Freudenstein v Marhop Pty Ltd - [2010] NSWSC 724

No judgment structure available for this case.

CITATION: Freudenstein v Marhop Pty Ltd & Ors [2010] NSWSC 724

HEARING DATE(S): 22-26/2/10

JUDGMENT DATE :
8 July 2010

JURISDICTION: Common Law Division

JUDGMENT OF: Kirby J

DECISION: 1. There should be a verdict for the plaintiff in the sum of $127,703, plus interest to be agreed or assessed.
2. The defendants to pay the plaintiff's costs.

CATCHWORDS: TORTS - negligence - intoxicated patron of hotel - hotel being renovated - duty of care of hotel and builder - dangerous premises - fall from roof - causation - contributory negligence - DAMAGES - multiple injuries - comparison with a worst case - loss of earning capacity.

LEGISLATION CITED: Liquor Act 1982 (NSW)
Evidence Act 1995
Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Law Reform (Miscellaneous Provisions) Act 1965

CATEGORY: Principal judgment

CASES CITED: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614
Phillis v Daly (1988) 15 NSWLR 65
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113
CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390
Adeels Palace Pty Limited v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431
Hogan v Rusty Rees Pty Ltd (Supreme Court of Qld, Connelly, Ryan and Cooper JJ, 8.6.89, unreported)
Lanahmede Pty Ltd v Koch [2004] SASC 204
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Francis & Ors v Lewis [2003] NSWCA 152
March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Caterson v Commissioner for Railways NSW [1973] HCA 12, (1973) 128 CLR 99
Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529
Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552
Berryman v Joslyn [2004] NSWCA 121
The Nominal Defendant v Lane [2004] NSWCA 405
Mackenzie v The Nominal Defendant [2005] NSWCA 180
Dos Santos v C Morris Painting & Decorating & Anor [2006] NSWCA 54
Russell v Rail Infrastructure Corporation [2007] NSWSC 402
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498

PARTIES: Douglas Freudenstein (Plaintiff)
Marhop Pty Limited t/as Mona Vale Hotel (ACN 054 697 102) (1st Def)
Bradley Robert Jenkins (2nd Def)
BSB Holdings Pty Limited (ACN 003 607 109) (3rd Def)

FILE NUMBER(S): SC 2002/20171

COUNSEL: T D F Hughes (Pl)
M J Cranitch SC/B C A Bradley (Defs)

SOLICITORS: G H Healey & Co (Pl)
Shearman Lawyers (Defs)

Douglas FREUDENSTEIN v MARHOP PTY LIMITED

t/as MONA VALE HOTEL & ORS

I N D E X

1. LIABILITY

Para.

The broad issues.
1

The plaintiff’s account.
7

The evidence of John Cross.
27

The evidence of the hotel manager.
39

The evidence of the builder.
49

Was the fire door open?
61

Evaluation.
68

The Civil Liability Act 2002.
86

Was there a duty?
88

Was there a breach of duty?
100

Causation.
111

Contributory negligence.
117

What is “just and equitable”?
133

2. DAMAGES

Para.

The issues.
139

The plaintiff’s background.
144

After the accident.
150

Resumption of work.
156

The investigator’s film.
171

Work with United Resources Management.
185

The orthopaedic evidence.
196

The neurological reports.
211

The oral evidence of the neurologists.
230

The psychological evidence.
250

Evidence of the plaintiff and his family.
265

Evaluation: disabilities.
278

Evaluation: loss of earning capacity.
298

Past loss of wages.
315

Past medical expenses.
316

Future medical expenses.
317

Award of damages
321

Orders
324

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Thursday 8 July 2010

2002/20171 Douglas FREUDENSTEIN v MARHOP PTY LIMITED t/as MONA VALE HOTEL & ORS

JUDGMENT

KIRBY J : Douglas Freudenstein (the plaintiff) claims damages for personal injuries suffered in a fall from the roof of the Mona Vale Hotel. The fall occurred on Easter Sunday, 15 April 2001, at 1.30 am or thereabouts. The action is against three defendants. The first defendant (Marhop Pty Limited trading as Mona Vale Hotel) was the company that ran the hotel. The second defendant (Bradley Robert Jenkins) was said to be the Licensee. He in fact became the Licensee shortly after the accident. However, the defendant acknowledged that, at the relevant time, the second defendant had the control of the licensed premises in the sense required under the Liquor Act 1982 (NSW) (Def’s Subs [1]). The third defendant (BSB Holdings Pty Limited) was a company responsible for building work which was then taking place at the hotel.

1. LIABILITY
The broad issues.

1 I should, at the outset, identify the issues on liability. At the time of the accident the hotel was undergoing renovations. It was operating out of a bar on the first floor. The plaintiff was a patron of the hotel. He lived nearby and had been to the hotel many times before. On the evening of the accident he consumed at least 13 or 14 schooners of full strength beer. Much of it had been purchased from the hotel. It was not unusual for him to consume that much beer. The hotel continued to serve him alcohol because it did not regard him as drunk (T 119-122).

2 There was controversy as to the circumstances in which the fall occurred. Mr Freudenstein was, according to the defendants, a very determined entrant, who ignored obvious risks. On the defendants’ case, the door from the hotel bar that led to the building work was closed, if not locked. There was a sign which, in substance, said: “No Entry – Construction Work”. The door opened onto a short corridor. A wall had been knocked out at the end of the corridor, in preparation for the installation of a fire door. According to the builder, the opening for the fire door was blocked by plywood. The plywood was secured by props, which had been fastened to the roof on the other side of the doorway. Hence, on the defendants’ case, Mr Freudenstein had forcefully removed the plywood, displacing the props. Further, to pass through the door, he had to step up 500 mm onto the roof. Beyond the door, there was, according to the defendants, a further barrier. A safety fence had been erected. It was set back a metre and a half from the edge of the roof. The fence was about a metre high. Underneath there was plastic mesh, which had been fastened to the wood of the fence. To get to the edge of the roof and fall, the plaintiff had either to climb over the fence or push the mesh to one side and then climb under it.

3 The plaintiff’s case was very different. There was no barrier between the interior of the hotel, where he was drinking with his friend, and the edge of the roof from which he fell. The door was not locked. Indeed, it was wedged open. There was no sign. There was no plywood covering the opening. He pushed nothing aside to pass from the corridor to the roof. Certainly he stepped up 500 mm or so. However, there was no barrier on the roof and no plastic mesh.

4 Further, the defendants argued that, even were these issues resolved against them, and a fortiori if they were not, there was no duty of care. Alternatively, the scope of any duty owed to the plaintiff, did not extend to liability for his fall. The defendants submitted that, in determining whether there was a duty and its scope, the plaintiff’s inebriation was not relevant. It was his own doing (DS [36]) Alternatively, were the Court to find a duty and breach, the plaintiff’s own lack of care was such that his contributory negligence should be assessed at 100% (DS [41]).

5 On the plaintiff’s case there was a duty. In determining the scope of that duty, it was relevant that the first defendant was a hotel and that patrons may be affected by liquor. There was, it was suggested, a clear breach of duty, both by the builder and the hotel. Any deduction for contributory negligence should be modest (10% - 15%) (Pl’s Subs [44])

6 Against that background, let me go to the evidence.

The plaintiff’s account.

7 The renovations at the Mona Vale Hotel began in early 2000, that is about a year before the accident (Ex 5, para [11]). It was the plaintiff’s local hotel. Mr Brad Jenkins, the hotel manager and the second defendant, said this: (Ex 4 para [7])

“7 I know the plaintiff, who is known as ‘Fruity’ and who drank at the Hotel during the time I worked there. I know him as he was (is) a regular local customer and by this I mean that he came into the Hotel every day. He would come in and drink at least 10 schooners of full strength beer per day. On a weekend Fruity would drink more. It would not surprise me if Fruity drank between 14 and 17 schooners of full strength beer in a ‘session’. This was typically what Fruity and his friends would do in terms of alcohol consumption per day at the Hotel.”

8 Mr Jenkins joined the Mona Vale Hotel days before the accident. His comments were based upon observations after the accident. Nonetheless, although there was the suggestion that Mr Freudenstein’s drinking increased after the accident, it was common ground that he also drank heavily before (T 23). I will return to the issue of alcohol below. Mr Freudenstein, as a local, was aware of the building work which was being undertaken.

9 The building work was suspended on the Thursday before Easter. On Easter Saturday, 14 April 2001, Mr Freudenstein worked as a floor sander with his employer, John Cross, on another building site. His wife, Michelle, was away visiting friends in Wagga Wagga. Mr Freudenstein arranged to meet John Cross at the Mona Vale Hotel at about 5.00 pm. They remained at the hotel until about 7.00 pm, each drinking beer. Mr Freudenstein estimated that he drank about four schooners of beer in that time (Ex A, annex J(2)[14]). He and Mr Cross then took a taxi to the Pittwater RSL, where they met friends and had a meal. They left the RSL Club at about 11.00 pm. In a statement made by Mr Freudenstein six months after the accident (24.10.2001), he said this, providing an estimate which included the beer he had earlier drunk at the Mona Vale Hotel: (Ex A, annex J(2)[14])

“14 ... I estimate that I had consumed ten schooners of beer. I did not drink any other type of alcoholic beverage apart from beer at the Pittwater RSL Club. ...”

10 Mr Freudenstein and Mr Cross returned to the Mona Vale Hotel soon after 11.00 pm. There was a band playing (T 30). They resumed drinking. The incident occurred at about 1.30 am on the Sunday morning. Between 11.00 pm and 1.30 am Mr Freudenstein estimated that he consumed a further three or four schooners (Ex A, annex J(2)[16]). Mr Cross also continued drinking, although he switched to whisky (Ex A, annex J(3)[5]).

