Gaskin v Ollerenshaw - [2010] NSWSC 791

No judgment structure available for this case.

CITATION: Gaskin v Ollerenshaw [2010] NSWSC 791

HEARING DATE(S): 16-18, 21 June and 16 July 2010

JUDGMENT DATE :
16 July 2010

JURISDICTION: Common Law

JUDGMENT OF: Garling J

DECISION: Judgment for the defendant. Plaintiff to pay the defendant’s costs.

CATCHWORDS: NEGLIGENCE – Duty of care – Occupiers liability – Duty to independent contractor – Plaintiff was an experienced roof painter – Allegation that occupier breached his duty of care by, inter alia, failing to inspect roof and to warn of danger – Whether occupier put on notice of potential danger – Breach of duty denied – No breach of duty found - CONTRIBUTORY NEGLIGENCE – Allegation that plaintiff failed to take proper care of own safety – Contributory negligence not found - DAMAGES – Assessment of damages for personal injury –Past and future economic loss – Gratuitous domestic assistance.

LEGISLATION CITED: Civil Liability Act 2002 ss 5R, 13, 15
Conveyancing Act 1919 s 66R
Uniform Civil Procedure Rules 2005 Schedule 5

CATEGORY: Principal judgment

CASES CITED: Aslanidis v Atsidakos, NSWCA, 13 February 1989
Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479
Baker v Gilbert [2003] NSWCA 113
Balesfire Pty Limited t/as The Gutter Shop v Jamie Adams & Ors; Jamie Adams v Balesfire Pty Limited t/as The Gutter Shop & Ors [2006] NSWCA 112
Drotem Pty Limited v Manning [2000] NSWCA 320
Hackshaw v Shaw (1984) 155 CLR 614
Ordukaya v Hicks [2000] NSWCA 180
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7
Perkovic v Owners Strata Plan 8806 [1999] NSWCA 153
Short v Barrett, NSWCA, 5 October 1990, unreported
Stannus v Graham (1994) Aust Torts Reporter 81–293
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Thompson v Woolworths (Qld) Pty Limited (2005) 221 CLR 234
Uniting Church in Australia Property Trust v Takacs [2008] NSWCA 141

PARTIES: Leslie Gaskin (P)
Matthew Ollerenshaw (D)

FILE NUMBER(S): SC 2006/266967

COUNSEL: M Maxwell and M Gilbert (P)
R A Cavanagh (D)

SOLICITORS: Brydens Law Office (P)
Henry Davis York (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

FRIDAY, 16 JULY 2010

2006/266967 LESLIE GASKIN v MATTHEW OLLERENSHAW
JUDGMENT

1 HIS HONOUR: The plaintiff, Leslie Gaskin, claims damages from the defendant, Matthew Ollerenshaw, for serious injuries which he suffered on 9 January 2003 whilst he was engaged in painting the roof of the house at 112 Solander Road, Kings Langley (“the Kings Langley house”), which the defendant and his wife were purchasing.

2 The plaintiff was an experienced roof painter having been in the business for about 30 years. He had learned his trade from his father and had taught his wife, son and daughter the trade as well. The defendant retained him as an experienced roof painter, working as an independent contractor, to paint the roof of the Kings Langley house.

3 The plaintiff climbed up on to a flat “Cliplock” style steel roof suspended above a concrete floored verandah. From that roof, he started to paint the sloping asbestos sheet roof of the Kings Langley house. The flat verandah roof collapsed. The plaintiff fell about three metres to the concrete floor and was seriously injured.

4 He claims that the defendant was negligent and that this negligence was the cause of the plaintiff’s injuries.

5 For the reasons which follow, I am of the view that the plaintiff’s claim ought be dismissed and judgment ought be entered for the defendant.

The Pleaded Case

6 The plaintiff’s case is pleaded in a Second Further Amended Statement of Claim filed 17 March 2010. That document pleads some facts relating to the engagement of the plaintiff as a self-employed roof restorer by the defendant to carry out work at the Kings Langley house. Some important facts are pleaded. They are:

“4 The Defendant represented to the Plaintiff that a building report obtained previously showed that the roof was ‘weatherproof’ and ‘waterproof’, and was in proper, safe order.

7 The pleading does not articulate the nature and content of the duty which it is said was owed by the defendant to the plaintiff. It does, however, plead 19 particulars of negligence from which one can glean the nature of the duty which it is said was owed. Some of those particulars ultimately were not the subject of evidence and were not relied upon. It seems to me that by the conclusion of the case the particulars of negligence upon which the plaintiff relied were these:

“(b) Failing to advise the Plaintiff of the true condition of the roof;

(c) Failing to inspect and determine the true condition of the roof;”

…

(k) Saying to the Plaintiff that a building inspection report had been obtained which reported that the verandah roof was structurally safe when in fact the report specifically stated that ‘no inspection was carried out from on the roof’’

(l) Saying to the Plaintiff that it was safe for him to stand on the verandah roof for the purpose of painting the fibro roof in circumstances where the Defendant knew, or ought to have known, that the inspection giving rise to the building inspection report stated that the timber fascia boards, to which the verandah roof was attached, showed signs of ‘wood decay’;

(m) Failing to obtain a subsequent building inspection report in circumstances where the Defendant knew, or ought to have known, that the inspection giving rise to the original building inspection report did not include an inspection of the verandah roof;

(n) Failing to obtain a subsequent building inspection report in circumstances where the Defendant knew, or ought to have known, that the inspection giving rise to the original building inspection report was based on ‘visual inspection only’ and specifically warned that areas of painted finish may have concealed wood decay from visual inspection;

…

(p) Permitting the Plaintiff to undertake the roof work by standing on the verandah roof in circumstances where the Defendant knew, or ought to have known, that the pest inspection report concluded that there was ‘a high risk of concealed pest workings to roof timbers’;

(q) Failing to warn the Plaintiff that the verandah roof had not been properly inspected;

(r) Failing to take reasonable precautions for the safety of the Plaintiff;

8 In a defence filed on 29 September 2008 to a previous version of the statement of claim, the defendant admitted that he engaged the plaintiff as a contractor to paint the roof of the Kings Langley house and admitted that he was working on the roof on 9 January 2003. The defendant denied negligence and in the alternative pleaded that the plaintiff had been guilty of contributory negligence.

9 A pleading making a claim for reduction in damages under s 151Z of the Workers Compensation Act 1987 was abandoned by counsel for the defendant at the commencement of the proceedings.

10 The plaintiff’s second further amended statement of particulars filed on 11 June 2010 noted that he had sustained the following injuries:

“1 Subtrochanteric fractures of left femur;

2 Injury to the back with compression fractures of T12, L1 and L2 with spinal cord damage;

3 Injury to bowel and bladder;

4 Injury to the pelvis requiring hip replacement;

5 Injury to the left knee;

6 Injury to the neck with wedge fracture at C7 and disc herniation at C6/7;

11 He claimed extensive disability and damages arising from these injuries.

The Plaintiff and his History prior to December 2002

12 The plaintiff was born in the United Kingdom in 1958. He attended school in the United Kingdom until he was 12 years old.

13 Together with his parents and family he migrated to Australia in 1970. Although still only 12 years old, the plaintiff did not attend school again. After arriving in Australia, the plaintiff’s work has consisted of a variety of labouring jobs but principally, he has been a roof restorer and painter. That was his father’s trade, and upon arrival in Australia the plaintiff worked with his father for considerable periods of time.

14 At the age of 13, the plaintiff was diagnosed with juvenile onset Type 1 diabetes. He has since that time been insulin dependent and self-administers insulin when required.

15 He met and married Ann Gaskin in 1978. They have three children who are now adults. Their son who is now 27 years old was diagnosed in 2003 with a form of schizophrenia. He continues to suffer from that condition.

16 The plaintiff has a number of grandchildren and at present is living on a property where he and his wife occupy the house, their daughter and grandchildren occupy one caravan and their son occupies another caravan. There is a third caravan on the property which seems to be unoccupied. Their third child, a daughter, does not live with them.

17 In 1986, the plaintiff was engaged in painting a roof and slipped on some paint. He fell from the roof but was able to take hold of the gutter of the roof before he dropped to the ground. He ultimately dropped to the ground and injured his back. He was in hospital for a period of about two weeks or so. He returned home and had about six weeks off work but then returned to work with his father whilst wearing a brace on his back. He continued to wear the brace for about ten months. He said that, once he removed the back brace, he was able to continue to work without any further problems with his back.

18 In 1995, when the plaintiff was living in Tasmania, he was walking in a caravan park and tripped over a wire and fell. He fractured his left shoulder in the fall. He seems to have recovered well from that injury and was able to return to work as a roof painter. At about that time, as a consequence of his diabetes, the plaintiff suffered a condition known as bleeding retinopathy which resulted in a series of laser treatments to both eyes. Again, after a period away from work, he returned to work and was able to continue with his trade.

19 The consequence of both the injury to the left shoulder and the laser treatment was that he was unable to work for a period of approximately 18 months in 1995 and 1996.

20 After his time away from work in 1995 and 1996, the plaintiff was able to return to work, undertaking roof repairing, restoration and painting. He employed his son. He generally undertook three to four jobs per week.

21 In 1999 and 2000, it became necessary for the plaintiff to obtain a contractor licence so as to be able to undertake roof restoration and painting work in New South Wales. He was able to obtain that licence which was issued by the Department of Fair Trading. The licence certified that he was qualified as a “… painter (to roof tiles only), roof tiler (repairs only)”. In 2001, the plaintiff also satisfactorily completed an accredited course for Occupational Health and Safety Induction Training for Construction Work. That was a course conducted so as to satisfy the requirements of the Construction Safety Amendment (Amenities and Training) Regulations 1998.

