aspect of just humans and being able to actually understand what’s going on in the environment.
Q:In your role, are there situations where you are brought into a site, as it were, and you say, ‘Righto, A, B and C can be improved, you should do this, you should do that’, the site remains essentially it’s still a site, obviously, but you’ve added things or changed things on the site to make it safety is the prominent issue, is it?---
A:That’s what I do every day, yes. I was doing that in the hallway for South Gippsland Highway, Leongatha, where they’re about to - - -.”[79]
[79]T211, L13 – T212, L25

· The witness explained that he has been with Road Safety Audits – a company – for about seventeen years, and prior to that he was working with VicRoads in a variety of roles, commencing in their graduate program and being referred to various departments through that organisation.
· Later, the witness was asked by Senior Counsel for the plaintiff what does “visual cues” encompass and what types of visual cues can one have, to which the witness responded:
A:“I was alluding to that before. Some of the simple things on a road would be signs and line marking, on a typical road. Things like kerbing is a visual cue. In a more open environment, like this, that’s not on a road as such, those visual cues can be a little bit more sophisticated in that urban designers will get involved, rather than traffic engineers, and try and design an area, ideally, so that without even thinking about it, you’re channelled into a certain direction, and that might be through furniture it might be artwork, it might be trees, it might be whatever, fencing, it could be any number of furniture related items like this, or parking or the absence of parking, for instance, because I notice there’s some ad hoc parking in this picture, it can come in the form - in the picture I’m looking at on p.24, there’s an enormous billboard sign, for instance, right in the middle, next to a tree, with a huge arrow pointing sort of straight ahead, up. I’m not saying that’s a strong visual cue, but it’s just an indicator that someone entering the piazza might sort of look at it and think, ‘You know, I’m being encouraged to come down the middle.’ It’s very context specific, but they’re the sorts of things.
Q:I wonder if you’d also turn to p.32 of the report. If you’d read the first three lines on the top of p.32?---
A:Okay.
Q:When it comes to discussing the visibility or, in this case, very low visibility and referring to low visual contrast, is that something you do as a layperson or to any and what extent do you bring your expertise, your experience and your training to bear on making those statements about visibility and contrast?---
A:Yeah, bring in expertise and training and practise that quite often, just not to the extent of specialising it that I’m doing it every day and doing the scientific testing of surface materials, I’m not doing that, I’m a broader practitioner in traffic and roads than that little niche, but it comes up very often in public walking spaces, this type of issue about contrast, and that’s why I reference in this report the Department of Transport design note, that gives practitioners some guidance through their own photos and examples of what generally meets the relevant Australian Standard in terms of contrast, which is often a 30 per cent figure for TGSIs, the tactile bumps and things like that.”[80]
[80]T215, L6 – T216, L18

· Ultimately, the Court ruled that the witness could rely on the report that he had prepared for the Court hearing. Such report, dated 20 April 2020, was tendered.[81] In the report, the witness recorded that he undertook a site visit on 17 April 2020 in fine and clear weather conditions. He notes that such visit was done knowing that the site had been redeveloped to gather any information that may be still relevant and to get a sense of the site and surrounds. The solicitors who engaged him posed the following questions for him:
[81]See exhibit 6 at pages 107-148 JCB
“1.Is the construction of the subject turf area subject to any standards, codes or regulations?
2.Is the subject turf area compliant with such appropriate standards, codes or regulations?

3. If not, how not?
4.Whether the turf area posed a risk or hazard to people and/or cyclists in the area?
5.Any other comments you believe to be relevant in the circumstances of the present case.”