11 At about 1.30 am it was Mr Freudenstein’s shout. Adjacent to the bar there was a wall with a number of doors (Ex 5, annex I). Two of the doors provided access to toilets. The door immediately opposite the bar was a fire exit that led to a stairwell (Ex 5, annex J). According to the plaintiff, the fire door was open. Indeed, he had noticed that it was open when he arrived at the bar (Ex A, annex J(2)[17]), presumably a reference to his return at about 11.00 pm. A small triangular wedge had been placed under the door as a chock to keep it open (T 31). There was an Exit sign above the door (T 31), but otherwise no sign (T 46). The door opened inwards onto a landing above the stairwell.

12 Why did Mr Freudenstein leave the bar and pass through the doorway? In his October 2001 statement, he said this: (Ex A, annex J(2)[17])

“17 ... I went to this door to have a look at the renovation work. I was curious as to the progress that was being made. ...”

13 The original Defence filed by the defendants on 12 July 2002 provided the following particular of contributory negligence:

“(c) Failing to take due heed of his whereabouts, by reason of the fact that he was talking on a mobile phone at the time.”

14 The Amended Defence, filed on the third day of the trial (24.2.2009), amended that particular as follows:

“(c) Failing to take due heed of his whereabouts, by reason of the fact that he was either talking on a mobile phone at the time or because he was curious about the construction work taking place at the hotel whilst grossly intoxicated.”

15 The issue was taken up with the plaintiff in his evidence in chief. He could offer little assistance. He said this: (T 32)

16 Why Mr Freudenstein left the bar is a puzzle. He was about to purchase, or had purchased, two further drinks. The bar was due to close in half an hour (2.00 am) (Ex 4[11]). Diverting through an open door to a nearby landing is rather more plausible in the context of a mobile phone call than curiosity about renovations. There was a band playing. The corridor would provide something of a shelter from that noise.

17 The evidence included medical reports tendered by the parties without objection. Most reports included a history which had been provided by the plaintiff. The material, when tendered, was not subject to a limitation under Evidence Act 1995 s 136. The report of Dr Alam, dated 20 March 2002, included the following history, which presumbly was the source of the particulars of contributory negligence: (Ex A, annex C, p 2)

“He had been at his usual hotel between the time of 5pm and midnight when this accident occurred. Apparently he walked out the side to answer his mobile phone. He saw a large doorway cut into the wall and walked through this. It was dark outside and there was black plastic on the tin roof below and he fell approximately one storey. Fortunately he struck softish turned up ground.”

18 Returning to the plaintiff’s account, he asserted in his October 2001 statement, that opposite the fire door at the end of a three metre corridor there was a large hole (Ex A, annex J(2)[17]). There was no plywood boarding (Ex A, annex J(2)[22]). He recognised that it was an opening to the building site (T 62). It had rough edges in the shape of a door and had just been knocked through (T 62). To pass through the doorway, he had to step up 500 mm, which was at least twice an ordinary step (T 68) (cf Ex 5, annexs O and S). Mr Freudenstein described what happened in these words: (Ex A, annex J(2)[18])

“18 Once again I became curious regarding the renovation work and I walked through this hole in the wall. It was very dark outside but I could see black builders plastic covering the construction work. It was not raining but the plastic was wet and I remember thinking that this was probably from heavy dew. I walked out onto this plastic and my next recollection was that I was lying on the dirt having fallen from a height.”

19 When giving evidence, Mr Freudenstein elaborated. He said: (T 33)

“Q. What did you do? Take us through your movements after going through the hole in the wall?
A. Once I went through the hole in the wall, I could see the renovations they were doing in the new part of the hotel, because I saw the blackout on the windows. So the further I walked the more I could see what they were doing in the new hotel.

Q. You say you walked. What happened next?
A. I ended up in the car park.

Q. Do you recall how you ended up in the car park?
A. No, I just walked off a roof.

Q. What was your next recollection after coming off the roof?
A. Standing up, dusting myself off, and walking back around to the front of the hotel.

Q. Are you able to say how you were when you stood up?
A. No, I know I was drunk, but--

20 The plaintiff acknowledged that, when he went through the hole, he knew he was stepping onto a roof (T 62). On the roof there were no barriers, no orange mesh, there was nothing at all (T 66). The following was put: (T 68)

21 The cross examination continued: (T 68)

22 Counsel for the defendants also put the following: (T 65)

23 Counsel for the defendants then put the following: (T 65)

“Q. As you walked out along the roof you were able to see more and more and would have undoubtedly shown you the edge of the roof?
A. Well, I didn't notice the edge of the roof because it was dark.

Q. It wasn't dark in the sense that you couldn't see details because there was light coming from the building site?
A. Not a great deal.

24 The plaintiff acknowledged that he had drunk a lot, but no more than he normally did (T 65).

25 Mr Freudenstein, in his October 2001 statement, described what then happened in these words: (Ex A, annex J(2)[19]-[21])

“19 I remember standing up and feeling no pain. I walked back around to the entrance to the bar from which I had been drinking with John Cross moments before this fall. I walked up the stairs and met a security person whom I know as ‘Chook’.

20 Chook said, ‘Who hit you?’. I said, ‘No one’. Chook said, ‘What happened?’. I said, ‘Nothing, don’t worry about it.’ Chook said, ‘You’ve got blood all over you, what happened?’ I said, ‘I fell off the roof.’

21 I then went to the toilet and I washed off the blood. My front tooth had pierced my lip. I recall by this time that people were asking me whether I was all right. I then walked home. It was 2.00 am.”

26 There was no challenge to that aspect of his account.

The evidence of John Cross.

27 Mr Cross made a statement on 9 November 2001, which was served by the plaintiff. He said this: (Ex A, annex J(3)[6])

“6 At about 1.30 am Doug said to me, ‘It’s my shout, mate. Do you want (a) drink?’ I said that I did and Doug went to the bar. I went to the toilet and when I sat down again Doug had not returned and I could not see him in the bar area.”

28 He then investigated. He said this: (Ex A, annex J(3)[7])

“7 I stood up and walked around the bar looking for him. I saw an open door just to right of the bar and I saw (a) hole in the wall opposite this door. I thought to myself, ‘Surely he wouldn’t have gone through there.’ I noticed that there was no sign to warn patrons about the hole in the wall and there were no barricades to prevent anyone walking through this hole in the wall.”

29 When giving evidence, Mr Cross said that there was a rubber doorstop wedging the door open (T 94). There was no sign other than the Exit sign (T 94/5). At the end of the short corridor, there was a “void out into darkness” (T 92). There was no physical barrier (T 95), no black mesh or orange mesh (T 95), there was absolutely nothing (T 95). There was simply black plastic (T 92).

30 When cross examined, Mr Cross described what he saw, as he peered out the door onto the roof, in these words: (T 99)

“Q. How far into the landing did you go?
A. To the doorway and looked outside on to the roof.

Q. What could you see when you looked out?
A. Absolutely nothing, pitch black.

31 He knew he was looking onto a roof (T 99). Counsel for the defendants then put the following: (T 100)

“Q. And you knew there was an edge out there somewhere, is that right?
A. Well there would have to be, wouldn't there?

Q. And you yourself couldn't see any barricade or anything that would have stopped people going off the roof?
A. That's correct.

Q. And I take it that is the reason why you said "surely he wouldn't have gone there"?
A. Yeah.

Q. Because it would be so silly for anybody to go out and on what was clearly a roof which had an unprotected edge, is that right?
A. That's correct.

Q. And because it was dark you might not know where the edge started in relation to where the hole was?
A. It is alright in hindsight.

Q. Sorry?
A. That is okay in hindsight.

Q. I understand that, part of your thinking was 'surely he wouldn't have gone out there' because it was so obviously dangerous?
A. Doug wouldn't think the same as me, that was my opinion.

32 Mr Cross said that one had to step down onto the roof (T 91). In cross examination, he said this: (T 101)

33 He acknowledged that there was a lip between the corridor and the base of the door frame, which one had to step over (T 100). But you then stepped down onto the roof (T 101).

34 According to Mr Cross, the plaintiff re-entered the upstairs bar 15 or 20 minutes later (T 91, 102). He had “blood all over him” (Ex A, annex J(3)[8]). Mr Cross said this: (T 91)

“A. ... Fifteen to twenty minutes later Dougie come through the front door. He had a gash in his teeth - in his lower lip I should say where his teeth had gone through his skin on his chin. He was limping, he had abrasions to his head and things like that and I thought someone must have given it to him and like punched him. And I just said to Freudy, I said "mate who do we have to square up", you know, and he said "no no no, I fell off the roof". I laughed at him and I said "what are you doing on the roof", and anyway he was feeling sore and sorry and so we got a cab. I got him home and put him to bed and that. So that was it.”

35 There was controversy as to whether the plaintiff had lost consciousness. Originally the claim included an allegation of possible brain damage, which was ultimately not pressed. The plaintiff told a number of doctors that he had not lost consciousness. Mr Cross was therefore cross examined in these terms: (T 102)

“Q. When you say 15 to 20 minutes, you had not said anything about that period of time in the statement?
A. The question was not asked.

Q. What you are doing now is you are guessing at the time?
A. I am not guessing at the time, I was there.
...
Q. I take it you did not look at your watch?
A. I don't need to, I still had a drink. If takes 15 to 20 minutes to have a drink, I still had a drink.