22 On 24 March 2001, the plaintiff was a pedestrian and was hit by a motor vehicle travelling at low speed. He suffered a closed head injury, and an injury to his neck. He was admitted to the Wollongong Hospital where he remained for about seven days. An x-ray taken on 24 March 2001 reported some degenerative changes of a mild kind. It also reported that there appeared to be:

“an anterior wedge compression fracture involving the body of C7 with approximately 30% height loss anteriorly.

23 After his discharge from hospital, his general practitioner, Dr Ann Ellacott, referred the plaintiff to the Illawarra Brain Injury Service. She continued to see him from time to time in 2001 and 2002, including in October, November and December 2002.

24 There is no doubt that the plaintiff suffered a degree of injury and disability from his motor vehicle accident in 2001. There was a dispute between the parties as to the extent of that disability and, particularly, the period during which that disability subsisted. The plaintiff, his wife and daughter all gave evidence which was substantially to the effect that, by about mid 2002, the plaintiff commenced a real improvement from his symptoms and disabilities so that by October or November of 2002 he was “… back to his old self …” and was fully fit for work. It is to the plaintiff’s credit that he made attempts in December 2002 to get back to work and had commenced seeking out work by placing advertisements on telegraph poles and the like. That was how the defendant came to know of the plaintiff and how he contacted him.

25 However, the contemporaneous medical records which are to be found in Ex 5 do not bear out the same optimistic picture of his health as was described by the plaintiff, his wife and daughter. Having regard to the fact that eight years or so has passed since the events of 2001 through to late 2002, I regard the contemporaneous records as likely to be the most accurate source of the facts about the state of the plaintiff’s health. Where there is divergence between those records and the oral evidence, I prefer their account of events of the time contained in those contemporaneous records.

26 In August 2001, the plaintiff reported to Dr Chan, a specialist in rehabilitation medicine at the Illawarra Brain Injury Service, that he had significant symptoms of constant headache over the vertex and occipital region which was causing him frustration. He reported problems with sleeping, and occasional feelings of nausea.

27 The plaintiff at that stage told Dr Chan that he was wanting to get back to work in the trade with which he was familiar, namely roof restoration and painting. Dr Chan diagnosed him as having symptoms of depression including reduced concentration, dysrhythmia and reduced interest including sexual drive. It was Dr Chan who started him on an antidepressant, Efexor, and pain medication. Dr Chan regarded the plaintiff as unfit for work at that time.

28 The plaintiff was reviewed by Dr Jonathon Wyatt, a rehabilitation specialist at the Illawarra Brain Injury Service, in September 2002. The plaintiff reported to Dr Wyatt that since his August 2001 visit to Dr Chan he had suffered from daily headaches, depression, cognitive deficits, “dizzy spells” and poor impulse control. Dr Wyatt noted some associated neck pain with his daily headaches. He noted that the plaintiff still had a number of symptoms of depression. The plaintiff told Dr Wyatt that he kept notes in order to remember appointments. I observe that this is after a time when the plaintiff and his family say that the plaintiff had significantly improved.

29 On examination, Dr Wyatt noted some physical limitations of movement in the neck and various other degrees of tenderness around the upper part of the body. Dr Wyatt thought that the plaintiff presented with symptoms consistent with a traumatic brain injury. He thought he remained depressed and should continue on antidepressant medication. Dr Wyatt thought that the plaintiff ought have a formal neuropsychological evaluation to clarify the extent of his cognitive deficit, and the lasting effects of the 2001 motor vehicle accident.

30 He concluded that the plaintiff was currently unfit to return to his normal duties and declared him to be unfit for work for the next three months (ie, up to December 2002).

31 Although the material to which I now refer appears in a report of 3 April 2003 from Mr Ross Barnes, a clinical psychological at the Illawarra Health Service, which was at a time after the plaintiff’s accident, it usefully captures contemporaneous material of the time before the plaintiff was injured on 9 January 2003.

32 Mr Barnes records that the plaintiff attended at the Rehabilitation Psychology Department of Port Kembla Hospital for initial assessment on 13 November 2002 when he was accompanied by his wife. He also records that the plaintiff was subsequently seen for testing on 29 November 2002 and 17 December 2002.

33 Mr Barnes recorded the following history given by the plaintiff:

“Since the accident, Mr Gaskin complained of having intermittent headaches, which have improved over time due to physiotherapy and rest. He also reported significant problems with memory loss since the accident, particularly in short-term memory. He stated that his attention span had declined, he would often lose things around the caravan, and forget the names of both familiar and unfamiliar people. He said that he reads much less now because of the hassle of having to re-read pages. …… He had noticed some topographical disorientation when driving along unfamiliar routes.”

34 Mr Barnes also obtained a history from the plaintiff’s wife, Mrs Gaskin. He recorded it in this way:

“His wife of 24 years reported that since the accident he had become less loving, intolerant, flattened in affect, and short-tempered, although the latter had improved somewhat with medication and counselling with the IBIS social worker. She felt that he had struggled with depressed mood since the accident, which had led to poor sleep, reduced libido, fluctuating levels of appetite, social withdrawal, and disinterest in significant others and himself (eg, self care). This is supported by Mr Gaskin’s responses to the Depression Anxiety Stress Scales, which indicated severe levels of stress and depressed mood, and anxiety levels within normal limits for the week preceding the initial assessment. Mr Gaskin identified a number of ongoing psychosocial and financial stressors that were affecting him at the time of the assessment. Following the accident, he reported that his consumption of alcohol had increased slightly from minimal to social/moderate levels, and he tended to self-medicate, combining Panadeine Forte and alcohol (as a last resort) to cope with his headaches.”

35 Mr Barnes administered a series of tests with which the plaintiff was compliant. Because the tests were not completed due to the plaintiff’s accident, the subject of these proceedings, Mr Barnes notes that the findings obtained on tests assessment are somewhat tentative. Nevertheless, Mr Barnes concluded his report with this material:

“ Summary and Recommendations

36 The pre-accident picture of the plaintiff is completed by reference to the notes of his general practitioner which are also found in Ex 5. Those notes demonstrate that, on 3 June 2002, the plaintiff attended at his general practitioner’s surgery where he was prescribed both Efexor and Panadeine Forte. This suggests that he was continuing at that stage to suffer from symptoms of depression and pain to an extent which required prescription medication for relief.

37 Although he may have attended earlier (the notes are indistinct), the plaintiff certainly attended his general practitioner in October 2002 and made a complaint to his general practitioner about his mood. His general practitioner again prescribed Efexor, an antidepressant, and also Panadeine Forte for pain.

38 He again attended on 29 November 2002 when the consultation concerned, amongst other things, his mood. At that time, his general practitioner certified him as unfit for work for three months (ie, until the end of February 2003) and asked him to return for a review in two weeks’ time.

39 He returned for review in December 2002, largely it appears with respect to his diabetic condition which was poorly controlled, and his medication for his diabetes was altered.

40 Whilst I am prepared to accept that throughout the latter half of 2002, the plaintiff showed some improvement in his condition, and as I have noted above, it is to his credit that he made arrangements to return to work, I do not regard him as having fully recovered from his physical injuries and depression sustained in the 2001 motor vehicle accident by the end of 2002. If he was fully recovered by then, I do not think that he would have bothered to attend for neuropsychological testing on two occasions in November 2002 and on one occasion on 17 December 2002. I do not think he would have continued to visit his general practitioner on the occasions to which I have drawn attention. I do not think he would have continued to obtain antidepressant medication, nor relatively strong pain relief medication.

41 As well, I note that Dr Wyatt in September 2002 thought that he was unfit for work for the next three months. His general practitioner thought the same on 29 November 2002.

42 These opinions expressed by experts stand in marked contrast to the oral evidence of the plaintiff and his family. As I have said earlier, I prefer the opinions of the experts and the contemporaneously recorded notes.

43 I am of the view that, by the time the plaintiff came to undertake the work on 9 January 2003, that he had recovered a part of his working capacity but not all of it. The extent of his working capacity will require further consideration when considering what, if any, component for lost earning capacity needs to be attributed to the injuries he sustained on 9 January 2003.

The Plaintiff’s Liability Case – An Outline

44 At trial, the plaintiff argued that the defendant was in a position different from an ordinary householder and owed him a duty of care with respect to the defects which led to his fall, because:

45 With respect to the existence of a breach of the duty of care, the plaintiff argued at trial that the defendant had acted unreasonably because (either individually or collectively):

46 The plaintiff sought to support these allegations by pointing to various other matters which, he submitted, made more likely both the existence of a duty of care and a breach of it. These matters included the intention of the defendant with respect to the property, the nature and content of a conversation between the plaintiff and the defendant at the time a quotation for the work was sought and given, and also the nature and content of a number of conversations after the plaintiff’s accident.

47 The defendant put in issue all of these matters which relate to liability.

48 It will be convenient to identify the central, and largely undisputed facts, and then to deal with various of the disputed facts. It will not be necessary to deal with every dispute, because many are not central to the determination of the issues and cast little light on those central disputed issues.

The Work at Kings Langley and the Plaintiff’s Accident – The central and uncontroversial facts

49 Both plaintiff and defendant agree that the first contact between them came about when the defendant telephoned the plaintiff having obtained his contact details from an advertisement on a telegraph pole. Arrangements were made to meet at the Kings Langley house on 30 December 2002, in order for the plaintiff to give the defendant a quote for painting the roof.

50 There is considerable divergence in the evidence about what occurred at the Kings Langley house on 30 December 2002.

51 At this point, there is no need for me to examine the detail of that dispute. Both parties are agreed that after some discussion the plaintiff provided the quote, which is Ex C, to the defendant.