87Senior Counsel for the plaintiff referred to various parts of the report as follows:
·        Initially, the witness was taken to the colour photograph at page 5 of the report. Such photograph was identified as delineating the area of the Piazza. Furthermore, the witness was then taken to the two colour photographs on page 6 of the report highlighting the upper area – where the plaintiff was riding over concrete – and the lower area where the grass commenced.
·        The witness was then taken to the colour photographs on page 7 of the report and, in particular, the bottom photograph showing the whole Piazza with the lower grassy area delineated. The top photograph is a view from the south looking across the lower grassy area towards the northern part of the Piazza from where the plaintiff rode his bicycle.
·        The witness was then taken to the colour photographs on page 8 of the report, with the top photograph depicting, via a yellow line, Docklands Drive at the northern end of the Piazza and the Promenade, being the roadway at the southern end of the Piazza along the Yarra River. The witness commented that the Promenade was designated an existing off-road bicycle route and that the Piazza “space” was just one large area between Docklands and the Promenade but without any designation.
·        In answer to a question from the Court, the witness stated that he believed the plaintiff rode his bicycle across the asphalt area towards the bollards and the grass area. In particular, he described it as being “middish” but he accepted that it was an estimate but not to the extreme left or to the extreme right.
When queried by the Court as to whether the concrete bollards shown in some of the photographs on page 8 are a visual cue of some description, the witness answered “Yes of some description” and in particular, the following evidence ensued:
Q:“What would a visual cue, would you say, to your expertise, if you were someone approaching that area and you saw concrete bollards across the path that you not continuously but broken, what would your view be about that?---
A:Look, it’s it could be a seat, you know, just chairs laid out for people, that’s how they could be perceived. I actually do discuss this later if in a few pages later in the report that it could be perceived by people as a break between two areas of some description, or it could just be seen as chairs by people at a random location, but, you know, it is not an indicator of it is not a common indicator of a change in level, specifically.”[82]
[82]T225, L1-13

· Again, in answer to question from the Court, if one looked at the middle photograph on page 8 and, in particular, to the left of that photograph where there is a brown fence, the witness accepted that most probably was the beginning of a walkway there. The witness confirmed that when he attended the site, there was a walkway on the left adjacent to the buildings and shops.
· The witness was then taken to the photograph at page 8 which again depicted the approach taken by the plaintiff towards the concrete bollards.

Of course, this must be seen in the context that this was the first time the plaintiff has crossed the Piazza as a bike rider and, of course, he was unaware of the conditions, geography and general layout of the Piazza.
234After a consideration of all these factors, I consider that the plaintiff is guilty of contributory negligence in the order of 25 per cent.
235In respect to issues of quantum, I make the following findings:
(a) After the incident, the plaintiff was taken by ambulance to the Royal Melbourne Hospital and diagnosed to have suffered an open Monteggia fracture Type IV of the left elbow in his non-dominant arm. A surgeon at the hospital, Dr Treseder, performed an open reduction and internal fixation of the left ulnar and radial head and repair of the left ulnar collateral ligament and annular ligament. The plaintiff was discharged from the Royal Melbourne Hospital after approximately five days;
(b) The plaintiff was reviewed by the treating surgeon, Dr Treseder, on 22 August 2014, approximately six months after surgery, with the doctor noting:
·The plaintiff had a “good outcome”.
·His range of motion was “nearly normal”.
·He had no pain in his elbow and he is back to “full duties including caring for his young children”.[197]
[197]See report of Dr Tresder, dated 22 August 2014, page 414 JCB

A CT scan at that time suggested there may be an area of delayed union in the radial neck and Dr Treseder raised the issue of further grafting.
It would appear that was the last time the plaintiff had any involvement with the treating surgeon;
(c) Because of concerns with slow union, he consulted the orthopaedic surgeon, Mr Peter Wilson, initially on 16 September 2014, who obtained a history and made an examination, noting that:
·The plaintiff had regained good function of the left elbow, but recently had found there was some delayed union of the radial fracture (through the advice of Dr Treseder).
·The plaintiff was aware only of slight episodic pain when carrying weights or his children.
·On examination of his left elbow, he lacked about 10 degrees of full extension and flexion and demonstrated good supination and pronation.[198]
[198]See generally page 55 JCB.

Mr Wilson arranged for the plaintiff to undergo a CT scan of his left forearm on 17 November 2014 and when reviewed on 18 November 2014 Mr Wilson records:
·The plaintiff had no complaints of pain in his left elbow.
·There had been no change in the range of elbow movement.