Q. How many drinks did you have in the period of time you were waiting for Mr Freudenstein?
A. Just the one.

Q. Had you finished it?
A. Pardon?

36 Elsewhere Mr Cross said that Mr Freudenstein could hardly walk (T 103).

37 I accept Mr Cross’ evidence as to the elapse of 15 to 20 minutes. It does suggest some loss of consciousness, though Mr Freudenstein may not have been aware. In the light of the claim ultimately pressed, that may not be a matter of great significance.

38 A week after the accident Mr Cross took a photograph of the roof from which Mr Freudenstein fell (Ex B, photo 5). The photograph showed a door frame, but no door, or at least no visible door. It also showed black plastic on the roof, as described by Mr Freudenstein. There was no barrier or mesh. The roof was four metres above the ground below. According to Mr Cross, the photograph depicted the roof as it was on the night of the accident (T 93).

The evidence of the hotel manager.

39 The hotel manager, Mr Bradley Jenkins, began work on 11 April 2001, a matter of days before the accident. He was not working on the night of the accident. The duty manager was Mr David Dunkerley. The person behind the bar was Ms Joanne Hymas (Ex 4[2]). He was made aware of the incident by Mr Dunkerley a week later (T 112) as he acknowledged in his statement (Ex 4[16] and [20]). Oddly, Mr Jenkins included in the same statement the following, referring to the Statement of Claim issued on 19 April 2002: (Ex 4[23]-[24])

“23 I was not aware of the Hotel area being hazardous. I was not made aware of the alleged accident until after the Statement of Claim was issued and I received the court documents.

24 By this time the construction works had finished. I was therefore unable to inspect the site (at) the time of the alleged accident.”

40 These paragraphs overlook the earlier reporting to him by Mr Dunkerley.

41 Neither Mr Dunkerley nor Ms Hymas, nor indeed any staff member on duty that night, was called to give evidence. Mr Jenkins acknowledged that he passed their names to the solicitors for the defendants (T 118). No explanation for their absence was provided. The plaintiff seeks a Jones v Dunkel inference that their evidence would not have assisted the defendants. I will return to that issue below.

42 Mr Jenkins said that, after joining the hotel and before the incident, he was given a tour of the premises by the licensee, Mr Scott Lane. He said this: (Ex 4[17])

“17 ... I knew that everything was locked down and you could not get into the downstairs bar or other construction areas unless they let you in. ...”

43 He added: (Ex 4[18])

“18 ... During this tour with Scott Lane you could not access any area where construction work was being undertaken. If there was a closed door to any part of the construction area you would have to ask one of the construction workers to let you through that door. I knew every area of the Hotel from back to front.”

44 When giving evidence, Mr Jenkins elaborated: (T 124)

“A. Everything was key locked on to a different key set by the builders and there was no key access for the management of the hotel, so anywhere where there was construction you could not actually get into that construction area and then they bought in the locksmiths at the end and changed them over.”

45 When cross examined about that issue, his only reservation concerned whether the door in the upstairs bar was a Fire Exit (T 125). He added: (T 125)

46 The main entry foyer operated as a Fire Exit and a further Exit had been created during construction in the south eastern corner (T 125), near the storeroom (T 141). Mr Jenkins later said this, referring to annotations on a plan annexed to his statement: (T 142)

“Q. Do you know off the top of your head how many fire escapes the hotel would likely have had?
A. I think as a general rule there is one metre for every 100 people. So as far as that area went, I don't think they ever had more than 100 people there, to be quite honest. I don't know what--

Q. So they have got the front steps, which are "F"?
A. Yes. So that was a two metre area. Then they had one metre on this side as well (indicated).

Q. And they have got this one on the southern side leading near the stage?
A. Yes.

47 Finally, on this issue, in answer to a question from me concerning the fire door through which Mr Freudenstein passed, Mr Jenkins said this: (T 132/3)

“Q ... This area ultimately became an exit for a fire escape; is that right?
A. Correct, yes.

Q. Whether it was a fire escape on the night you don't know?
A. I don't know, no.

Q. If it was a fire escape, what you are saying is then you would assume, according to the regulations, that it had to be kept open - sorry--
A. No access, so you can't get through.

Q. --unlocked. Not open, but capable of being open?
A. Yes.

Q. You would still expect it to be kept closed, I assume?
A. Yes, it would have been.

Q. But if it wasn't being used as a fire escape for the duration of the construction?
A. Uh-huh.

Q. Then you would expect the system, which you have described, that is locking it off?
A. Yes, that would be--

48 Mr Jenkins did not recall the opening in the wall beyond the fire door of the upstairs bar. The opening may not have been created until after his inspection. He therefore could not say whether there was protective boarding covering the hole (Ex 4[19] “C”)

The evidence of the builder.

49 Mr John Duignan is a builder and has been since the age of 18 years, when he completed his apprenticeship. He is now 58 years old. For the last decade or so he has specialised in the construction and refurbishment of hotels (Ex 5[3]). One gathers that the Mona Vale Hotel was one of the earlier hotels that he renovated. He was appointed project manager. He resided in Victoria and, whilst the job was underway, occupied quarters within the hotel itself. In 2001 he typically remained in Sydney three days a week (Ex 5[15]). He worked closely with Mr Paul Mignon, the site supervisor, who likewise came from Victoria and had been provided with quarters at the hotel.

50 Mr Duignan provided a statement dated 15 December 2009, which was served (Ex 5). The statement was expressed in strong terms, often adopting the language of an advocate rather than a witness. He described, by reference to an annexed plan (Ex 5, annex A), the renovation of the hotel, including the installation of an external fire door, being the hole through which Mr Freudenstein walked. Jackhammers were used to create an opening. Chip board sheeting was placed on the awning roof to provide a platform whilst work was carried out. He said this: (Ex 5[22(a)])

“22(a) ... Essentially, we constructed the temporary platform consisting of the chip board sheeting and a wooden railing so that we could work off the wooden platform in making the door opening in the exterior Hebel wall in a safe and orderly manner.”

51 Mr Duignan returned to Melbourne on the Thursday before Easter (T 222). One infers that work continued in his absence until the end of the day. He could not say from his own knowledge whether the hole created for the fire door had then been boarded up (T 224). He plainly inferred that it had, based upon what he described as standard industry practice. He said this: (Ex 5[20])

every

52 Mr Duignan added that, not only was the hole covered with plywood, but it was the practice to secure the plywood by bracing positioned on the outside and attached to the roof (T 246). Props would be placed behind the plywood so that people could not readily get through (T 216). Mr Duignan said this: (T 246/7)

“Q. So to get through it you would have to do what?
A. You would have to force it to get through it.

53 Beyond the door and on the awning, safe practice required a safety fence about a metre high with protective mesh, providing a more effective safety barrier. Mr Duignan’s statement included the following: (Ex 5[31(e)])

“31(e) ... I cannot recall whether this was in place at the Hotel but can say that it was always my standard practice to have such protective mesh in place and there would have been no exception made at the Hotel as it is standard industry procedure and protocol, without exception.”

54 Mr Duignan was then shown the photograph taken by Mr Cross one week after the accident (Ex B, photo 5). It showed black plastic on the awning roof. He acknowledged that it did not include a handrail or barricade (T 219). He provided an explanation. The barricade had been removed shortly before in order to permit the placement of the gantry catwalk, which would connect the fire door with another section of the hotel (T 219). However, there were a number of difficulties with that explanation. First, the photograph showed a door frame but no door. Mr Duignan said that the door frame and the door would have been installed on the same day, as part of the same process (T 221). That was an explanation given without reference to contemporaneous documents, almost nine years after the event. It does not explain why the door was open (and therefore not visible) at the time the photograph was taken. No work appeared to be in progress. On the other hand, the photograph depicting the door frame, with no visible door, was consistent with the description provided by Mr Cross. Secondly, the explanation presupposed that the catwalk had been installed the week following Easter. Again it was an explanation given from memory and without reference to site diaries or contemporaneous documents. The week following Easter was a short week. Monday was a holiday and Tuesday was a rostered day off for building workers (T 254). The language of Mr Duignan’s statement, on the other hand, suggested a rather more protracted process. For instance, he said this: (Ex 5[21])

eventually

55 Later, Mr Duignan annexed a photograph of the catwalk (annex Q) that was described in these terms: (Ex 5[59])

finally constructed

56 On the other hand, Mr Jenkins in his statement, said the builders were “in the last weeks of construction before all renovations of the hotel were complete” (Ex 4[17]), so perhaps one should not read too much into the choice of words in Mr Duignan’s statement.

57 Thirdly, one gathers that the gantry or catwalk, once put in place by the crane, then required the construction of a metal handrail, as depicted in the photographs (Ex 5, annexs ‘P’ and ‘Q’) (cf T 228). So there was still work to be done on the roof awning. In this context, Mr Duigan’s statement included the following paragraph: (Ex 5[25])

“25 Prior to excavating the exterior Hebel wall we measured and ordered the steel door frame and the fire door and then measured up the catwalk. Until the fire door is in place and the catwalk was measured up and constructed and installed, the wooden hand rails and protective boarding remained in place as a matter of safety for all workers and as a matter of accepted construction and building industry practice.”

58 Mr Duignan was taken to that paragraph in cross examination and the following question was put: (T 228)

59 Finally, and perhaps most tellingly, the implication of Mr Duigan’s evidence concerning the practices which he assumed the company had followed, suggested that there should have been debris as a consequence of Mr Freudenstein’s penetration of the opening. The plywood and the props must have been displaced and presumably were left lying on the roof. The open hole must have been exposed. The wooden barrier and the plastic mesh had either to be broken or penetrated (either under or over). Yet nothing of the sort was drawn to Mr Duignan’s attention. Mr Duignan said this: (T 247)

60 He added that, if someone were to crash through the guardrail or disturb the mesh, he would have expected to have been told (T 251). Nothing of the sort was drawn to his attention (T 251). He said this: (T 247)

Was the fire door open?