52 That quote noted that the plaintiff was to paint the roof with acrylic paint, consisting of two primer coats and two top coats and that it was to “… to be done on the 10-1-03 or sooner. Please ring …”. The sum quoted was $1,200.

53 Contact was made between the plaintiff and defendant, although the date is undisclosed, and arrangements were made for the plaintiff to return to the property on 9 January 2003. Again there is some divergence in the evidence about the detail of this contact which is unnecessary to resolve.

54 On 9 January 2003, the plaintiff travelled from his home which was then at Windang, a little to the south of Wollongong, to Rydalmere where he collected the paint to undertake the job, and then proceeded to Kings Langley. His recollection was that he arrived there at about 9.30 am. According to the plaintiff, he had a short discussion with the defendant indicating that he was there to paint the roof. He asked the defendant to plug in an electric cable which operated his painting equipment. There was a discussion about how long he expected the job to take. The plaintiff then set about unloading various ladders and erecting them. It seems that he erected a ladder at the back of the house away from the street and also erected one at the front of the house resting on the edge of the flat verandah roof. He then set up his machinery and prepared the equipment to enable painting to occur.

55 The plaintiff’s painting equipment was located on a trailer which was attached to his motor vehicle. Although in evidence a number of witnesses described the vehicle as “a ute”, the photographs of 9 January 2003 (Ex E), show that the plaintiff’s vehicle was a sedan towing a trailer. The motor vehicle and trailer were parked in the driveway of the house. The plaintiff had paint lines consisting of two 30 metre lengths of hose which allowed him to paint the roof via a six foot long pole gun which meant that he did not have to walk on the fibro roof. However, he clearly needed to be able to stand near the bottom of the sloped fibro roof to carry out his task.

56 After the plaintiff climbed on to the flat verandah roof at the front of the property he commenced to paint the sloping roof. He reached the corner of the sloping roof at the point where the verandah roof is immediately above the main entrance to the house. He described what happened in this way:

“I was still standing on the skillion roof then. I got to the corner. I had to step into the metal gully to reach up to the furthest point. I sprayed that. I got about two metres across the roof, was spraying [sic]. I stepped all my weight on to my left foot which was still on the skillion roof. It had never come off. And I heard a bang. … I woke upon the ground. … The skillion had dropped like a huge trapdoor, completely from end to end and from the sides totally down and was leaning fully intact against the support poles at the front of the house.” (T26)

57 A number of photographs were tendered of the scene after the plaintiff’s fall. They corroborate what the plaintiff said. Exhibit E, a photograph taken whilst the fire brigade was still present on the property but after the plaintiff had been taken to hospital, clearly demonstrates that the roof above the verandah had parted where it was connected to the house below where the plaintiff said he was standing. The photographs in Ex F, taken some time after the event, demonstrate that the timber beam which supported a vertical timber fascia board appears to be deteriorated and there is evidence of some rotting of the timber.

58 The plaintiff called an expert engineer, Mr Robert Nicholson, to give an opinion about what had occurred. He was the only expert called on this issue. Mr Nicholson said in his report (Ex H par 6.6) that the bearer of the verandah roof which had been nailed to the timber fascia came away with the nails pulling out of the rotting fascia. In evidence, he confirmed that his view had not changed since he had written the report. He gave this evidence in cross examination:

“Q. Your view, Mr Nicholson, is essentially set out in paragraph 6.6, isn't it, which is to the effect that the bearer of the verandah roof had been nailed to the timber fascia, came away with nails pulling out of the fascia?
A. That's correct.

Q. That's what caused the roof to collapse, isn't it?
A. That's correct. It wasn't just the nails pulling out but the fact that the timber had deteriorated to such an extent that it had no structural nature left in it. It was soft wood and it had been subject to wet rot.

Q. Your view is that just the use of nails to affix the bearer to the fascia was an inappropriate method?
A. Yes, I would agree with that. There are structural ways of doing it, and I had reference to them in my initial report, in my draft report we might call it.

Q. You say in paragraph 7.5 that on your examination of the WorkCover photographs it clearly shows that the defects in the timber fascia were covered up by metal covers?
A. They were covered by metal covers, yes.

…

59 Mr Nicholson agreed that the fact that the verandah roof was attached by a defective method, namely nailing through the fascia board only, and the fact that the beam behind the fascia board was itself the subject of wood rot, could not be seen by any person who was standing on the concrete verandah floor looking up or else standing on the roof and looking down.

60 His opinion, which was accepted by both parties, was that in order to uncover the defects to which I have just referred it was necessary for an expert builder to have either removed the ceiling panels from underneath the roof and exposed the fascia board and beams, or else to have removed the Cliplock roof cladding from on top and do the same. Even then, he said, it may not have revealed the way in which the timber had been affixed with nails only to the fascia board.

61 On the basis of this evidence, I am satisfied that this defect was not discoverable unless an expert builder undertook building work which included demolition in part of the existing structure by removal either of the ceiling panels underneath the roof or else of the Cliplock aluminium roofing. Mr Nicholson estimated that it would take two to three hours work to remove and replace the underneath ceiling panels or else a similar period of time for undertaking the removal of the Cliplock roofing and accessing the verandah roof frame from above.

62 What is also clear from the evidence of Mr Nicholson and the scene depicted in the photographs is that the plaintiff did not fall through the roof because the Cliplock panelling was inadequate to hold his weight. Rather, what occurred was that the entire frame of the roof pulled away from its fixing to the side of the house and the whole roof fell down as though hinged on the front supporting pillars.

63 When the plaintiff came into contact with the ground he sustained serious injuries.

64 Ambulance and fire brigade officers were called to the scene. The fire brigade secured the scene including by placing tape around the front of the building to prevent anyone approaching, at least, the front verandah of the building.

65 According to the ambulance report which forms part of Ex M, extraction of the plaintiff from the collapse scene was delayed until the fire brigade could secure the structure. The ambulance report records the following:

“O/A [on arrival] found [male] lying [right] lateral on concrete verandah with awning structure unsupported, unstable [with] possibility of falling onto [attending] ambulance officers. Police and fire brigade called. Structure secured prior to extraction of [patient]. O/E [on examination] [patient] conscious, lucid stating he had fallen from roof when awning collapsed landing heavily onto [left] leg.”

66 The ambulance report records that the first call taken by the Ambulance Service was at 11.16 am, they arrived on the scene at 11.25 am and made contact with the plaintiff at 11.27 am. The first assessment of the plaintiff’s condition took place immediately and is then recorded at 11.30 am, by which time he was being administered methoxyflurane, an emergency anaesthetic, via an inhalant. An intravenous drip was established and maintained in place at least from 11.33 am until 12.15 pm when, it seems, the plaintiff was extracted from the verandah to be placed in the ambulance. It departed from the scene at about 12.21 pm.

67 The ambulance report records that the ambulance officers estimated the time of the incident to have been 11.10 am. There does not seem to be any particular basis for this estimate. But the ambulance was summoned promptly after the plaintiff’s fall, and so it was probably within a few minutes before 11.16 am that the accident happened.

68 I have taken some time to draw attention to the features of the ambulance report because it was completed contemporaneously with the events and is likely to be the most accurate source of when the accident occurred and what happened at the scene.

69 The plaintiff was taken by the ambulance to the Westmead Hospital where he arrived at about 12.40 pm.

70 It will be necessary in due course to describe the plaintiff’s injuries and their consequences. It is sufficient presently to note that he was diagnosed with a subtrochanteric fracture of the left femur and compression fractures of the T12, L1 and L2 vertebrae. His femoral fracture was the subject of an operation performed on 10 January 2003 when an intra medullary proximal femoral nail was inserted. He remained in hospital until 4 February 2003 when he was discharged to return home to his family.

Some Disputed Issues of Fact

71 As I have said, the foregoing is a simplified version of the facts which are largely uncontroversial. However, there were a number of differences in the evidence about what occurred at the Kings Langley house on 30 December 2002 and on 9 January 2003. There were also differences about what occurred whilst the plaintiff was in Westmead Hospital. There was also a significant dispute about the intentions of the defendant with respect to the purchase and renovation of the Kings Langley house, his possession or knowledge of two pre-purchase inspection reports, as seen from his dealings with Mrs Katharine Whiteley, the principal of Non Stop Conveyancing (“NSC”).

72 Although I think that a number of the factual disputes are on the margin of relevance, since they have been the subject of considerable cross examination and submission, it is appropriate for me to resolve those factual issues.

73 The disputed issues of relevance are:

(a) What were the intentions of the defendant and his wife when they purchased the Kings Langley house;

(b) When and in what circumstances did the defendant first obtain access to the Kings Langley house;

(c) Was any internal work being carried out on the Kings Langley house on 30 December 2002;

(d) When did the defendant or his wife receive the pre-purchase inspection reports; when did they learn of the contents of those reports;

(e) Did the defendant in the course of any conversation at the Kings Langley house on 30 December 2002 make the representations which are pleaded by the plaintiff, or else recounted by him in his evidence;

(f) Was the account given by Mrs Hobby, the plaintiff’s daughter, of what occurred at the accident scene on 9 January 2003 accurate;

74 I will address each of these factual issues in the order which I have just set out.

Intentions of the Defendant and his Wife

75 A theme which underlies the evidence given by the plaintiff was that he had been told by the defendant on more than one occasion that it was the defendant’s intention to renovate the premises at Kings Langley to one extent or another and to sell it quickly. This can be seen from the plaintiff’s evidence:

All I want to do is paint it so I can sell it quickly, clean it up

Look I don’t want to spend that money on it, I just want to clean it, it’s going to be sold and out of it

We’re doing this house up to sell it

(b) The conversation between the plaintiff and the defendant on 9 January 2003 – “ Get it done as quick as. I am going to get painters in here to do the outside and you’re holding everything up so get on with it. ” (T24.33)

.