In particular, Mr Wilson also reports that on the basis of a CT scan undertaken the day before, there was solid union of the ulnar fracture and also some progressing union at the radial fracture site.[199]
[199]See report of Mr Wilson, dated 19 November 2014, at pages 57-58 JCB
I refer to exhibit 8, which contains various radiological reports undertaken in respect of the plaintiff. In particular, seemingly Mr Wilson arranged for a further x-ray of the left forearm on 12 May 2015, which reports there was a healed fracture at the proximal half of the shaft and at the ulnar, seemingly reflecting that there had now been good union achieved.[200]
[200]See x-ray of the left forearm, dated 12 May 2015, at page 94 JCB
The plaintiff gave evidence that he had not seen Mr Wilson since that time – that is, mid 2015;
(d) The plaintiff was medico-legally examined by the general surgeon, Mr Brearley, initially on 28 September 2017 and later on 21 June 2019. At the time of the first examination, Mr Brearley obtained a history that the plaintiff had no pain in the left elbow, but there is “an awareness that the elbow is not totally normal”[201] and that he has lost confidence in the left arm. In particular, the plaintiff gave a history that he did have some residual problems with regard to his recreational pursuits, and in particular it was recorded:
[201]See report of Mr Brearley, dated 28 September 2017, at page 98 JCB
·That he was no longer able to play competitive hockey because he would probably develop aching discomfort in the elbow if he did.
·Although continuing to play golf he does have some discomfort or slight pain in the elbow occurring, particularly when he mishits a ball in golf.
·He says that work in the garden and house does cause some discomfort.
·He does have some difficulty with dressing and, in particular, adjusting his collar and tie because of the loss of supination of his elbow.

On examination, Mr Brearley did find there was some limitation of elbow joint movements, although flexion was to 120 degrees and extension to 20 degrees, supination to 60 degrees and pronation to 60 degrees also.
Mr Brearley was also of the opinion that it was “likely” that the plaintiff would develop post-traumatic osteoarthritis of the elbow joint, as there had been involvement of the joint surface in the fractures. Generally, he considered the plaintiff had had a good result from the operative treatment, but does have residual impairment and disability.
When seen on 21 June 2019, the plaintiff also reported that:
·He was no longer able to play hockey, which he did competitively previously.
·That he is restricted somewhat in playing golf, although he only plays occasionally, perhaps four or five times a year and then, at the end of a round, he does have discomfort in the left elbow and expressed the view that he did not want to play any further at that time.
·He was able to play with his children, aged six and eight (at that date), but has some discomfort after some rough-and-tumble games.
·He says he rides his motorcycle occasionally, perhaps three times a year, but he is now more careful.

The plaintiff also reported that there were no other restrictions in his life apart from those mentioned, and that he maintains his fitness by running and exercise.[202] Examination at that time revealed the following:
·Flexion and extension of the elbow are normal, as are rotation movements. Movements were asymptomatic.
·Testing with the Jamar dynamometer indicates a grip strength of 48 kilograms to the left hand and arm (the non-dominant arm) compared with 50 kilograms for the right side.

On this occasion, Mr Brearley considered there was a “possibility” that the plaintiff may develop post-traumatic osteoarthritis at the joint and he will require conservative treatment at that time;[203]
(e) In relation to further treatment in relation to his left elbow, the plaintiff was cross-examined by counsel for the defendant and ultimately agreed with her suggestion that since the occurrence of the injury and leaving aside the specialist consultations, to which reference is already made, the plaintiff examined the general practitioner on the following occasions:
·In September 2017 and again on 12 November 2020. The plaintiff believed he may have attended on other occasions, having a recall of an ultrasound and an x-ray in 2017, and which the records confirm that it may have been he had attendances on the doctor at and around that time, when there was discussion about the then recent radiology. Ultimately, the plaintiff accepted that if records indicate this did not involve any physiotherapy, such was probably the case.[204]
[202]See pages 104-105 JCB
[203]See report of Mr Brearley, dated 23 June 2019, at pages 104-106 JCB
[204]See the cross-examination of the plaintiff, T124, L5 ꟷ T126, L20