61 Let me pass to another aspect of Mr Duignan’s evidence. Mr Duignan emphasised that the fire door and stairwell did not operate as a fire escape during construction. It gave access to the ground floor where building work was taking place. Instead, provision was made for an alternative fire escape from the upstairs function room (near the storeroom), which would supplement the capacious entrance as a means of escape from the upstairs bar (Ex 5[34], [36], [37], [44] to [47] and [51] to [55]). Hence, there was no reason for patrons of the upstairs bar to use the fire door. More than that, as asserted by Mr Jenkins in his evidence, he said the door was locked. Mr Duignan’s statement included these words: (Ex 5[36])

“36 It was our policy, and also the policy of the Hotel, to have this door closed at all times but it was specifically our policy to have it locked. This door was not to be used as a fire escape as during the construction process the Hotel utilised an alternative fire escape. This alternative fire escape is marked on the schematic plan by the Roman numeral ‘XII’. ...”

62 However, the assertion that the door was locked and could only be opened by the builder (as Mr Jenkins believed) was difficult to reconcile with the unchallenged fact that Mr Freudenstein somehow managed to get through the door and ultimately onto the roof. When Mr Duignan gave evidence in chief, he explained what he meant by “locked”: (T 216)

“Q. Was it locked off?
A. The door shut and being a fire exit and it was a fire exit before we started, when you exit a fire exit you can turn the handle of a door and exit without a key. Once the door shuts behind you, you can't come back in. That's the idea of a fire exit. It wasn't lockable as such. It was a separate system.

63 The door was incapable of being locked from both sides (T 242). It could be opened from the hotel side but, once closed, could not be opened from within the stairwell. So the locking mechanism had nothing to do with the safety of those within the bar. It did not prevent access to the construction zone, as Mr Duignan acknowledged (T 240). Nonetheless, as a matter of policy, Mr Duignan said that he would have expected the fire door to have remained closed (Ex 5[36]). More than that, he would have expected a sign on the door warning patrons. He said this: (Ex 5[33])

locals’

NO ACCESS’

NO ACCESS – CONSTRUCTION ZONE’.”

64 Mr Duignan, of course, could not say whether there was a sign on the door on the night of Mr Freudenstein’s accident, since he was in Victoria (T 227). He also explained that he had no stationery. When he wanted a sign, he would ask the hotel staff to put a sheet of A4 paper in large bold letters on the door, to make it clear that it was a construction zone (T 238/9).

65 In cross examination, the following was put to Mr Duignan, describing the position as asserted by Messrs Freudenstein and Cross: (T 257)

66 Mr Duignan acknowledged that, in such circumstances, there would be a very real risk of injury. His evidence continued as follows: (T 258)

67 Suggestions were put concerning alternative systems that might have been employed to prevent entry by patrons through the fire door, or make the position clearer than an A4 sign. The suggestions included a wooden bar suspended between two stands, or a tape. Mr Duignan said this: (T 257)

Evaluation.

68 Counsel for the plaintiff, in written submissions, drew attention to the failure of the defendants to call anyone from the hotel present on the night of the accident, and someone from the building company familiar with the state of the premises when construction work ceased on the Thursday before Easter. The witnesses included: (PS [18])

The hotel duty manager on Saturday 14 and Sunday 15 April 2001, Mr David Dunkerley.

The person serving behind the bar, Ms Hymas.

The site supervisor of building works, Mr Paul Mignon.

69 Counsel asserted that the absence of such witnesses had not been properly explained, or indeed explained at all. A Jones v Dunkel inference should therefore be drawn. The following was said: (PS [20] and [21])

“20 The Defendants were made aware of the Plaintiff’s fall about a week after its occurrence (T110). Records of which hotel staff were working were available (T112). Mr Dunkerley informed the Second Defendant of the incident within a week of the incident (T112).

21. It was incumbent upon the Hotel to make a report of the incident (T113). The Second defendant, a then Manager, later Licensee would have expected an incident report. Rosters were kept (T114). It was available to the Defendants to ascertain which staff were working that evening (T115). Mr Dunkerley was still in the employ of the Hotel when the Statement of Claim was served (T116). The Defendants had the opportunity to make enquiries of staff in relation to the allegation of negligence -- The Second Defendant can’t recall if he made those enquiries (T117). The Second Defendant made available to the Defendants lawyers the names of the staff working on the night in question. He gave the lawyers the names of Mr Dunkerley and Ms (Hymas). He told the lawyers these people were available to make statements. The Second Defendant asked Mr Dunkerley for something in writing – that document was called for and not produced (T118). ‘Matt’ was working at the Hotel that night – his surname was ascertainable from payroll/roster records which were to hand (T119).”

70 Counsel for the defendants responded that this was not a case where the witnesses “were solely within the feasance province of the defendants” (DS [25]). It was open to the plaintiff to call these witnesses if he chose (DS[25]). However, the witnesses identified were, I believe, very much in the defendants’ camp and their whereabouts capable of being ascertained by the defendants. Mr Paul Mignon, for instance, who was site supervisor and worked closely with Mr Duignan, was clearly well known to Mr Duignan. Mr Duignan said this: (T 239)

“Q. But you know where you can get hold of Mr Mignon?
A. He's retired now but, yeah, I probably haven't spoken to him for 18 months - two years.

Q. But had the solicitors acting for the defendant asked if you could have--
A. Well, I did give them his phone number.

71 There being no explanation for their absence, I infer that the evidence of the witnesses I have identified (amongst a somewhat longer list provided by the plaintiff) would not have assisted the defendants.

72 I return to the broad issues which were identified at the beginning of this judgment, namely:

73 Dealing with the first of these issues, it was ultimately common ground that the door was not locked. But was it closed? The plaintiff and Mr Cross said that it was not. Indeed, it was held open by a chock. No-one from the hotel was called to suggest otherwise. Mr Jenkins believed, as it happens wrongly, that the door was closed because it was always locked by the builders and they had the only key. Mr Duignan could only say that it was the policy of the company and of the builders that the door be kept closed.

74 I accept the evidence of Mr Freudenstein and Mr Cross that the door was open and held open by a chock.

75 The second issue concerns whether there was a sign saying, in effect: “No Access – Construction Zone”. If the door was open, as I accept, the sign was to some extent irrelevant. An open door was capable of being viewed by patrons as an invitation to enter, or at least permission to enter. The sign, if there was one, was liable to be missed or ignored because, unlike a sign on a closed door, it was not immediately visible. It did not confront the entrant as he sought to pass through the door.

76 Mr Freudenstein said that there was no sign. Mr Cross said the same thing. No-one from the hotel said that there was a sign in place on that night. The system of posting signs on A4 paper, as described by Mr Duignan, seems to me very haphazard and makeshift. The builder was not the one who affixed the sign. Instructions were given to hotel staff and it was left to them. Somehow, having printed a sign on A4 paper, it was to be affixed to the door. Such a sign, one would imagine, would be liable to fall off. In my view, it was no substitute for a professional sign made from rather more robust material, such as one sees on construction zones and building sites throughout the city.

77 The third issue concerns whether there was plywood covering the fire door opening, secured by props fastened to the roof. Mr Freudenstein said that there was no such barrier. He simply passed through the door by stepping up. Mr Cross later went looking for him. He saw no barrier, simply a void. However, if one assumes there was a barrier and Mr Freudenstein had pushed it down, then there would have been a void, although there would also have been debris. Mr Cross’ evidence does not therefore take the matter much further.

78 Mr Jenkins said that he did not know of the opening or of the plywood. Mr Duignan gave evidence concerning the appropriate practice, which required plywood secured by props. One infers that he expected that practice to have been followed. But was it followed? Mr Mignon was not called, nor anyone to say that it was followed. It was Easter and the workers were about to take a five day break. If, upon their return, the building site had been significantly disturbed by forcefully displacing a large sheet of plywood, which had been secured by props, one would have expected that to have been noticed and drawn to the attention of management. The absence of any evidence suggesting that there was such an intrusion, is consistent with the plaintiff’s account that there was no such barrier.

79 But leaving that aside, the account given by Mr Freudenstein seems to me much more plausible than the alternative. All possibilities must, of course, be viewed in the context of Mr Freudenstein’s considerable intake of alcohol. He said that his curiosity was aroused as to what was happening in respect of the renovations. If you assume that he was standing in the bar, about to order a drink for himself and Mr Cross, and that he looked through the open fire door, it is instructive to ask what he might have seen. If there was a barrier, all he would have seen would be a corridor and an opening covered by a plywood barrier. It is hard to imagine anyone’s curiosity being aroused by that. On the other hand, if he went from the bar through the fire door onto the landing, perhaps to take a mobile phone call, and had there been a barrier, he would still have seen an opening covered by plywood. Again, it would be odd to be so curious about the renovations as to be moved to physically displace the barrier. No doubt displacing the barrier would have been difficult and would have caused significant noise, which would make such behaviour even more odd. On the other hand, if you assume that the plaintiff went from the bar onto the landing to take a mobile phone call and you further assume an opening in the opposite wall, but no barrier, then it is less difficult to understand that someone’s curiosity may have been sufficiently aroused to peer out and even step up in order to have a better look.