76 A similar theme was seen in the evidence of Mrs Hobby where she said that during the many phone calls which occurred on 9 January 2003 the defendant said to her words to the effect, “When is this roof going to be done? I need to get this house painted so I can get it on the market, I need it done.” (T115.11). In cross examination she gave an account of what she said was the third conversation of the afternoon, where the defendant said to her “Look I just want to know when is somebody going to come out and paint my roof, I need this fixed, I need to get it on the market.” (T130.41)

77 Based on these conversations, which the plaintiff submits ought be accepted, it is contended that the defendant and his wife were engaged, in effect, as property developers attempting a speedy and cheap “make-over” by way of a renovation which led to the defendant urging the plaintiff to take a short cut with safety, in the interests of saving the defendant money.

78 The evidence of the defendant and his wife was that they intended, having purchased the property to undertake some minor renovation by way of painting and general tidying up, move into the property and, having lived there for some time, to ultimately to sell it. The defendant’s wife was pregnant at the time of the exchange of contracts on 30 November 2002 and gave birth on 5 December 2002.

79 The defendant’s wife, Mrs Kylie Ollerenshaw, said in her evidence in chief that the purpose for which they were buying the house was: “To move in, do some work within the house and to increase the value and down the track to sell it.” (T296.46) Mrs Ollerenshaw was cross examined about her purpose. She adhered to what she had said in her evidence in chief. I accept that evidence.

80 No instructions were given at the time the property was purchased, or when settlement occurred, to NSC to prepare a contract for sale. It is a requirement of the relevant legislation that before a property can be offered for sale there needs to be a contract available for prospective purchasers: s 66R Conveyancing Act 1919. The defendant and his wife had not taken this first step at any time prior to the accident with respect to the Kings Langley property.

81 In January 2003, it was the understanding of the defendant that if he did not move into and live in the property for a period of at least 12 months, that he would not gain a benefit by way of a reduction in capital gains tax. Hence, he said in his evidence he did not intend to sell the property quickly. Although the property was in fact sold in a relatively short space of time, the defendant gave evidence that this was caused by a change in his financial circumstances. I accept that evidence.

82 Neither the defendant nor his wife were in the business of being property developers, even in a small way. They were not in the business of buying houses, doing them up and on-selling them at the first available opportunity. This was the third house that the defendant had owned. He initially joined as a one third holder of a property with various members of his family in the purchase of a property. He and his wife had owned one house previously, and were living in it, with his mother, at the time of the plaintiff’s accident.

83 Rather, so it seems to me, they were going to purchase this house to live in it, particularly since they had a newborn baby. The house was to have some minor renovation work done to it, particularly tidying it up, cleaning it and painting it to make it more pleasant to live in. I have no doubt that at some time in the future, at least in the order of a year or more, they might have considered selling and upgrading their premises with the assistance of an increase in the property value. However, that is a very long way from the underlying motivation about which the plaintiff asserts he was told.

84 Since I am satisfied that the defendant and his wife did not have the motivation which the plaintiff says he was told about, it is highly unlikely that the contents of the various conversations to which the plaintiff made reference in his evidence ever occurred in the terms which the plaintiff or his daughter recount.

First Access to the Kings Langley House

85 Contracts for the purchase of the Kings Langley House were exchanged on 30 November 2002 (Ex AA). Clause 25 of the contract provided that the cooling off period was a maximum of ten working days. The last day for its expiry was Friday, 13 December 2002.

86 On 12 December 2002, NSC wrote to Grech Partners, the solicitors for the vendors, and inquired whether the vendors would permit the defendant and his wife to “… move into the above property under licence rent free after the expiry of the cooling off period until settlement is effected …” (Ex U).

87 By facsimile dated 13 December 2002, Grech Partners responded and said:

“Our client has planned to utilise the period after Christmas to complete the clean-up at the property. Consequently they would prefer not to allow the purchasers occupation. As settlement is due on Monday, 13 January perhaps we can endeavour to settle on say, Friday, 10 January.” (Ex V)

88 The defendant gave evidence (T211) that he first obtained the key to the Kings Langley house on 8 January 2003 from Ray White Real Estate at Blacktown. He said he obtained the key for the purpose of carrying out a final inspection prior to settlement. He said that a real estate agent was with him whilst he did the final inspection and told him that: “I could keep the key to start work there the following day as we were settling on the 10th” (T212.5). He repeated this evidence in cross examination.

89 The defendant’s wife gave evidence in chief that her husband had told her on the night of 8 January that he had obtained the keys and he was going to the Kings Langley house the next day to start doing some work. She was not directly challenged on this evidence.

90 Exhibit 3 is a contemporaneous file note taken by Mrs Whiteley at 3 pm on 10 January 2003. It reads:

“Spoke to Matthew and told him that his purchase settled. I told him to collect keys from the agent. He said he got them a couple of days ago.”

91 Exhibit 4 is a contemporaneous file note taken by Mrs Whiteley at 3.30 pm on 14 January 2003. It is in the following terms:

“Spoke to Kylie Ollerenshaw. Spray painting the roof … went onto the verandah roof and it collapsed. This happened at approx 11 am on Thursday 9/1/03. I told Kylie to give the builder/contractor the vendors’ details as they still owned the property as at 9/1/03. O/C [our client] took the keys on 8/1/03 without notifying me, so I said that this could be a problem. … [undecipherable] They may need to claim on the insurance but wait till they are contacted and let me know if they are contacted.”

92 There was no evidence called from either the vendor of the Kings Langley house, or the real estate agent, to suggest that there had been an occasion earlier than 8 January 2003, when the keys had been handed over to the defendant, and that the defendant had been allowed access at any earlier time.

93 The only evidence which stands against the defendant first obtaining the keys, and therefore initial access to the Kings Langley house on 8 January 2003 is that given by the plaintiff as to what he observed on 30 December 2002. If his observations were correct, then the defendant must have had the keys and hence access to the Kings Langley house well before 8 January 2003. For reasons which I discuss later in this judgment, I do not accept the plaintiff’s version of events on that day.

94 I am satisfied that the defendant first came into possession of the keys to the Kings Langley house on 8 January 2003 and first entered the house for the purpose of doing work on 9 January 2003.

Work on the Property on 30 December 2002

95 It is the plaintiff’s evidence that, on 30 December 2002 when he visited the Kings Langley house for the first time in order to give a quote for the painting of the roof, there was a degree of internal construction work which had been and was continuing to be carried out. The plaintiff said that he looked into the front room which appeared to have been gutted with only the framework required for holding gyprock panels remaining. He saw that the panels had been removed and as well that the ceiling had been demolished.

96 He said that he noticed that on this day there were four people working on the property. He observed that one was outside clearing the garden, including shifting plants and rocks in the garden. He said he saw two other people inside the house one of whom was pulling off the plasterboard and the second was sweeping the floor. In addition, the defendant was present.

97 The defendant denies that on 30 December 2002 any work had been commenced on the property and denies that there were four people present on the property. The defendant’s case is that he did not have internal access to the house at that time but merely showed the plaintiff the roof from outside the house on the front lawn and asked him to give a quote from there.

98 It is to be remembered that on 13 December 2002, the vendors’ solicitors had informed the defendant, via the facsimile to Mrs Whiteley at NSC, that their clients were not prepared to allow the defendant and his wife to move into the property under licence because the vendors planned to utilise the period after Christmas to complete the clean up of the property which they were endeavouring to finalise by the time of settlement. 30 December was five days after Christmas and would fall within the period which the contemporaneous records suggest was to be used by the vendors to clean up the property. It certainly fell well within the period during which the vendors would not permit occupation by the defendant and his wife.

99 As at 30 December 2002, about two weeks remained before settlement was due. It is unlikely that the vendor would have permitted substantial renovations of the kind described by the plaintiff without specific arrangements being made with the defendant as to what the consequences would be if the settlement did not proceed. There is no evidence of any correspondence between NSC and Grech Partners, of the kind which would be expected, addressing such arrangements. As well, there is no evidence of any correspondence in which any request was made for permission to undertake the renovations on 30 December 2002. Nor is there any evidence of any arrangement being made for the key to be handed over prior to 30 December 2002 to enable the renovations to commence.

100 The evidence of Mr Damon King is to the effect that work similar to that described by the plaintiff in fact took place on 9 January 2003. Although it might fairly be said that Mr King’s evidence had suffered from the elapse of more than seven years since the events in question, he was firm in his evidence that the first time he went to the property was on the day the accident happened to the plaintiff. I accept that evidence. The description of work which he gave in his evidence as to what he did at the property is very similar to the description of some of the work which the plaintiff said was being carried out on 30 December 2002.

101 The plaintiff submits that his evidence is corroborated by the circumstance that the defendant’s wife took out, in their name, an insurance policy with GIO Australia at 7.42 am on 30 December 2002 over the Kings Langley house. The plaintiff submits that the obvious purpose for this was to have insurance coverage in place at the time the work commenced on 30 December 2002, and for the purpose of providing insurance with respect to that work.

102 Some features of the GIO Australia policy (Ex X) ought be noted.

103 Firstly, it is a home and contents policy, and not a policy specifically written to insure construction work, albeit that the work here could be described as relatively minor.