The plaintiff confirmed that he had seen a physiotherapist the weekend prior to the hearing of the matter and that he has had some sort of problem for the last twelve months, but ultimately had not seen his doctor since November 2020, and delayed seeing the physiotherapist until one week ago. The plaintiff confirmed that the physiotherapist made a diagnosis of tennis elbow and recommended physiotherapy for a period every month.
The plaintiff also gave evidence that, at least for the twelve months leading up to the trial, he has not taken any prescribed medication, but does take over-the-counter medication such as Panadol and Nurofen when there is any type of flare up of pain in his elbow. He estimated that it was six to eight times a month or, on average, once or twice a week, when he does take, for example, Nurofen, at which time he would take two tablets.
236I accept the various findings made by the doctors in relation to the near full movement of the left arm and elbow, the clear union of the fracture site, and the ability to do a range of activities. However, I do accept that as a residue of the injuries suffered by the plaintiff, he does suffer some degree of restriction, but does still retain a wide ability to engage in a variety of activities. As he admitted, he is still able to ride a pushbike, which he does with his children, particularly recently during the COVID lockdown periods; he is able to do some gardening, but he says he is limited as to the heavier aspects of that; he clearly has played golf since the injury, although probably not on as frequent a basis as earlier; he has been able to swim as part of his exercise program, such swimming involving freestyle which, of course, uses both arms.
237I also further accept that if he performed particularly heavy activities for a length of time there may well be a flare up of pain which leads to medication, as he has described. I also accept that he has been able to continue to play with his children as they have become older, although, again, as he described to one of the doctors, he is careful performing what he referred to as “roughhousing” with his children.
238However, I should add I find the plaintiff’s description of his restrictions to be somewhat slightly overstated, given the particular findings by the orthopaedic surgeon, Mr Wilson, and the general surgeon, Mr Brearley. In particular, Mr Brearley found the plaintiff, when last seen, to have full movement of his arm and elbow, and the strength of his left arm was only marginally less than that of the right arm. Also, I gained the impression that when the plaintiff spoke of his various restrictions in terms of the use of the arm, some of that more likely reflects some degree of concern as to whether he would hurt his arm again. In this respect, he made plain that, for argument sake, sweeping was beyond him, as was shopping, notwithstanding of course that he has a perfectly good right dominant arm.
239However, I do generally accept that the injury has impacted on his capacity to enjoy his hitherto recreational activities, but in no way have they been obliterated. I should also point out that one of the major restrictions the plaintiff made much of was his inability to return to playing competitive hockey. Such an assertion must be seen in the context that the plaintiff stopped playing any hockey in 2008 as a result of a knee injury at and around that time when he was in New South Wales. He informed the Court that the knee injury put him out for approximately twelve months or so, and that he did not resume hockey when in New South Wales, in part, because of concern the knee injury may recur, and he had commenced a family. However, on returning to Melbourne in 2011 from New South Wales, the plaintiff again made no attempt to play hockey at any stage up to the incident, and it was only relevantly recently he asserts that he was approached by his old hockey club to play in a senior’s competition, which he said had to be declined because of his ongoing elbow problem.
240In general, I do accept the plaintiff has had a love of hockey in the past but, indeed, for whatever reason, he chose not to pursue hockey after his knee improved in 2009 or so, up until he came back to Melbourne in 2011, and thereafter made no attempt to resume hockey at any time prior to the advent of his injury. I do accept that resuming hockey would seemingly not be a particularly wise move on his part, given the risk that a hockey stick or ball could strike the elbow during the course of a game.
241Taking all these matters into account, I assess general damages for pain and suffering and loss of enjoyment of life to be $100,000. Such sum includes a recognition that there is a risk the plaintiff may develop osteoarthritis in the left joint, as opined by Mr Brearley in his last report.
242In respect to future medical expenses, I do make an allowance of $1,000 representing an allowance for approximately twelve consultations with either a doctor or a physiotherapist following any flare up of pain in the left elbow or the development of osteoarthritis. As already recorded, past medical and like expenses are agreed and fixed in the sum of $3,900.
243I now turn to the vexed issue of what allowance, if any, should be allowed for past and future “gratuitous attendant care services”. In general, the claim by the plaintiff in respect of such services is essentially one pertaining to services of a domestic nature. By that, I mean, that it is alleged that prior to his injury, the plaintiff shared domestic duties in the house with his wife and was active in the garden and performed handyman jobs and general maintenance around the house. This is not a case where the attendant care services are said to relate to nursing or, indeed, services are aimed to alleviate the consequences of an injury.
244It is alleged that because of his left arm injury, it has been necessary for, in particular, the plaintiff’s wife to undertake various domestic duties which prior to the plaintiff’s injury, had been undertaken by him. In general terms, the claim for damages for gratuitous care services was put on the basis, as I would understand it, that the wife of the plaintiff performed these duties for so many extra hours at a rate of $30 per hour.
245Of course, it must be borne in mind that:
(a) pursuant to s28IA of the WA, no damages may be awarded to a claimant for gratuitous attendance care services unless the Court is satisfied:
ꟷthere is (or was) a need for the services to be provided; and
ꟷthe need has arisen (or arose) solely because of the injury to which the damages relate; and
ꟷthe service would not be (or would not have been) provided to the claimant but for the injury;