80 Any analysis is to some degree speculative. Nonetheless, Mr Freudenstein struck me as an honest witness. I think it likely that he went onto the landing to take a mobile phone call and found that there was a hole and no barrier. That appears to me far more plausible than the alternative suggestion, made by the defendants, that he removed the barrier.

81 The final issue concerns the additional barrier fence erected on the roof itself to prevent workmen accidentally falling from the roof. Again, Mr Freudenstein said that there were no such barriers. He had a reasonable recollection of his actions before the fall. Again, it is far more plausible that he accidentally fell off the roof, not appreciating precisely where the edge was, rather than deliberately climbing over or under a barrier which had been placed upon the roof. Certainly he was affected by alcohol, but he knew he was on a roof.

82 Mr Cross said that there were no barriers. However, he also said that it was very dark. Indeed, he used the expression “pitch black” (T 99). His observations of the roof in these circumstances are of limited assistance. The photograph taken a week later was consistent with there being no barrier, although the possibility that there had been a barrier and that it had been removed to allow the positioning of the gantry must be acknowledged.

83 On balance, I think it likely that there was no barrier fence (and no plastic mesh) on the roof at the time the plaintiff fell.

84 So I accept the plaintiff’s account of the way in which the accident occurred. The fire door leading to the corridor and stairwell was wedged open. There was no sign. There was no plywood covering the hole in the exterior wall and no props securing that plywood. There was no barrier on the roof and no plastic mesh.

85 Against that background, let me turn to the legal issues concerning duty, breach of duty and contributory negligence.

The

Civil Liability Act

2002.

86 The Statement of Claim was issued on 19 April 2002. The Civil Liability Act 2002 was passed shortly after, receiving assent on 18 June 2002. Part 2 of the Act (Personal Injury Damages) was expressed to be retrospective in respect of actions commenced after 20 March 2002. It therefore applies to this action.

87 On 28 November 2002, assent was given to an amending Act, the Civil Liability Amendment (Personal Responsibility) Act 2002, which included, relevantly, Part 1A (Negligence) and Part 6 (Intoxication). The amending Act commenced operation on 6 December 2002, but did not apply to actions which had been commenced before that date. Its provisions therefore do not apply to this action. Instead, one must look to the common law.

Was there a duty?

88 In Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, the High Court, by majority, abandoned the fine distinctions of occupier’s liability in favour of a general duty, as expressed by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614. Deane J, in that case, said this: (at 662/3)

“... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”

89 Nonetheless, the relationship between the occupier and the entrant, and the circumstances surrounding his entry, remain important. In Phillis v Daly (1988) 15 NSWLR 65, Samuels JA, having referred to Australian Safeway Stores (supra), said this: (at 67/8)

“ ... That means, I take it, that the classical categories of entrant may still be accorded some potency. It is perfectly rational to assume that the degree of care which is appropriate to a trespasser, whose entry may fall at any point in a long continuum of knowledge, perception and expectation on the occupier’s part, may be much less than that which can reasonably (be) demanded by the business visitor, whose appearance is anticipated and welcomed, and less than that owed to someone whose entry is anticipated but merely tolerated. Equally, the nature of the danger will be a necessary constituent in working out whether any breach has occurred since it will be material to the foreseeability and magnitude of the risk, and the requirements of the defendant’s response.”

90 More recently, in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330, Gummow J said that duties of care are not owed in the abstract, but are “obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question” (p 345 [43]). His Honour added: ([44])

“ ... a duty of care involves a particular and defined legal obligation arising out of a relationship between an ascertained defendant (or class of defendants) and an ascertained plaintiff (or class of plaintiffs). Sometimes, the determination of that legal obligation is more complicated than it was at the time Lord Atkin announced his ‘neighbour’ principle in 1932. The law now recognises types of loss and kinds of relationships which are different from those of earlier days.”

91 Here Mr Freudenstein was a lawful entrant. The hotel owed him a general duty to take reasonable care to avoid the foreseeable risk of injury (South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113, per Ipp AJA at 137 [151]). In the context of an action against an hotel, the High Court in CAL No. 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390, recently expressed the duty in these terms:

“[31] There is no doubt that the Proprietor and the Licensee owed Mr Scott various duties to take reasonable care – for example, a duty to take reasonable care to ensure that the premises were physically safe, and a duty to take reasonable care to ensure that the equipment in operation, like gambling machines and kegs, did not injure him.”

92 The duty, however, was not limited to the static nature of the premises. An important circumstance, relevant to the scope of the duty, was the activity within the premises, which involved the sale of alcohol. In South Tweed Heads Rugby League Football Club (supra), Ipp AJA said this: (at 137)

Canterbury Municipal Council v Taylor

93 In the context of a licensed restaurant, the High Court in Adeels Palace Pty Limited v Moubarak [2009] HCA 48; (2009)239 CLR 420, identified a number of matters which pointed to a restaurant owing patrons a duty of care. The circumstances included: (at 436)

“[25] ... Secondly the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, ‘harm [arise] from violence and other antisocial behaviour’.”

94 Of course, the circumstances giving rise to Mr Freudenstein’s injury do not involve violence or aggression. However, another consequence of the sale of alcohol is that, notoriously, it may impair the judgment of those who consume it. In CAL No. 14 Pty Limited (supra), Gummow, Hayden and Crennan JJ said this: (at 414)

“[54] ... Virtually all adults know that progressive drinking increasingly impairs one’s judgment and capacity to care for oneself. Assessment of impairment is much easier for the drinker than it is for the outsider.”

95 That is not to say that the hotel owed Mr Freudenstein (unless his circumstances were exceptional) a duty to monitor and minimise the service of alcohol to him as a customer in order to protect him from the consequences of the alcohol he chose to consume (CAL No. 14 Pty Limited, supra at [52]). Nonetheless, a relevant circumstance in determining the scope of the duty was the knowledge of the occupier of the characteristics of entrants. Although dissenting as to the outcome, McHugh JA expressed the principle in these words in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431: (at 460/1)

96 An illustration of the concept is provided by an unreported Full Court decision in Queensland (Hogan v Rusty Rees Pty Ltd (Supreme Court of Queensland, Connelly, Ryan and Cooper JJ, 8.6.89, unreported). The action concerned an accident on an internal staircase within the hotel involving a person staying at the hotel. Connolly J (Ryan and Cooper JJ agreeing) said this:

“The learned trial Judge concluded that the duty of care owed by a proprietor of licensed premises such as these is not limited to a duty owed to the ordinary reasonable person but that he must have in mind inebriated customers or guests, particularly as the hotel provided no desk attendant or night watch system and was at no pains to explain to its customers or guests what the keys they are given are for. In all the circumstances his Honour considered that the steps should have been as effectively sealed off at the bottom as they were at the top. His Honour did not consider that the means taken to block the stairs off went far enough, bearing in mind that people who had been drinking might wish to get back into the hotel.”

97 In Lanahmede Pty Ltd v Koch [2004] SASC 204, although dealing with an action where alcohol had excited aggression, the South Australian Full Court (Perry, Bleby and Gray JJ) dismissed an appeal. Bleby J made the following comment:

“[2] ... There can be no doubt that Lanahmede was under a common law duty of care to its patrons. The content of that duty of care must be informed by the fact that patrons will, from time to time, become affected by liquor and may become subject to aggressive, disorderly or offensive behaviour. The duty extends to taking steps to ensure that reasonable precautions are taken to ensure the safety from physical harm of those who may become so affected, as well as those who may be affected by such conduct of others.”

98 Gray J added the following:

“[35] In the present case Lanahmede was under an admitted duty to take care with respect of its patrons. It could be expected that patrons would be affected by alcohol with an attendant risk of aggressive, offensive and disorderly behaviour. Lanahmede could also expect patrons’ attention to be diverted to the social occasion particularly having regard to the Christmas celebrations. Patrons were likely to be relaxed and to have a reduced awareness of possible dangers.”

99 Here, the hotel manager, Mr Jenkins, and the builder, Mr Duignan, each foresaw the risk of injury to hotel patrons unless precautions were taken in respect of the renovations then underway at the hotel. It is clear that the defendants were under a duty to take reasonable care for the safety of the plaintiff.

Was there a breach of duty?

100 The classic formulation of breach was provided by Mason CJ in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, where he said: (at 47/8)

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

101 That formulation, with refinement and elaboration, has been adopted in the Civil Liability Act 2002, ss 5B and 5C. Here, a reasonable person in the position of the defendants would have foreseen that the continued operation of the hotel, whilst building work was taking place, involved a risk of injury to patrons using the hotel. The risk was not only foreseeable, but plainly foreseen by the hotel and the builder.

102 Further, the risk of injury was not insignificant. The hotel was operating at night from a bar on the first floor of the premises, which was roughly four metres above ground level. The renovations were not being undertaken around the clock. The area being renovated was in darkness or semi darkness. Mr Jenkins said there had been no previous incidents during construction (Ex 4 [25]). However, one does not know whether the hotel usually operated from the upstairs bar with the fire door open. Even if it did, the issue is whether a reasonable person would have taken precautions to prevent danger to patrons arising from access to the building work, and whether it was unreasonable to ignore that danger (Francis & Ors v Lewis [2003] NSWCA 152, per Mason P (Hodgson and Tobias JJA agreeing) at [57]. Here, Mr Jenkins and Mr Duignan each accepted the need for precautions preventing access by patrons to the building work.

103 However, foreseeability of injury does not determine breach. The Court is obliged to balance the reasonableness of the defendants’ conduct in response to the foreseeable risk. The question is, what would a reasonable person have done in the light of the matters identified by Mason CJ, namely:

the magnitude of the risk

the probability of its occurrence

the expense, difficulty and inconvenience of taking alleviating action.

any other conflicting responsibilities which the defendant may have?