104 Secondly, the only part of the policy which would be relevant to renovation work of the kind being carried out is the legal liability coverage. That cover insured the defendant and his wife against legal liability to pay compensation for an accident that caused death or bodily injury to a third party, or loss or damage to property of a third party. Legal liability coverage was not available for renovations or reconstruction unless the costs did not exceed $50,000 or for asbestos caused disease, or for death or bodily injury to an employee of the defendant while at work for the defendant. If the GIO Australia policy was to cover the renovation work then there were potentially important and significant gaps in the coverage that one would have expected to have been addressed by other policies of insurance, or else by the specific consideration of the defendant and his wife. There is no evidence addressing either of these matters.

105 Thirdly, the evidence of the defendant’s wife was that the policy was arranged by her, albeit rather early, on the morning of 30 December 2002. She had been informed by NSC that it was necessary for her to arrange for an insurance policy prior to the settlement of the property taking place. She had been told that the policy needed to be made available to the mortgagee’s solicitors at least one week prior to settlement. Exhibit S contains this paragraph:

$130,000.00

and it must exactly read as Perpetual Trustees Australia Limited, Level 3, 39 Hunter Street, Sydney NSW 2000 as first mortgagee.

must

no later than ONE (1) WEEK PRIOR TO SETTLEMENT.

106 30 December 2002 was the first working day after Ex S was written. The arranging of a policy at 7.42 am on the morning of Monday, 30 December 2002, particularly considering that there was at least one day of public holiday during that week, is entirely consistent with the defendant’s wife attending to arrangements in advance of settlement which NSC had described as “imperative”. The fact that the arranging took place at a relatively early time of the morning is applicable by the fact that there was a new born baby in the family and Mrs Ollerenshaw is likely to have been up and about at that time in the morning.

107 Fourthly, the policy contains information which is consistent with the account given by the defendant’s wife. It records for example that the property is occupied by the defendant and his wife, that they had lived in the property for less than three months and had owned it for less than three months. It records that it was not under construction, reconstruction or renovation. On p 4 of the policy, it is noted that Perpetual Trustees Australia Limited holds the first mortgage to the property. Each of these matters are consistent with the policy being obtained for the purposes of it being in place at the time of settlement rather than for the purpose of a policy to cover the risks associated with minor renovations which were being done.

108 I accept the explanation of the defendant’s wife that the commencement of the period of insurance on 30 December 2002 was as a consequence of a conversation she had with the officer of GIO Australia to whom she spoke on the telephone rather than because renovation work was being undertaken on that day.

109 In short, I do not accept the plaintiff’s submission that the circumstances surrounding the obtaining of the policy of insurance from GIO Australia sufficiently supports the plaintiff’s evidence so as to enable me to find that he was correct in his recollection that work was being carried out on the Kings Langley house on 30 December 2002.

110 I reject the plaintiff’s account of what he saw on 30 December 2002. I am not persuaded that there was any work being carried out on the Kings Langley house by the plaintiff on 30 December 2002. I think it more likely that the plaintiff’s memory of seeing some work being carried out on the property was something which he saw on 9 January 2003.

111 I have undertaken this analysis and come to my conclusion without relying upon my earlier conclusion that the defendant did not have keys to, or access to the Kings Langley house as at 30 December 2002. However, my finding that I am unpersuaded that the defendant had the keys to the property on 30 December 2002 is consistent with, and further supports, the finding which I have made that there was no work being carried out by the defendant at the house at that time.

Defendant’s Knowledge of the contents of the Pre-Purchase Inspection Reports

112 There were two pre-purchase inspection reports (“the pre-purchase reports”) obtained on behalf of the defendant and his wife by NSC after the exchange of contracts for the purchase of the property occurred on 30 November 2002 and before the end of the cooling off period on 13 December 2002. They were:

(a) A pest report prepared by Diamond Network Services by Mr Wayne Beecroft of Prompt Pest Inspection Services of 6 December 2002 (Ex K) (“the pest report”); and

113 There is a dispute in the proceedings as to whether either of the pre-purchase reports were given to the defendant, or else whether the contents of either of them ever came to the notice of the defendant at any time prior to the plaintiff’s accident. It is appropriate that that dispute be resolved.

114 In his evidence, the defendant accepted that NSC was instructed to obtain both the pest report and the pre-purchase building inspection report. He acknowledged that he had been told prior to the expiry of the cooling off period that the reports had been obtained. It follows that the defendant knew before the plaintiff’s first coming to the Kings Langley house and before he commenced his painting work that, at the least, the two reports were in existence.

115 The defendant denied having a copy of either of the reports or reading either of the reports before the plaintiff’s accident.

116 Mrs Ollerenshaw, the defendant’s wife, gave evidence that she had given birth to her child on 5 December 2002 by caesarean section. She was in hospital for a period after that time and then returned home with her new baby. She said that she had specifically requested NSC to order the reports and she became aware of the existence of the reports when she spoke by telephone with Mrs Whitely at NSC. She said that she had asked Mrs Whiteley whether there was any concern with the reports and had received a negative response. She was unable to recall the date of that conversation. She denied receiving any copies of the documents prior to settlement and said that she first received them after settlement of the property. This necessarily places the receipt of the reports after the plaintiff’s accident.

117 Mrs Ollerenshaw said that she had communicated to her husband what she had been told by Mrs Whiteley at NSC, namely that the reports had come through and that there was nothing of concern in them. The defendant agreed that he had received such a communication from his wife.

118 When Mrs Katherine Whiteley, the principal of NSC was initially called to give evidence, she frankly admitted that whilst she recalled the defendant and his wife, she had no particular recollection of the transaction involving the purchase of the property at Kings Langley. She said that she had refreshed her recollection by reference to her file. She indicated that there was no note, fax cover sheet or covering letter on her file which recorded that she had provided the defendant or his wife with copies of the pre-purchase reports.

119 She gave evidence initially, based upon her usual practice, that she believed that she gave the reports to the defendant and his wife. She said that her usual practice was to do it either by hand (which I understood to mean that the reports were collected by her client), or else for the reports to be sent by fax or by email. She denied that at any time, with any client she had ever given any advice about the contents of pre-purchase reports. When asked why that was so she said this:

“Q. Why is that?
A. Because I'm not a pest inspector or a building inspector. I am a licensed conveyancer. I'm only insured as a licensed conveyancer, I'm not insured as a pest inspector or building inspector. I don't know anything about the reports. All I can tell you, I can order the reports, you must read the report, you must contact the inspectors if you have any queries and it is good idea to contact them anyway, they can tell you more by talking to you than what they can put in writing. The other thing is, we do not get to see the property when they are occupying a property. I don't get to see it. I would not know. I always get them to call the inspectors, call the experts. I have always done it for the last twenty years, that is the way I was taught.

120 In cross examination, she said that this was one of her first conveyances and that, on average, since that time she had conducted between one and three conveyances a week which may amount to 150 per year. She said that the reason she was unable to recall the details of the particular transaction was because it had occurred over seven years previously and also because she completed a lot of conveyances a year. When pressed in cross examination as to why there was no note recording that she provided a copy of these reports to the defendant or his wife, she said that she did not regard it as important to make such a note. It appears that the position now would be different as she would now have a record of it because:

“Well, I’ve got, you see, I’ve got emails now. I’ve got faxes now. I’ve got proof of everything now but at that stage we didn’t have that. The clients came into the office to pick up different documents including pest and building reports.” (T347.38)

121 Some of the exhibits assist in the resolution of this issue as they satisfy me that at the time Mrs Whiteley was acting for the defendant and his wife on the purchase of this property she had a fax machine which was in use. Exhibit J bears a fax header on it indicating that it was faxed from Choice Property Inspections on 6 December 2002. It was addressed to the “Conveyancing Manager” which I would conclude was Mrs Whiteley. Exhibit Q, a letter addressed to the defendant and his wife on 9 December 2002 on the letterhead of NSC discloses at the bottom of the page that Mrs Whiteley had a fax number.

122 Exhibits U and V are an exchange by facsimile of correspondence between NSC and Grech Partners, the firm of solicitors who were acting for the vendor.

123 To the extent that Mrs Whiteley was suggesting in her evidence that it was not feasible for the reports to have been provided to the defendant and his wife by facsimile, because she did not have those facilities available to her at the time, I reject it. I think that her memory is in error. Clearly there was a facsimile service, and it was in use at the time.

124 It has not been demonstrated in evidence, that the facsimile although available was used in this case to transmit either of the reports. There is no proof that it was. Mrs Whiteley denied it and there is no facsimile cover sheet or other note to indicate that the reports were sent.

125 It is highly unlikely that on 6 December 2002 or for the week afterwards, prior to the expiration of the cooling off period on 13 December 2002, that Mrs Ollerenshaw would have collected these reports in person. That is because she had given birth to her child on 5 December and was in hospital during that period. Even if she had left hospital, I think it most unlikely that she would have been driving a motor car within a week of having given birth by a caesarean section to pick up the pre-purchase reports.

126 After the hearing was concluded, and judgment was reserved, the plaintiff made an application to reopen his case in reply to recall Mrs Whiteley. The reason to recall her was that there was further evidence which she could give about the defendant being in possession of the pre-purchase reports.

127 For reasons which I delivered at the time, I allowed the application.

128 The effect of the further evidence of Mrs Whiteley was that contrary to the evidence which she had previously given, at a time shortly before the expiration of the cooling off period, she had a telephone conversation with the defendant in which they discussed the contents of the pest report (but not the building report). The conversation was to this effect:

“Mrs Whiteley: ‘The report says that there may be issues with termites; do you still want to proceed with the purchase?’

129 Mrs Whiteley said that this conversation came about because she had read the pest report. The defendant was not cross examined to suggest that he had any such conversation with Mrs Whiteley. No application was made for leave to further cross examine the defendant about this conversation. I infer from the absence of any such application that the plaintiff accepted that if the defendant was to be cross examined, he would deny the conversation.