(b) pursuant to the definition of “gratuitous attendant care services”, such attendant care services that have, or are to be, provided by another person – in this case the wife of the plaintiff – to the plaintiff are services for which the plaintiff has not paid, or is not liable to pay.
246The Court has already discussed the issue that although the cleaner employed by the plaintiff and his wife from approximately the time of the injury to late 2017, although no doubt performing services of a domestic nature – cleaning, vacuuming and the like – was paid for such services and therefore could not be seen to be gratuitous attendant care services.
247Consistent with the thrust of s28IA of the WA, it is for the plaintiff to establish that there was a reasonable need for the services to be provided, and that such need has arisen solely because of the injury to which the damages relate and that, in any event, the services would not have been provided to the plaintiff but for the injury.
248I refer to the following evidence given by the plaintiff under examination:
MR RICHARDS:
Q:“So the cleaner that you had employed, was that cleaner employed by the two of you until ‑ I think it was one cleaner employed until 2017, wasn’t there?‑‑‑
A:That’s correct.
Q:And another one ‑ ‑ ‑.”
HIS HONOUR:
Q:“What was that?”
MR RICHARDS:
Q:“There was a cleaner employed ‑ you employed a meaner from 2014 until 2017, was it?‑‑‑
A:Approximately, correct.
Q:And then what happened?‑‑‑
A:And then that cleaner moved interstate and we sought another cleaner.
Q:How long did that second cleaner ‑ did you employ the second cleaner for?‑‑‑
A:As I recall, a couple of years.”
HIS HONOUR:
Q:“No cleaner now?‑‑‑
A:At this minute, no.”
MR RICHARDS:
Q:“Who does the additional cleaning that you are not doing, the cleaner is no longer doing?‑‑‑
A:Kath, my wife.
Q:And between looking after the family and the shopping and the washing and the cleaning, how much additional hours do you say Kath is having to do for you because of your injury, on average, per week?‑‑‑
A:At least two to three hours, at least.”[205]
[205]T99, L11-31