104 Here, unless steps were taken to prevent access to the building work, there was the grave risk of serious injury, including death. As to the probability of its occurrence, it was perhaps moderate. There was I believe, a real risk of injury if a patron from the hotel, and especially one affected by alcohol, entered the building site. The defendants need not foresee precisely how an accident may happen. The risk of injury could not be considered negligible or remote such that a reasonable person would reject it as unworthy of consideration (cf McHugh J in Romeo v Conservation Commission of the Northern Territory (supra) p 461 [78]). Indeed, the hotel and the builder believed that the risk had been addressed by measures which, in fact, had not been taken.

105 The precautions identified by the plaintiff, which ought to have been taken, included those steps which the defendants asserted (mistakenly, according to my findings) were taken, namely:

ensuring that the fire door in the upstairs bar remained closed;

No Access: Construction Zone”

providing a plywood barrier (secured by props) covering the hole in the external wall;

providing a handrail forming a barrier and mesh.

106 Dealing with each of these measures, there would obviously be no difficulty or expense in closing the door. However, closing the fire door would not prevent access, unless the door were locked. It appears that the door was incapable of being locked because it was a fire door, even though not used as part of a fire escape during construction work. The plaintiff, in these circumstances, suggested the alternative of a tape secured on one side of the door and passing across the door frame to the other side, to make it clear to patrons that entry was forbidden. That message should have been reinforced, according to the plaintiff, by a sign on the door itself. Alternatively, a barrier in the form of a wooden pole slung between two supports, such as one sees at a cinema whilst they are being cleaned, would have been a simple and obvious way of getting the message across. A professional sign stating: “No Access: Building Work”, such as one sees on city building sites, would presumably cost very little. Indeed, so common are they, one assumes such a sign would be available off the shelf from an appropriate store. But, even if that were wrong, I infer it would cost very little to manufacture and properly affix. A paper sign, fixed somehow or other, is plainly no substitute.

107 The third suggestion (plywood to cover the hole and props to hold it in place) are standard items on any building site.

108 The final precaution, the barriers and mesh on the roof itself, are rather different from the other precautions suggested. Such barriers were in place to safeguard workers when they were working on site (cf DS [28]). They were not a precaution contemplated in the context of patrons drinking in the bar. No doubt there is expense and inconvenience in erecting such barriers. It would hardly be reasonable, assuming other precautions, to insist upon such a measure in respect of patrons in the hotel.

109 Leaving the barrier and mesh to one side, it was not suggested by the defendants in respect of the other precautions, that there were competing responsibilities on the part of the hotel or the builder which conflicted with the implementation of such measures.

110 Balancing these matters with the foreseeable risk of injury, I believe the defendants were in breach of their duty. The primary responsibility for some aspects rested with the builder, especially in relation to blocking the hole in the external wall. One would infer that it was the hotel employees who opened the fire door. There was no issue of apportionment between defendants. It is enough, therefore, to say that the defendants were in breach.

Causation.

111 In March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506, Mason CJ said this, concerning the issue of causation: (at 515)

Fitzgerald v Penn

112 Here, part of the plaintiff’s complaint concerns the absence of a sign and therefore a failure to warn. In the context of a failure to warn, McHugh J, in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, summarised the principles relating to causation, where there is a failure to warn, in a series of propositions which included the following: (237 at [34])

“(1) a causal connection will exist between the failure and the injury if it is probable that the plaintiff would have acted on the warning and desisted from pursuing the type of activity or course of conduct involved;

(2) no causal connection will exist if the plaintiff would have persisted with the same course of action in comparable circumstances even if a warning had been given;”

113 But for the defendants’ breaches, the accident would almost certainly not have occurred. Had the fire door in the upstairs bar been closed with a barrier or tape in front of it, and had there also been a sign on the door, the plaintiff, I believe, would not have gone through the door. Indeed, I think it very likely that, if the fire door had simply been closed with an appropriate sign, it would not have occurred to the plaintiff to go through the door.

114 Further, even if the fire door had been open with no sign, had there been a plywood barrier covering the hole in the external wall, again I believe it implausible to suggest that the plaintiff would have violated such a barrier to satisfy his curiosity about the renovations.

115 It was the open fire door leading from the bar which allowed the plaintiff to enter the corridor, and then the absence of a cover over the hole which allowed him to see out onto the building site, thereby arousing his curiosity. As I will shortly describe, in the context of contributory negligence, his actions in seeking a better look were no doubt the product, at least in part, of an impaired judgment, the consequence of alcohol. The issue of policy and scope must be addressed in the context of a hotel serving liquor until late into the night. In that context, a failure to take reasonable care, exposing patrons who may be affected to the risk of serious injury, makes it appropriate, to my mind, that the scope of the defendants’ liability extend to the harm so caused. In other words, approaching the issue in a common sense way, one would identify two causes: the failure of the hotel and builder effectively to insulate the building site from the operating hotel, and the failure of the plaintiff to take reasonable care for his own safety. The defendants’ breach of duty was a substantial and effective cause of the accident and the plaintiff’s conduct contributory negligence, rather than an intervening cause.

116 The plaintiff has established factual causation and that the scope of the defendants’ liability should extend to the harm so caused. I now turn to the issue of contributory negligence.

Contributory negligence.

117 Contributory negligence at common law is the failure of the plaintiff, in the circumstances, to take reasonable care for his own safety (Caterson v Commissioner for Railways NSW [1973] HCA 12; (1973) 128 CLR 99). The onus of proving contributory negligence is upon the defendant. Where the damage suffered by the plaintiff is the result, partly of his own failure to take reasonable care (contributory negligence) and partly of the wrong of another person, the damages recoverable are reduced to the extent the Court thinks it just and equitable, having regard to the plaintiff’s share in the responsibility for that damage (s 9(1) Law Reform (Miscellaneous Provisions) Act 1965).

118 In Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25, in the context of the reduction of damages arising under the Law Reform Act, Hayne J adopted the approach described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529. In that case, the following was said: (at 532)

Pennington v Norris

Stapley v Gypsum Mines Ltd

Smith v McIntyre

Broadhurst v Millman

119 Here the plaintiff had consumed a significant amount of alcohol. According to Professor Starmer he would, as an habitual drinker, have developed significant tolerance. Nonetheless, he would still have been “grossly intoxicated” (Ex 1, report 18.10.09, p 4), although that opinion was expressed on an assumption as to Mr Freudenstein’s weight (87 kg), which was less than his actual weight (100 kg). Professor Starmer added that his state of intoxication may explain why Mr Freudenstein chose to inspect renovations in the dark at about 1.30 am (Ex 1, report 18.10.09, p 4).

120 However, Mr Freudenstein’s impaired judgment and reduced appreciation of danger as a consequence of alcohol, are not matters which ameliorate his culpability when assessing contributory negligence. The test is objective (Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552).

121 In forming a view as to what is “just and equitable”, It is instructive to look at Joslyn v Berryman and the determination ultimately made. A passenger in a car (Berryman) sued the driver (Joslyn) as a result of a motor vehicle accident. The passenger, who was severely intoxicated, had originally been driving the car. However, he exchanged places with the driver, who was also intoxicated. He allowed her to drive and soon after the car overturned. He was severely injured.

122 The trial Judge found the passenger guilty of contributory negligence and reduced the damages by 25%. The Court of Appeal determined that the perception of the passenger, at the time of the changeover, was so impaired that he would not have known the level of impairment of the driver. The Court therefore overturned the finding of contributory negligence.

123 The High Court allowed an appeal, and remitted the matter back to the Court of Appeal for reassessment on the issue of contributory negligence. McHugh J identified the test in assessing contributory negligence in these words: (at 564)

“[32] The test of contributory negligence is an objective one. Contributory negligence, like negligence, ‘eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question’.”

124 The rule has one exception. In respect of children the standard varies depending upon the age of the child. There were cases which supported a similar concession in the context of old age. An elderly pedestrian, for instance, may not be capable of moving as fast as someone who is younger. However, the rule makes no concessions for other idiosyncrasies, even though they may be material to the accident, such as impaired hearing or sight (at 565). The test to be applied, in determining whether there was contributory negligence in circumstances of intoxication, was formulated by McHugh J in these words: (at 566/7)

287 Whatever the cause, I am satisfied that Mr Freudenstein suffers from disabling back pain, which is frequently present and now chronic. It has been going on for so long that it is less amenable to treatment (cf supra [235]). I accept the evidence of the plaintiff’s wife and daughter, who both appeared to be straightforward witnesses, and their description of the considerable difficulties which the plaintiff has experienced since the accident. The pain does fluctuate and is more disabling at some times than at others, but I accept that it is “probably getting worse” as the plaintiff suggested (supra [267]). Mrs Freudenstein said much the same thing. Indeed, it is convenient to repeat part of her evidence: (T 155)

“HIS HONOUR

288 Let me move from the back pain to the left shoulder. Mr Freudenstein was examined by Dr Bodel, for the defendant, in October 2002. Dr Bodel found generalised wasting of the left shoulder, restriction of movement and weakness as well as “some subacromial impingement” (supra [197]). He thought he had a soft tissue injury, although he acknowledged he may have a rotator cuff pathology (supra [199]). Dr Bodel thought the plaintiff’s complaints were quite genuine (supra [199]). He found a 12% permanent impairment (supra [200]).

289 Dr Fine, on 9 December 2002, could find no explanation for the restriction of movement of the left shoulder on examination, and recommended nerve conduction studies, which were never undertaken.