130 Having considered this further evidence, I am satisfied that I should reject it. I do so for these reasons:

131 On the whole, I am not satisfied that there was a conversation with the content as deposed to by Mrs Whiteley in further evidence. I reject that evidence.

132 Having regard to the particular circumstances of the defendant and Mrs Ollerenshaw, including the fact of the recent birth of their child, I think it far more likely that in this case Mrs Whiteley did not follow her usual practice of requiring her clients to attend at her office to collect the pre-purchase reports. She was careful, I thought, to make it plain when dealing with the transmission to her clients (including the defendant) of pre-purchase reports that she did not have an actual recollection of what happened in this case but rather to say that she was relying upon her invariable practice. Experience dictates that whilst practices are an important guide to what occurred, they are rarely invariably followed.

133 I do not accept that in this case the defendant or his wife were provided with copies of these reports. I think it far more likely, and I find, that Mrs Whiteley told the defendant’s wife over the phone that there was nothing in these reports that needed to concern them. I accept the evidence of the defendant’s wife that she was informed by Mrs Whiteley that there was nothing of concern in the reports, which information she passed on to her husband.

134 I conclude that the reports were not provided to the defendant or his wife at any time prior to settlement.

Representations on 30 December 2002

135 In the second further amended statement of claim the following representations are pleaded:

“4 The Defendant represented to the Plaintiff that a building report obtained previously showed that the roof was ‘weatherproof’ and ‘waterproof’, and was in proper, safe order.

……

Particulars of Negligence

……

(k) Saying to the Plaintiff that a building inspection report had been obtained which reported that the veranda roof was structurally safe when in fact the report specifically stated that ‘no inspection was carried out from on the roof’;

136 The plaintiff gave no evidence at all of the representation pleaded in par 4 of the second further amended statement of claim. It is not possible to find that any such representation was made.

137 The representations pleaded in pars 8(k) and 8(l) of the second further amended statement of claim are, in substance, to the effect that the front verandah roof was structurally sound and safe for the plaintiff to stand upon for the purpose of the painting work that the plaintiff was contracted to do.

138 It is to be observed that par 8(l) does not in fact accurately reflect the contents of the building report. In fact, a reading of the report does not suggest that it made any comment about the timber fascia boards to which the verandah roof was attached. That fascia board was not capable of being inspected as Mr Nicholson said.

139 It would be surprising if a representation was made which took as its starting point an incorrect version of the contents of the building report.

140 The plaintiff gave evidence of the conversation which he said occurred on 30 December 2002 at the Kings Langley house with the defendant in which the defendant said words to this effect:

Q. When you say we might have to plank it, did Mr Ollerenshaw say anything?
A. Yeah. He says “No need for that, it's gall [sic] and steel up there”. He said “I was up there a few days ago it's as solid as’. He said “I was cleaning the leaves off it, no problem with that roof, it's as good as gold”.

……

Q. So he said something about "It's as good as gold"?
A. Yeah. He said he'd been up there cleaning it, it's as solid as, good as gold, no problem with that roof.

……

Q. I just want to put to you he did not say to you at any time that he had been up on the roof?
A. He did tell me he had been on the roof and it was solid as. Galvanised and steel.

……

141 In contrast to this evidence, when giving other evidence in cross examination, I had the clear impression that the plaintiff had made a series of assumptions as to the structural integrity of the verandah roof rather than having had the defendant make specific representations to him about that topic. The evidence on this issue is to be found in the following questions and answers:

Q. Did you make any inspection yourself on 9 January before climbing on to that roof as to whether it was safe to stand on?
A. On the day which I spoke to Mr Ollerenshaw on the 30th I was looking at the interior of the roof for the timbers along the edge that the skillion was attached to. I looked around. They'd been freshly painted. They looked in good order. The timbers did. There didn't seem to be any damage anywhere and by that I took it that when Mr Ollerenshaw said he'd been on the roof, the roof was solid as could be. (T65)

……

Q. Did you carry out this inspection after you say you had a conversation with Mr Ollerenshaw about him being up on the roof before?
A. I was looking at it when we spoke about it whether I was going to plank it or not.

Q. So you were looking at it?
A. Yes.

Q. There was nothing that you saw which would have suggested to you that it was necessary to plank it?
A. Not at that particular time, no.

Q. Had Mr Ollerenshaw stated to you before you made the observation that is that there was nothing that suggested to you that there was a need to plank it and he made the statement that he had been up on the roof, words to that effect, before your observations or did he make that statement after your observations?
A. He made that statement after the observations.

Q. So
A. I was looking at it and considering to plank it or not. It was a thought. After he told me that he had been on the roof and he had cleaned it off and that he had had a building inspection on it and that the house was a hundred percent, he just wanted a paint job to clean it up. I took it he was a man of his word. (T68)

……

Q. You didn't ask him whether he had actually been on the roof doing that, did you?
A. No, he told me.

Q. Was that an assumption you had made that he had been on the roof when he cleaned the leaves?
A. He told me he had been on the roof cleaning the leaves off of it, “the roof was solid as”.

Q. Did you understand that when he said "the roof was solid as"
A. Yes.

Q. That it had not fallen down?
A. I assumed that he had been walking around on it and he found no problems because he had not fallen down and he had not fallen off it. (T71)

……

Q. That is what you did on that occasion?
A. No. Mr Ollerenshaw told me he had been on the roof. He also told me that he had had a building inspection on the whole place and everything was solid as, which meant that the roof was good, the whole structure was good, there was no problems to worry about .

I took it to be involved

142 The defendant denied that any such conversation had taken place. He denied knowing what the roof was comprised of. He denied that he had ever climbed on to the verandah roof and he denied that he had cleaned the verandah roof of leaves or other debris from trees at any time prior to 9 January 2003.

143 I do not accept the plaintiff’s evidence that representations of the kind that he alleges were made by the defendant. There are number of reasons for this:

(a) A very specific representation was pleaded in par 4 of the second further amended statement of claim, no doubt based on instructions from the plaintiff. No evidence was led to substantiate such a representation. I infer that the plaintiff was unable to substantiate it in evidence because the representation in the terms pleaded did not ever occur;

(b) The various accounts of the conversation which I have set out above are not, when considered carefully, consistent one with the other. The plaintiff appears to confuse specific conversations with his own thoughts and with assumptions that he made at the time.

144 I think that the most likely course of events is that since, at some time before 30 December 2002, the defendant had been informed that the pre-purchase reports had not shown any matters of concern, he informed the plaintiff that he had received such reports and that they had not disclosed any matters of concern.

145 From this, the plaintiff has assumed, as he said in cross examination, that there was no obvious defect or structural concern with the front verandah roof. That was entirely consistent with what he in fact observed himself during his inspection on 30 December 2002. His own observations, combined with information to the effect that the defendant had received the pre-purchase reports which had not disclosed any matters of concern, formed the basis for the assumption that he made that the roof would be safe to walk upon when he returned to undertake his painting contract.

146 In light of this, if such a representation was made by the defendant, it would be neither inaccurate nor negligent. It fairly represented what the defendant knew. It also fairly represented the actual contents of the pre-purchase reports.

147 It follows that I am not satisfied that the representations pleaded in pars 8(k) and 8(l) of the second further amended statement of claim were ever made in the terms pleaded. I am not satisfied that the conversations of which the plaintiff gave evidence as having taken place on 30 December 2002, in the terms referrable to the structural integrity of the front verandah roof and the house generally occurred in the way he asserted.

Was the account given by Mrs Hobby of what occurred at the accident scene on 9 January 2003 accurate?

148 The analysis of this issue must start with a recounting of the facts at the scene of the accident, in order to give the necessary context to the discussion which follows.

149 When the plaintiff fell, he landed on the concrete floor of the front verandah near to the front door of the Kings Langley house. He was able to look into the house through the front door. The defendant immediately ran to where the plaintiff was to assist him.

150 The flat verandah roof had fallen, as shown in Ex E, so as to be nearly vertical and adjacent to the balustrades of the front verandah. It seems clear that the plaintiff was lying between the nearly upright (but collapsed) roof and the front door. In that position, he could not be seen from the street or the front of the property.

151 The defendant gave evidence that he went to the aid of the plaintiff and asked how he was. The plaintiff said that he needed an ambulance. An ambulance was called.

278 The plaintiff gave evidence that he was carrying out two to three jobs per week when he was in full work.

279 The plaintiff had been self-employed for very many years. He was going back to work in January 2003 working for himself. In my opinion the evidence does not permit any conclusion different from the plaintiff’s past intentions at the time he returned to work. The plaintiff was always going to be a self-employed roof painter and restorer. He may have employed another worker from time to time, most probably a member of his family. He was always going to remain a self employed tradesman.

280 An issues arises as to the value of his earning capacity at the time of his accident.

281 A letter dated 11 November 2008, which is part of Ex Y, from the Australian Taxation Office to plaintiff’s solicitors, contained information to the effect that the plaintiff had not lodged tax returns for the years 1996 through to and including 1999 and 2001 through to and including 2008. However, the plaintiff’s notice of assessment and income tax return for the year ended 30 June 2000 was available.

282 It is to be remembered that this is the year in which the plaintiff said he was working fulltime without any interruption by reason of injury, illness or any other cause. In the financial year ended 30 June 2000, the plaintiff’s net income, that is after deduction of business expenses and income tax and Medicare levy was $383 per week.

283 The plaintiff was returning to work about two and a half years after this sum. It is reasonable to suppose that in that time had he been able to work the plaintiff’s income would have increased by an amount which would be approximately equal to the change in the Consumer Price Index. In that two year period the Consumer Price Index for Sydney changed by about ten per cent.

284 It seems to me appropriate to fix the value of the plaintiff’s earning capacity as at the date of his injury, 9 January 2003, at $420 per week net, upon the assumption that he was working fulltime and had a full earning capacity.