249Although the wife of the plaintiff only spoke of the cleaner up to 2017, it would appear, on the basis of the evidence, that that there was a further cleaner which had been employed after 2017 for “a couple of years”. Again, the services provided by this cleaner would not constitute gratuitous attendant care services and it is unclear what, if any, domestic services were taken up by the wife of the plaintiff during this time which, hitherto, had been undertaken by the plaintiff.
250I refer to the evidence of the wife of the plaintiff, wherein she described her present occupation as a secondary school teacher. In particular, the wife of the plaintiff gave evidence that prior to her husband’s injury, they shared domestic duties. In particular, the following evidence was given:
Q:“What sorts of things would he help you out with, or what sort of things did your husband do around the house?‑‑‑
A:M’hmm. He ‑ we shared the duties, so in the time prior to the injury he did all the shopping, um, he did ‑ he shared with me the cleaning, which includes the heavy cleaning, such as vacuuming, mopping. He did all the handy tasks inside the house, including those that would require a ladder, such as changing light bulbs, a blind, cleaning a ceiling, and he did all the outdoor maintenance.
Q: In relation to looking after your two children, Florence and Rocco, would he assist with that?‑‑‑
A:Yes.
Q:And what sorts of things would he do for the children before his injury?‑‑‑
A:Yes. So our children were three and one, so the types of things he did were lifting and carrying, bathing, changing and feeding, putting into the car, taking them to their day care a couple of days a week, which they began, they only began that at the beginning of 2014.
Q:Now, after the injury in February 2014 to your husband’s left arm and elbow, are you able to say what impact that had on his ability to help you with domestic duties around the house?‑‑‑
A:Well, the immediate impact was 100 per cent. He was unable to drive, to help around the house, to do any of those tasks that he had previously done.
Q:And in terms of looking after your children, after the injury in 2014, what impact did his injury have on his ability to do that?‑‑‑
A:Similar, unable to lift, carry, unable to bath, play, change, couldn’t lift our youngest child into his high chair for feeding time, so it greatly restricted his ability to help.
Q:Approximately six months after the injury, so we’re talking about in the immediate aftermath, about the six‑month mark, was Eugene able to help around the house at all?‑‑‑
A:I think in the six months, six months after the injury, he was still severely limited by the pain in his arm, and the psychological impact as well of the injury, and he was still, you know, unable to help me, definitely with the heavy work around the house.
Q:So who was doing the heavy work around the house and assisting you with the domestic duties after the injury?‑‑‑
A:I obtained some assistance from a cleaner, and I had a cleaner about three hours a week.

Q:And for how long did you employ a cleaner, Ms Ferla?‑‑‑
A:I had a cleaner until about the end of 2017, I think.
Q:Is your husband, talking about now, able to do things around the house?‑‑‑
A:He does help around the house, um, but he ‑ it’s not as it was before. He does things like some cooking, and loading of the dish washer and some basic tidying up, but he doesn’t do the heavier work and he doesn’t do anything requiring a ladder, yeah, and the amount of work he does on the outside of the house is greatly restricted compared to before.
Q:So since he stopped paying for a cleaner at the end of 2017, I think was your evidence, who’s been doing the work that the cleaner used to do?‑‑‑
A:I’ve taken that work on.
Q:And are you able to say how many hours of extra work you’ve had to take on because your husband’s unable to do it?‑‑‑
A:I would say ‑ I am able to say, two to three hours a week extra.”
HIS HONOUR:
Q:“Sorry that’s now, or then?‑‑‑
A:That’s now.
Q:And when did it stabilise to two to three hours; going backwards?‑‑‑
A:M’mm. Well, I had a cleaner that assisted me until the end of 2017.
Q:2017, yes?‑‑‑
A:And post that cleaner I’ve taken on that extra work, and I would say in that time.”[206]
[206]T186, L23 ꟷ T188, L25