290 Dr Mahony, in April 2003, said Mr Freudenstein had “a capsulitis of his left shoulder, and a rotator cuff lesion could not be excluded” (supra [201]). He found a 15% impairment of the left upper limb. Having seen Mr Freudenstein again in late 2008, Dr Mahony reiterated that view (supra [205], [207]). Dr Bodel’s opinion on the left shoulder in April 2009 included these words: (supra [209])

“He also has pain and stiffness in the region of the left shoulder and pushing, pulling or lifting or use of the left arm overhead aggravates the pain.”

291 Professor Spira reported on the left shoulder on 22 April 2009 in these terms: (supra [227])

“The left shoulder trauma appears to have resulted in some joint dysfunction as there is palpable crepitus present. I did not see radiographs of the shoulder and in any case believe that this aspect should be assessed by either a rheumatologist or orthopaedic surgeon as recommended by Dr Milder.”

292 When the plaintiff was asked about the left shoulder, he said this: (T 71)

“Q. You also described difficulties of lifting your shoulder above your head, your hand above your head?
A. Sometimes.

Q. Does that make it worse when you have to exert yourself; in other words, lifting things up?
A. It's more painful, yes.

Q. Pressure on it?
A. More painful, yes.

293 The film taken by the investigators on 28 January 2004 certainly depicted the plaintiff with his left arm periodically raised above shoulder level in a relatively short sequence. The plaintiff later said that that movement would be accompanied by pain (supra [182]). I accept that there has been some improvement to the left shoulder. The earlier wasting noted by Dr Bodel appears to have gone. Nonetheless, crepitus and the other matters noted by Professor Spira remain and I accept that it is still disabling.

294 Moving to the psychological impact upon the plaintiff of his pain and disablement, Mr Freudenstein was, I believe, rather less reliable on this aspect than the observations of his wife and daughter. For instance, he told Dr Brown in October 2007 (more than two years after the accident) that he was angry and irritable at home for about six months after the fall, and that he no longer had “this problem” (supra [253]). However, it is plain from accounts he gave periodically to other doctors, and the observations of his family, that the symptoms persisted and, indeed, are still present. No doubt they were more severe in the first six months. But they are an accompaniment of pain and frustration and it is evident that both have been present, to a greater or lesser extent, throughout. The psychological impact upon the plaintiff was described as “reactive irritability” by Dr Brown, who said this: (supra [260])

“It is the commonest psychological complaint that I ascertain in persons I assess for ongoing physical pain and limitations.”

295 The evidence given by Mrs Freudenstein and her daughter, Kirsten, about the crankiness and irritability of the plaintiff and the way in which it has intruded upon their lives and their relationships, demonstrates that the plaintiff does still have that problem.

296 What amount should be awarded for the combined effect of these disabilities, in the context of “a most extreme case”? Mr Freudenstein is not an intellectual. He does not live in his head. He is a very physical man who enjoyed robust health and heavy work before the accident. He is now clearly disabled and suffers a deal of pain, although it fluctuates. It is to his credit that he has not given himself to that pain, but continued to work. The effort has plainly taken a toll on him, his family and his relationships with his family. His disabilities are pervasive, affecting many aspects of his life and leisure.

297 The submission made by the plaintiff (31% to 33% disability) I believe, was conservative. To my mind, the appropriate level of disability is 33% of a most extreme case ($473,500), being $156,255.

Evaluation: loss of earning capacity.

298 There is a marked contrast between the plaintiff’s capacity for work before the accident and his capacity now. Before the accident he was a qualified mechanic who performed that work from time to time. It was an important string to his bow. It required heavy lifting, prolonged bending and work in awkward and confined spaces (supra [193]). He also worked in the related industries of tyre fitting and car wrecking. At the time of the accident, he was working as a floor sander which was likewise heavy work. He performed the work of a mechanic and a floor sander without difficulty. He now says that he is incapable of doing such work (supra [193]). On his own assessment, he is confined to the sort of work he is now performing with United Resources Management as a garbage collector (that is, work not involving lifting or excessive bending).

299 The medical evidence, with one exception, supports Mr Freudenstein’s own assessment of his working capacity. Doctors Mahony and Bodel, orthopaedic surgeons, and Dr Milder, neurologist, said that Mr Freudenstein should avoid heavy work, involving heavy lifting and bending. Dr Milder, having been provided with a description of his pre-injury work, expressed the view that he was 60% to 70% incapacitated for such work (supra [243]). Whilst Professor Spira, neurologist, described that assessment as “ludicrous” (supra [246]), it is not entirely clear that he understood that Dr Milder was speaking of incapacity for heavy work, rather than work generally. Professor Spira himself, in his report, concluded by saying these words: (supra [229])

.

300 Professor Spira was subsequently shown the DVD (Exhibits 2 and 3) depicting Mr Freudenstein working. He then expressed the view that Mr Freudenstein had “unrestricted capacity” (supra [242]). He later moderated that view by acknowledging that he was incapable of performing work with the heavy sanding machine (supra [248]). He explained what he meant by “capacity”. Incapacity did not equate with pain (supra [248]). He was not denying that certain forms of work would cause Mr Freudenstein suffering (supra [248]). The plaintiff, nonetheless, could do that work, albeit with suffering.

301 I prefer the evidence of Dr Milder and the orthopaedic surgeons. I believe Professor Spira placed altogether too much weight upon the investigation film. The film contained fragments, usually short, some of them separated by hours. There was no evidence as to what happened in between. But one does know from Mr Freudenstein’s evidence, which I accept, that such activity induced pain, which he simply put up with because he believed that he was obliged to do the job. As demonstrated by the evidence of his family members, where they described how he presented at the end of each working day, he has paid a heavy price for the work he has performed. It is not reasonable, in my view, to expect a stoicism beyond that which he has already exhibited (cf Dr Milder, supra [247]). Indeed, as I have already said, his work record since the accident is remarkable. After three weeks off, he has worked continuously. He makes no claim, to this point, of a continuing wage loss. I accept him as a person who has done his very best.

302 I further accept that he is now incapable of performing work as a mechanic, or the work he used to perform in related industries. He has lost that string to his bow. He also can no longer perform heavy sanding work. Indeed, I accept the medical opinions, that he should not perform heavy lifting or excessive bending.

303 Mr Freudenstein, again through his own efforts, secured work with United Resources Management as a garbage collector, which he is able to do. He earns $950 per week net, although it should be noted that he is a permanent casual, not an employee. To earn that money, he is required to work six days a week, including Sunday. He has no right to holidays or sick pay. No reference was made to superannuation. As stated, no claim is made in the nature of a wage difference between his pre-injury earnings and his present situation.

304 Nonetheless, plainly there has been a significant loss of earning capacity. What, then, is his future? Mr Freudenstein stated that he can perform his work as a garbage collector without difficulty, apart from some pain and stiffness occasionally getting in and out of the truck (supra [191]). His job, nonetheless, as Professor Spira remarked, is very physical. It involves a lot of walking and pulling bins across grass, most of which is flat (supra [190]). Mr Freudenstein said that he intended to continue that work until retirement (supra [193]). It is convenient to repeat his answers in cross examination: (T 87) (supra [194])

305 Looking ahead, there are a number of imponderables. Mr Freudenstein clearly has a job that suits him and it is likely that he will continue as long as he can. However, things may obviously happen that may throw him back on the open labour market, where his reduced earning capacity is likely to present him with difficulty in finding a suitable job. His company may lose the garbage collection contract. It may introduce a different system, so that collectors are required (as they are in many suburbs) to lift or bend. Or he may fall out with his employer, and find himself out of a job. He may become ill for unrelated reasons, and by the time he recovers there may be no position for him. Effectively, he now only has one string to his bow, light work not involving excessive bending or lifting. He does have the advantage of a very positive attitude.

306 But, assuming all goes well and he remains with his present employer, is he likely to become more disabled as he grows older? He is now 47 years old. He has, on his own reckoning, about 20 years of wage earning life left. His back is likely to get worse. Dr Milder noted “a predisposition towards the accelerated development of lumbar spondylosis has resulted” from the fall (supra [223]). He has, according to the MRI, disc protrusions and other defects in his spine, where physical effort is likely to take its toll. Dr Milder said this: (supra [236])

but you do it with a degree of discomfort and you put stresses on the spine. You feel the effects immediately and in the longer term you almost certainly have a greater rate of progression

307 In the nine years since the accident, Mr Freudenstein has already noticed that his pain is getting worse (supra [267]). I repeat the observation of his wife, which suggests that it is most unlikely that he will be able to perform at his present level until retirement in 20 years: (supra [273])

308 I therefore believe it is likely that his working life will be cut short. It is obviously difficult to say by how much, although I believe it is not unreasonable to infer that, conservatively, he is likely to retire at least two years ahead of the time he would otherwise have retired.

309 In summary, he has lost earning capacity in the sense of jobs that he is no longer able to perform, including that of a mechanic, and his wage earning life is likely to be shorter than it would have been, but for the accident. What, then, is an appropriate sum for loss of earning capacity, taking account of vicissitudes (15%) and the fact that his loss by early retirement is a loss deferred (which must be discounted at 5%)?

310 The submissions by the parties on the issue were vastly different. Counsel for the plaintiff drew attention to the evidence of Dr Milder and his comments upon the plaintiff’s likely future, in terms of his back. Dr Milder stated that the level of his disability for heavy work of the sort he used to perform is about 60% to 70% at present (supra [243]), but likely to increase to 70% to 80% in the next decade, as his back deteriorates. Dr Milder said this: (T 167)

“Q. So I understand this, you say currently you regard there is a reduction in his physical abilities to perform the work described in the order of 60 to 70 percent?
A. Yes.