285 However, it would be an over compensation of the plaintiff to regard his earning capacity at that time as being in the full amount. That is because, as I have said earlier in this judgment, he had not fully recovered his entire earning capacity. And as well as the plaintiff said in evidence, he was returning to work and there would naturally be a lag time before his work built back up to a full capacity.

286 I think that the plaintiff would probably have got back to his full earning capacity but it would have taken him about 18 months or so. I base this on the fact that although he was continuing to obtain treatment from the Illawarra Brain Injury Service and his general practitioner, his condition had clearly improved enough for him subjectively to feel that he was able to return to work and for him to take steps to effect that return to work.

287 Accordingly, I think that in the first six months or so of his intended return to work whilst the plaintiff had a full earning capacity of $420 per week, it is likely that he would only have exercised one half of that capacity. For the period 10 January 2003 to 30 June 2003 (24 weeks) I would allow one half of the ordinary accumulation of wage loss.

288 For the 12 months from 1 July 2003 to 30 June 2004, assuming the plaintiff was not injured, I think he would have been working to about three quarters of his capacity having regard to his pre-existing conditions and the re-establishment of his business. I will allow three quarters of his economic loss for that period as being related to the accident.

289 I propose to set out in tabular form below my allowances for economic loss from the date of the accident to the date of this judgment. It will be observed that in each year I have made an allowance for an increase in the earning capacity which seems to me in all the circumstances to be reasonable and to approximate the increase in the Consumer Price Index for Sydney. There is necessarily some rounding of these figures. I would allow as a reasonable loss of earning capacity for this plaintiff the sum set out in the table below.

Dates of Period	Full Earning Capacity	No of Wks	Total
10/01/03 – 30/06/03	$ 420 pw allow 1/2	24 wks	$ 5,040
01/07/03 – 30/06/04	$ 435 pw allow 3/4	52 wks	$ 16,964
01/07/04 – 30/06/05	$ 450 pw	52 wks	$ 23,400
01/07/05 – 30/06/06	$ 470 pw	52 wks	$ 24,440
01/07/06 – 30/06/07	$ 500 pw	52 wks	$ 26,000
01/07/07 – 30/06/08	$ 525 pw	52 wks	$ 27,300
01/07/08 – 30/06/09	$ 550 pw	52 wks	$ 28,600
01/07/09 – 30/06/10	$ 580 pw	52 wks	$ 30,160
$ 181,904

290 The only other evidence which was available as to the comparable earnings which may be available of a person engaged in a similar occupation to that of the plaintiff is to be found in Ex G which is the notice of assessment and income tax returns for the years ended 30 June 2008 and 30 June 2009 of Mr Samuel Kefford, the plaintiff’s brother-in-law. He gave evidence that he had been self employed as a roof painter for many years up until the year ended 2009 at which time his work arrangements changed when he branched into doing work on driveways as well as on roofs. Although he identified his tax returns, Mr Kefford gave no evidence by which I might be able to compare the extent of the plaintiff’s earning capacity prior to the accident with the extent of Mr Kefford’s earning capacity after the accident. Other than they clearly being in similar businesses and clearly working for themselves, I have no factual basis for drawing a conclusion that Mr Kefford’s earnings would be a comparable value from which I could draw an equivalent sum for the plaintiff.

291 As it turns out, the amount of money which I have attributed to the plaintiff’s earning capacity is slightly less than, but not significantly different from, the amount declared in Mr Kefford’s income tax returns.

Interest

292 The plaintiff claims interest on his damages for his past economic loss. Schedule 5 of the Uniform Civil Procedure Rules 2005 (“UCPR”) provides the following interest rates for these periods:

293 Applying these rates to the calculation of past economic loss, I would allow a sum of $63,542 by way of interest. Given that the loss has accumulated over about seven and a half years, I have generally averaged the interest rates over that period.

Future Economic Loss

294 An award of future economic loss must have regard to the provisions of s 13 of the CLA.

295 They are to the following effect:

“13 Future economic loss - claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

296 In order to make an award of damages for future economic loss, it is necessary for the plaintiff to satisfy me of his most likely future circumstances but for the injury.

297 It will be apparent from my earlier findings, and in particular the plaintiff’s long history as a self employed tradesman engaged in roof painting, that I am satisfied that his most likely future circumstances, had the injury not occurred, would have been to continue working as a self employed roof painter. No other option was suggested in submissions by his counsel. On the evidence, no other option was open.

298 The plaintiff gave evidence, which I accept, that he would have continued to work had he not been injured, until he was physically unable to. He clearly enjoyed his work and I think on the basis of all of the evidence, he would have continued to work until he age of 67 which is mid-way between 65 and 70.

299 As I advert to above, in my view the sum of $580 net per week would represent a reasonable sum for his earning capacity.

300 However, in the future, dealing with the period of about 15 years from now, I need to have regard to the percentage possibility as to the likelihood of these future events occurring had the injury not happened.

301 In my opinion, the percentage possibility of these events occurring would have been in the order of 75 per cent.

302 Conventionally when addressing future economic loss, prior to the introduction of the CLA, courts made allowances for 15 per cent for adverse contingencies and vicissitudes of life. Since the introduction of the CLA, the appropriate place to make an allowance against future economic loss for such adverse contingencies and vicissitudes is in determining the percentage under s 13(2) of the CLA.

303 In this case, however, I think an allowance higher than the usual conventional figure is appropriate. I take into account that as the plaintiff aged his diabetic condition may well have had an effect upon his earning capacity. It is well known, and the medical evidence in this case suggests that patients who have diabetes of long standing develop health complications. It is hard to ignore the fact that the plaintiff was a regular visitor to his general practitioner for treatment to deal with his diabetic complications. These complications were not well managed by the plaintiff himself.

304 As well, the plaintiff was engaged in a manual task in the outdoors. There would always be a risk of injury, either through the ordinary undertaking of the manual work or because of the fact that the plaintiff worked at heights above the ground on roofs. For those reasons, there should be an increased allowance, somewhat above the usual adverse contingencies and vicissitudes of life. It is appropriate to make an allowance by way of a reduction of 25 per cent with respect to the plaintiff’s economic future earning loss, or alternatively, the loss of his future earning capacity.

305 Hence, I regard the likelihood of the plaintiff having a full working career, had he not been injured, as 75%.

306 An amount of $580 per week for a period of 15 years on the 5% tables would total $366.734. This needs to be adjusted by the possibility factor of 75%. Ultimately the award of an appropriate amount for future economic loss is $275,050.

Past Out of Pocket Expenses

307 These are agreed by the parties in the sum of $19,907.95.

Future Out of Pocket Expenses

308 These claims, not all of which are admitted, fall into a number of different categories. The first category is claims for the cost of treatment and medication referrable to the plaintiff’s erectile dysfunction. The evidence shows that the accident was a cause of this condition. However, according to Dr H M Lau, erectile dysfunction is also a well known complication of the plaintiff’s long term diabetes. Dr Lau expressed the opinion that the injury may have brought forward the onset of erectile dysfunction: “… which is likely to develop in someone who has diabetes.”

309 The plaintiff’s claim is for treatment by way of Trimix injections at $130 per week for the balance of his life expectancy. I am not prepared to uphold this claim in its entirety. I would be prepared, taking a somewhat broad brush approach, to find that the accident brought forward the occurrence of this condition by about ten years.

310 I would therefore allow three years for the future of Trimix injections at $130 per week. The appropriate sum of the 5 per cent discount tables (multiplier 145.6) is $18,928.

311 I should note that although the evidence makes mention of the possibility of a penile prosthesis, as one potential treatment option, ultimately the plaintiff did not make any claim for the costs of such surgery.

312 The second category into which a claim for future expenses falls is a claim for future surgery. The plaintiff claims the cost of surgery for a hip replacement at some time in the future and also for surgery for an epigastric hernia repair. The defendant, in his final submissions, opposes any specific allowance for these amounts.

313 Dr Fox, the orthopaedic surgeon who treated the plaintiff, in his report of 15 April 2008, says that there is “… possibility a longer term need for hip surgery … were he to develop significant osteoarthritis of that hip.” As at the time of his last examination, although there was evidence of early osteoarthritis formation in his hip, on serial films there had been no progression of the osteoarthritis.

314 In light of this non-progression and the most tentative way in which Dr Fox’s opinion is expressed, I am not satisfied that this longer term possibility is of sufficient probability to warrant any allowance for hip replacement surgery.

315 The evidence about the plaintiff’s need for an epigastric hernia repair is to be found only in the report of Dr Ellis who was not a treating doctor but one qualified for the purpose of the litigation. He is an expert surgeon.

316 The first mention of the development of an epigastric hernia is in Dr Ellis’ report of 3 June 2008. There he says that chronic abdominal straining associated with bladder and bowel dysfunction resulted in the development of a hernia. At that time, he made no mention of the need for surgery. In his later report of 28 October 2009, he expressed the view that “the epigastric hernia is large and will eventually require repair.” The word “eventually” was not further explored. The plaintiff gave no specific evidence of any pain or discomfort or other symptoms directly associated with the hernia. I accept that the hernia was caused by the plaintiff’s injuries and disabilities consequent upon his accident.

317 The appropriate allowance for the cost of a hernia repair is $12,000. On the evidence, the operation will not be necessary for some years. The appropriate deferral period is five years, 5 per cent multiplier for which is 0.784.

318 I allow $9,408, being the product of the application of the deferral factor to $12,000.

319 The plaintiff claims treatment expenses for:

(a) Hydrotherapy/physiotherapy at $37.50 per week for the balance of his life. There is no evidence to support this claim. I reject it.