251Under cross-examination, the following evidence was given:
Q:“And so you then got a cleaner in to do all of that heavy housework, is that right?‑‑‑
A:To assist me in the work that he had previously done. So I still participated in some of the housework.
Q:Of course. But the cleaner didn’t just take on the work he had done, did they, they also took on some of the work you had done beforehand as well?‑‑‑
A:Actually, I would work with the cleaner in the time that the cleaner came, I would work too.
Q:So what did the cleaner do?‑‑‑
A:Um, they did the heavier work actually, yeah. The vacuuming, vacuuming, mopping, and the sort of the scrubbing of the shower recess, and I would do more of the tidying and putting away and folding and things like that.
Q:And so historically though, it wasn’t just your husband who did the mopping, vacuuming and scrubbing, was it; you did some of that as well?‑‑‑
A:We shared the housework.
Q:That’s right?‑‑‑
A:That’s correct.
Q:So when the cleaner came in to do the vacuuming, mopping and scrubbing, she was taking on not only what your husband did, but some of what you did as well?‑‑‑
A:Well, um, perhaps sometimes I did those things, but I ‑ in the time prior to the accident, I had a three‑year‑old and a one‑year‑old, and I was ‑ I was breast feeding the one‑year‑old still, and um, very hands‑on with those children, and as a result he had taken on a large part of that heavier housework.
Q:Because that’s a very particular time in your life, isn’t it ‑ ‑ ‑ ?‑‑‑
A:Yes.
Q: ‑ ‑ ‑ when you have small children, and it’s very physically intense work?‑‑‑
A:Yes.
Q:But before you had children, it was pretty much, you shared the housework, is that right?‑‑‑
A:We shared the housework.
Q:And you shared the heavier housework, you shared the vacuuming, the mopping?‑‑‑
A:Um, I would probably say he may have done a bit more of the heavier housework.
Q:And you did more of the tidying, cooking, et cetera?‑‑‑
A:Yeah, it was a 50/50, I would say around about a 50/50 split.
Q:Now, Eugene no longer does any of that heavier housework, is that right?‑‑‑
A:He doesn’t do the heavier housework, that’s correct.
Q:But he does other things around the house to help you, does he?‑‑‑
A:He does other things around the house, yes.
Q:So has he picked up some of the lighter stuff in order to pick up the slack from you?‑‑‑
A:Um, m’mm. Oh, he probably ‑ I don’t know if he’s picked up more of the lighter stuff, but he does the lighter stuff, but I would probably say he does less in general, in terms of all of the housework, he does less now than he did then.
Q:Okay. But he still does do a reasonable amount to help you out?‑‑‑
A:It’s not 50/50.
Q:Not anymore?‑‑‑
A:No.
Q:But to say that you do an extra two to three hours a week, probably you need to factor into that, don’t you, the fact that he’s doing some more of the light work, is that right?‑‑‑
A:M’mm, well, he doesn’t do, for example, now, he used to do all of the shopping, and I now do all of the shopping, which in itself is at least 90 minutes a week.”
HIS HONOUR:
Q:“Why can’t he do shopping?‑‑‑
A:He doesn’t lift ‑ ‑ ‑
Q:He has a right arm?‑‑‑
A:Yes, does have a right arm ‑ ‑ ‑
Q:He can’t lift with his right arm?‑‑‑
A:I’m not sure why he doesn’t do that, but he doesn’t ‑ he’s very conscious, he’s very conscious of weight bearing, and so he doesn’t ‑ I’m not saying he would absolutely refuse, but because of the injury and because for quite a long period he couldn’t weight bear, he ceased doing the shopping and I’d do that shopping.
Q:He made the point a few times in his evidence that he’s had concerns about exposing his left arm to ‑ my words ‑ trauma or being knocked or things like that. He talked about the shopping, when he was cross‑examined about it, and I think it was put to him, well, you push trolleys and get your Kellogg’s Corn Flakes and they pack the bags, and still be able to go ‑ I saw the other day they can take it out to the car, which is amazing, these days, but he can lift plastic bags with his right arm?‑‑‑
A:Look, I could probably use click and collect, but I haven’t, I’m not doing that, yeah.”[207]
[207]T194, L5 ꟷ T196, L20