311 Counsel suggested that, using Mr Freudenstein’s current wage of $950 per week net, a 30% reduction in earning capacity for the next ten years (age 47 to 57 years) amounts to $285 per week. For the last ten years of his working life (age 57 to 67 years) a 40% reduction will amount to $380 per week. Using the 5% discount tables (deferred in respect of the later loss) and allowing 15% for vicissitudes, the appropriate award for this item, according to the plaintiff, is $181,916.

312 The defendants’ position was that nothing should be allowed. There was no loss of earning capacity. The defendants said this: (DS [54])

“54. The defendant submits that the plaintiff has not made out a case for a diminution in earning capacity, nor is there any sound foundation for calculating such loss. Whilst this is not definitive of the plaintiff’s loss, and indeed this court can make a finding of economic incapacity if it is thought fit so to do, the defendant says that it is not an appropriate case in which to award a cushion or buffer in this context. The plaintiff is clearly earning a substantial income of $950 per week net and no evidence is sought to be adduced by the plaintiff to suggest that he would do any better working as a mechanic or indeed in any of the other occupations he had previously followed. This is assuming, of course, it is accepted that he could no longer engage in those occupations.”

313 I find neither submission attractive nor persuasive. The plaintiff, for the last nine years and at the present time, has been receiving no less than he would have earned had he not been injured. I accept that there has been a loss of earning capacity and a probable shortening of his wage earning life. But that does not equate to a weekly loss. I believe it is unrealistic to approach his loss upon that basis. Certainly, it is helpful to calculate the deferred loss of the likely shortening of the plaintiff’s wage earning life. Such a calculation will provide some guidance. Using the deferred discount rate of 5% for the final two years of his working life, the appropriate discount figures (were he to work to the age of 67) are 0.396 and 0.377. However, the plaintiff would not necessarily have worked until the age of 67, although that is becoming the norm. He may have retired earlier. For that reason, I prefer to approach the matter on the basis of a foreshortening of his wage earning life by, say, two years. Were he to retire earlier, then a different discount rate would apply. So the figures are only a guide. On my calculations, using the deferred rates and making the assumption of 67 years as the retirement date, and allowing 15% for vicissitudes, the loss would be of the order of about $31,000 (using a net weekly wage of $950.00).

314 Taking both aspects of the plaintiff’s loss into account (a loss of capacity and the foreshortening of working life), I believe it is reasonable to allow $65,000 for this aspect.

Past loss of wages.

315 Loss of wages was agreed at $650 per week for three weeks, being $1,950.

Past medical expenses.

316 The only claim made on behalf of the plaintiff in respect of past medical expenses is for non prescription analgesics which he purchased from time to time from chemists (Panadol, Nurofen and Panadeine Forte). The sum of $15 per week is claimed. No submission was made by the defendants on the issue. The claim is modest and, I believe, reasonable. The sum of $7,200 should be allowed for this item.

Future medical expenses.

317 As mentioned previously, the plaintiff’s complaints have never been properly investigated medically, apart from the MRI undertaken in January 2009. Various doctors at different stages have suggested particular investigations that ought to be undertaken to elucidate his problems. The plaintiff has not pursued such matters, nor indeed any therapy (whether physiotherapy or hydrotherapy) because of the expense. Dr Graham Mahony (who was not called and whose reports were tendered by consent) furnished a report in April 2003 which was in these terms: (Ex A, annex A6, report 29.4.03)

“I would assess the approximate cost of further investigation to be as follows:

Magnetic Resonance Imaging of Left Shoulder & Lumbosacral Spine:	$3,200
X-rays & Ultrasound of Left Shoulder:	$500
CT Scan of Lumbosacral Spine:	$500
General Practitioner & Specialist Consultations:	$1,500
Physiotherapy:	$3,000
Hydrotherapy:	$3,000
TOTAL	$11,700

318 Dr Mahony furnished a further report in January 2009 (having seen the MRI) which was as follows: (Ex A, annex A2, report 22.1.09)

“I would assess the approximate cost of further investigation to be as follows:

General Practitioner & Specialist Consultations:	$5,000
Physiotherapy:	$6,000
Hydrotherapy:	$6,000
TOTAL	$17,000

319 The reports are certainly broad brush. The issue was not pursued with the doctors who were called to give evidence. On such spare material there are obvious difficulties in making any realistic determination. I think it likely that, whatever else happens, Mr Freudenstein will continue the habit of nine years of taking non prescription analgesic pain relief. Some allowance should be made for that, using his life expectancy of 38.26 years (ABS, published 30/09/09) (cf Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498). He is likely to continue to suffer pain, even when he ceases to work (902.0 x $15.00 = $13,530).

320 I also believe it is reasonable that some allowance be made for further investigation of his problems, including his left shoulder. It is reasonable that an allowance be made for periodically seeking the assistance of his general practitioner and occasionally a specialist. It is also reasonable that he should have physiotherapy and hydrotherapy to determine whether they help and, if they do, that some amount be allowed for that contingency. Adopting the same broad brush approach as the parties, I believe that the allowance for future analgesics and therapy should be $25,000.

Award of damages.

321 The plaintiff’s award of damages should therefore include the following:

General damages	$156,255
Loss of earning capacity	$65,000
Past loss of wages	$1,950
Past medical expenses	$7,200
Future medical expenses	$25,000
TOTAL	$255,405

322 The slip rule applies.

323 That award is to be reduced by 50% for contributory negligence. The plaintiff should receive interest to be agreed or, in the absence of agreement, brought back to me for further order.

Orders.

324 I therefore make the following orders:

1. There should be a verdict for the plaintiff in the sum of $127,703, plus interest to be agreed or assessed.

2. The defendants to pay the plaintiff’s costs.

**********

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Citations

Freudenstein v Marhop Pty Ltd [2010] NSWSC 724

Most Recent Citation

Liebeck v Dawsal Pty Limited [2010] ACTSC 141

Cases Citing This Decision

3

Schuller v S J Webb Nominees Pty Ltd [2015] SASCFC 162

Josephine Williams v Landsdowne Partners Pty Ltd t/as 202 Broadway [2013] NSWDC 154

Liebeck v Dawsal Pty Limited [2010] ACTSC 141

Cases Cited

30

Statutory Material Cited

5

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7

Hackshaw v Shaw [1984] HCA 84

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7

CITATION:	Freudenstein v Marhop Pty Ltd & Ors [2010] NSWSC 724
HEARING DATE(S):	22-26/2/10
JUDGMENT DATE :	8 July 2010
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
DECISION:	1. There should be a verdict for the plaintiff in the sum of $127,703, plus interest to be agreed or assessed. 2. The defendants to pay the plaintiff's costs.
CATCHWORDS:	TORTS - negligence - intoxicated patron of hotel - hotel being renovated - duty of care of hotel and builder - dangerous premises - fall from roof - causation - contributory negligence - DAMAGES - multiple injuries - comparison with a worst case - loss of earning capacity.
LEGISLATION CITED:	Liquor Act 1982 (NSW) Evidence Act 1995 Civil Liability Act 2002 Civil Liability Amendment (Personal Responsibility) Act 2002 Law Reform (Miscellaneous Provisions) Act 1965
CATEGORY:	Principal judgment
CASES CITED:	Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 Phillis v Daly (1988) 15 NSWLR 65 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 Adeels Palace Pty Limited v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 Hogan v Rusty Rees Pty Ltd (Supreme Court of Qld, Connelly, Ryan and Cooper JJ, 8.6.89, unreported) Lanahmede Pty Ltd v Koch [2004] SASC 204 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Francis & Ors v Lewis [2003] NSWCA 152 March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Caterson v Commissioner for Railways NSW [1973] HCA 12, (1973) 128 CLR 99 Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552 Berryman v Joslyn [2004] NSWCA 121 The Nominal Defendant v Lane [2004] NSWCA 405 Mackenzie v The Nominal Defendant [2005] NSWCA 180 Dos Santos v C Morris Painting & Decorating & Anor [2006] NSWCA 54 Russell v Rail Infrastructure Corporation [2007] NSWSC 402 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498
PARTIES:	Douglas Freudenstein (Plaintiff) Marhop Pty Limited t/as Mona Vale Hotel (ACN 054 697 102) (1st Def) Bradley Robert Jenkins (2nd Def) BSB Holdings Pty Limited (ACN 003 607 109) (3rd Def)
FILE NUMBER(S):	SC 2002/20171
COUNSEL:	T D F Hughes (Pl) M J Cranitch SC/B C A Bradley (Defs)
SOLICITORS:	G H Healey & Co (Pl) Shearman Lawyers (Defs)

Para.
The broad issues.	1
The plaintiff’s account.	7
The evidence of John Cross.	27
The evidence of the hotel manager.	39
The evidence of the builder.	49
Was the fire door open?	61
Evaluation.	68
The Civil Liability Act 2002.	86
Was there a duty?	88
Was there a breach of duty?	100
Causation.	111
Contributory negligence.	117
What is “just and equitable”?	133

Para.
The issues.	139
The plaintiff’s background.	144
After the accident.	150
Resumption of work.	156
The investigator’s film.	171
Work with United Resources Management.	185
The orthopaedic evidence.	196
The neurological reports.	211
The oral evidence of the neurologists.	230
The psychological evidence.	250
Evidence of the plaintiff and his family.	265
Evaluation: disabilities.	278
Evaluation: loss of earning capacity.	298
Past loss of wages.	315
Past medical expenses.	316
Future medical expenses.	317
Award of damages	321
Orders	324