(b) Psychiatric assessment and treatment of $17.30 per week for the balance of his life. The only evidence in support of such a claim is that of Dr Julian Parmegiani who suggests that 12 to 18 sessions at between $160 and $300 per session would be appropriate. I allow 15 sessions at $230 per session. The total for this item is $3,450.

(c) Visits to his general practitioner, Dr Hay, every two months. This seems reasonable, particularly in the light of the plaintiff’s need for prescription of pain medication. I allow the amount claimed at $6,717.25.

320 The defendant disputes the plaintiff’s claim to be entitled to medication by way of Mycardis, Pariet, Mylanta and Temazepam. The evidence supporting the claims for the plaintiff to these medications is threadbare. Mycardis is a drug prescribed ordinarily for high blood pressure. There is no medical evidence to suggest that this condition is connected with the plaintiff’s accident. I reject the claim for this medication. Pariet is a medication ordinarily prescribed for stomach ulcers. The plaintiff in his evidence associated the prescription of this medication with his throat condition. There is no evidence that this condition is associated with his accident. I reject the claim. As to the balance of the two medications, namely Mylanta, a medication commonly use for indigestion, and Temazepam, a mild form of sleeping tablet, there is no evidence that they are in any way associated with this accident. I reject the claim for them.

321 Ms Muller recommended a series of pieces of equipment, all of which seem to be appropriate. I cannot find any basis by way of a need in the plaintiff for an electric bed, nor for an Invacare Leo scooter. I would not be prepared to allow these two items.

322 Ultimately, the plaintiff, perhaps recognising the inevitability of my rejection of these two items as unreasonable, claimed a total of $2,243 for a variety of minor expenses described by Ms Muller, which would assist him with his disability. They are listed in the schedule provided by the plaintiff. They are reasonable. I will allow them.

323 The total of these various items is as follows:

Item	Amount
Trimex injections	18,928.00
Hernia repair	9,408.00
Psychiatric treatment	3,450.00
Visits to general practitioner	6,717.25
Various medications	32,302.70
Small items of equipment	2,243.00
TOTAL	$ 73,048.95

Domestic Assistance and Care – Past and Future

324 The plaintiff claims damages by way of a sum of money to compensate him for the gratuitous domestic assistance and care that has been provided to him by his wife and family members since the accident.

325 In order for the court to make any award by way damages for gratuitous attendant care services, it is necessary that careful attention be paid to the provisions of s 15 of the CLA.

326 As I noted above, there are aspects of the domestic tasks that the plaintiff is unable to carry out and for which assistance must be provided for him. As well, there are certain physical tasks for the plaintiff in the course of his ordinary activities of daily living for which he requires assistance. Getting in and out of the shower is something which requires assistance, although I suspect that with the provision of railings and the like this task will be easier for the plaintiff to undertake for himself. As well, on occasions when the plaintiff soils himself due to the inability to control his bowels his wife provides the necessary assistance in remaking the bed, cleaning the linen and his clothes and the like.

327 These are all indicative of a need which the plaintiff has which need has been created by the accident.

328 Section 15 of the CLA provides:

329 In addition to these requirements, unless these services reach a threshold of at least six hours per week continuing for a period of at least six consecutive months, no award is possible.

330 In the early stages after his accident, when the plaintiff’s mobility was significantly restricted, the evidence suggests that he required assistance, effectively full time from his family members.

331 The services which are now provided by the plaintiff’s wife, and from time to time by his daughter, of the kind described in Ms Muller’s report and to which I have referred, would fall within the definition of gratuitous attendant services provided for in s 15(2) of the CLA. As well, I am satisfied that the services have been and are to be provided for at least six hours per week and for a period of at least six consecutive months.

332 I need, however, to be satisfied that the need for services has arisen solely because of the injuries to which the damages relate and that the services would not have been or be provided to the plaintiff but for the injury.

333 I have carefully considered the descriptions given in, and the conclusions reached by Ms Muller in her report. As I have indicated earlier, she has made an attempt to quantify the total hours engaged in all of the services provided to the plaintiff.

334 She has not engaged in the exercise required of a court by s 15 of the CLA.

335 Having regard to the terms of s 15, I conclude that the following allowance ought to be made for past domestic care:

(a) 10 January 2003 – 9 January 2004, 8 hrs per day totalling 56 hrs per week. By reason of the provisions of s 15(4)(a) of the CLA, the sum awarded for this period must not exceed the amount per week comprising the ABS figure for the average weekly total earnings for all employees in New South Wales.

(b) For the next period of nearly six months, that is up to 30 June 2004, I would allow 30 hrs per week.

(c) Since that time, I think that the plaintiff’s need for domestic assistance has become relatively stable. From 1 July 2004 to date, and for the future, in my opinion an allowance of 16 hrs per week being two hours per day for the plaintiff and an additional two hours per week for periodical tasks which the plaintiff may have from time to time have been required to engage in. I set out below in tabular form having regard to the provisions of s 15(4) of the CLA the dollar figures representing an allowance for these heads of damage.

Dates of Period	Hours p/wk	Cost p/hr/wk	No of wks	Total
10/01/03 – 09/01/04	56 (Max allowable 40)	$20.11/$804.40	52 wks	41,828.80
10/01/04 – 30/06/04	30	$19.83/$594.90	25 wks	14,872.50
01/07/04 – 30/06/05	16	$21.47/$343.52	52 wks	17,863.04
01/07/05 – 30/06/06	16	$21.70/$347.20	52 wks	18,054.40
01/07/06 – 30/06/07	16	$22.84/$365.44	52 wks	19,002.88
01/07/07 – 30/06/08	16	$22.83/$365.28	52 wks	18,994.56
01/07/08 – 30/06/09	16	$22.90/$366.40	52 wks	19,052.80
01/07/09 – 19/07/10	16	$22.90/$366.40	55 wks	20,152.00
$ 169,820.98

336 As well, the plaintiff claims an allowance for domestic assistance for the future. He has a further 30 years of life expectancy.

337 His weekly need for domestic assistance presently is about $365. The 5% multiplier for 30 years is 1822. This would total $300,000. However, given the plaintiff’s pre-existing diabetic condition, and the likelihood that as he aged, he would have required some of these services in any event, it is appropriate to discount this figure by 25% including an allowance for the adverse vicissitudes of life.

338 I think a reasonable amount to allow for this would be $225,000.

339 The total of all of these awards of damages is as follows:

Head of Damage	Amount
Non Economic Loss	284,000.00
Past Economic Loss	181,904.00
Interest on Past Economic Loss	63,542.00
Future Economic Loss	275,050.00
Past Out of Pocket Expenses	19,907.95
Future Out of Pocket Expenses	73,048.95
Past Domestic Assistance	169,820.98
Future Domestic Assistance	225,000.00
TOTAL	$ 1,292,273.88

340 Had I found a verdict in favour of the plaintiff, the sum for damages which I would have awarded is $1,292,273.88.

Conclusion

341 The orders of the Court are:

**********

Citations

Gaskin v Ollerenshaw [2010] NSWSC 791

Most Recent Citation

Cases Citing This Decision

3

Gaskin v Ollerenshaw [2012] NSWCA 33

Leslie Gaskin v Matthew Ollerenshaw [2010] NSWSC 874

Vanderwerf v Tesselaar [2011] VCC 966

Cases Cited

12

Statutory Material Cited

3

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

Baker v Gilbert [2003] NSWCA 113

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CITATION:	Gaskin v Ollerenshaw [2010] NSWSC 791
HEARING DATE(S):	16-18, 21 June and 16 July 2010
JUDGMENT DATE :	16 July 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Garling J
DECISION:	Judgment for the defendant. Plaintiff to pay the defendant’s costs.
CATCHWORDS:	NEGLIGENCE – Duty of care – Occupiers liability – Duty to independent contractor – Plaintiff was an experienced roof painter – Allegation that occupier breached his duty of care by, inter alia, failing to inspect roof and to warn of danger – Whether occupier put on notice of potential danger – Breach of duty denied – No breach of duty found - CONTRIBUTORY NEGLIGENCE – Allegation that plaintiff failed to take proper care of own safety – Contributory negligence not found - DAMAGES – Assessment of damages for personal injury –Past and future economic loss – Gratuitous domestic assistance.
LEGISLATION CITED:	Civil Liability Act 2002 ss 5R, 13, 15 Conveyancing Act 1919 s 66R Uniform Civil Procedure Rules 2005 Schedule 5
CATEGORY:	Principal judgment
CASES CITED:	Aslanidis v Atsidakos, NSWCA, 13 February 1989 Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 Baker v Gilbert [2003] NSWCA 113 Balesfire Pty Limited t/as The Gutter Shop v Jamie Adams & Ors; Jamie Adams v Balesfire Pty Limited t/as The Gutter Shop & Ors [2006] NSWCA 112 Drotem Pty Limited v Manning [2000] NSWCA 320 Hackshaw v Shaw (1984) 155 CLR 614 Ordukaya v Hicks [2000] NSWCA 180 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Perkovic v Owners Strata Plan 8806 [1999] NSWCA 153 Short v Barrett, NSWCA, 5 October 1990, unreported Stannus v Graham (1994) Aust Torts Reporter 81–293 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Thompson v Woolworths (Qld) Pty Limited (2005) 221 CLR 234 Uniting Church in Australia Property Trust v Takacs [2008] NSWCA 141
PARTIES:	Leslie Gaskin (P) Matthew Ollerenshaw (D)
FILE NUMBER(S):	SC 2006/266967
COUNSEL:	M Maxwell and M Gilbert (P) R A Cavanagh (D)
SOLICITORS:	Brydens Law Office (P) Henry Davis York (D)