252The wife of the plaintiff makes clear that the paid cleaner, who she referred to – the one working up until the end of 2017 – took on a lot of the heavier housework which the plaintiff had been performing prior to his injury. In particular, the wife of the plaintiff maintained that the plaintiff did not perform any of the heavier housework, but accepted that he did perform lighter “stuff” around the house, but in general would do less than he did before. In particular, the wife of the plaintiff estimated that she would perform an extra two to three hours a week because of him not being able to perform various domestic duties.
253When pressed about what that would involve, the wife of the plaintiff referred to the fact that she now does all the shopping which was at least “90 minutes a week”. When queried about why the plaintiff is unable to do the shopping, she stated that she was not sure why he does not use his right arm to perform such task. It is also to be noted that the wife of the plaintiff gave evidence that she could use click and collect, but that she was not doing that.
254As I have stated, the plaintiff also gave evidence that whereas he was an avid gardener prior to the injury, he could also perform some gardening, but was limited because of his left arm injury and, furthermore, he was unable to maintain the property, as he did prior to his injury. In particular, the plaintiff said he was limited in what he can do with sweeping and certain aspects of maintaining the garden. In particular, the plaintiff described how the family was living in rented premises and when there was some handyman issue to attend to, he would attend to that rather than ring the agent or landlord to have a contractor attend to that particular matter. The plaintiff described the exterior of the rented property to be mostly concrete, and to this day he has a vegetable garden there, which he describes as only involving him throwing seeds in.
255On the evidence before me, it is vague and poorly delineated as to what duties the wife of the plaintiff now performs because of the inability of the plaintiff to carry out such duties. Furthermore, issues arise as to whether or not the claim for disability – for argument sake, sweeping or going shopping – is one that has arisen solely because of the injury to which the damages relate. Bearing in mind the medical evidence relating to the condition of the left arm and the various statements made by the plaintiff to medical practitioners, I tend to the view that the plaintiff would be capable of sweeping and shopping.
256In particular, I see no good reason why the plaintiff could not perform shopping, albeit predominantly using his right arm. In any event, it is unclear why the wife of the plaintiff now spends approximately ninety minutes per week doing the shopping when, as she recognises, she can “click and collect”, which presumably would be far quicker and require less handling of produce.
257In relation to gardening, again, there is no evidence that the wife of the plaintiff engaged in any domestic duties involving extra gardening work or, indeed, any maintenance or the like around the house. As I have stressed earlier, to give rise to a claim for damages, the domestic service must be taken gratuitously, not necessarily by the wife of the plaintiff, but by some person who is not paid for performing such services.
258After a consideration of these issues, I do accept that when the plaintiff was in the most acute period after the incident – that is to say initially, in particular, the first six months and, indeed, the eighteen months thereafter (although not as in such an acute state) ꟷ the wife of the plaintiff would have been involved in activity, particularly in relation to the young children, who required bathing, feeding and the like at that time. Although there is no direct evidence on this issue, I tend to the view that any employed cleaner would be involved with performing household duties, such as vacuuming, cleaning and like, but unlikely to be involved with such things as the bathing of children and feeding them. For this reason, I will allow the sum of $6,240 for past gratuitous attendant care services, representing two hours per week at $30 per hour, totalling $60 per week for 104 weeks, equalling $6,240.
259Beyond that, I decline to order any further damages for either any other past gratuitous attendant care services or services for the future. My reasons for so doing are that I am not satisfied, on the evidence, that over that period of time there was a reasonable need for the services to be provided, and, even if so, who provided services in relation to the various matters such as gardening, general maintenance work and handyman jobs inside and outside of the house. I also consider that the submission made by counsel for the defendant has some force, in that there is a changing dynamic as the children grow older and the wife of the plaintiff has resumed employment as a secondary school teacher. In particular, neither the plaintiff, nor his wife, are now dealing with babies and very young children.
260Accordingly, I find for the plaintiff and order that there be damages as follows:
(a)   general damages representing pain and suffering and loss of enjoyment of life ꟷ $100,000;
(b)   past medical and like expenses agreed and fixed in the sum of $3,900;
(c)   future medical and like expenses ꟷ $1,000;
(d)   past gratuitous attendant care services in the sum of $6,240.
261Such damages to be subject to a reduction of 25 per cent representing contributory negligence.
262I will hear from the parties as to the form of orders sought and in relation to the issue of costs.

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[2021] VCC 1951

7 December 2021