Glancy v McPhail - [2002] QSC 221

SUPREME COURT OF QUEENSLAND

CITATION:

Glancy v McPhail [2002] QSC 221

PARTIES:

MARTYN PATRICK GLANCY
(plaintiff)

v

RONALD WILLIAM McPHAIL
(respondent)

FILE NO/S:

S 8446 of 1997

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

9 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

24, 25, 26, 29 July 2002

JUDGE:

Ambrose J

ORDER:

Judgment for the defendant on the plaintiff’s claim

CATCHWORDS:

NEGLIGENCE – personal injuries – causation – weight and credibility of evidence – claim for damages for personal injury – where plaintiff injured after falling from top deck of houseboat – where plaintiff alleges railing on houseboat was unstable and caused him to overbalance – where plaintiff and witnesses inconsistent with expert evidence – whether railing was unstable – whether breach of duty

Evidence Act 1977 (Qld), s 92

Jones v Dunkel (1959) 101 CLR 298, considered

COUNSEL:

T Carmody SC for the plaintiff
R A Perry for the respondent

SOLICITORS:

Forde Lawyers for the plaintiff
McCullough Roberston for the respondent

The plaintiff, who was 23 years of age at the time, injured his cervical spine when on 19 November 1994 he fell from the upper deck of the defendant’s houseboat (“MERCURY”) towards the water and struck his head on the gunwale of the vessel which was about 600 mm or thereabouts above the waterline, and protruded about 150 to 200 mm from the almost vertical cabin side of the vessel which rose a couple of metres above the gunwale. The measurements to which I have referred are approximate only. I refer to Ex. 9 showing the side of the boat from which the plaintiff fell. The boat was 13.1m long and 4.8m wide (Vide Ex. 20). The top deck of the boat was the roof of the cabin below.

The case ultimately advanced by the plaintiff was that the cause of his fall was the unexpected movement of a handrail when he leant upon it near where it was supported by the second of three stanchions located on the starboard side of the upper deck shown in Ex. 9.

The plaintiff gave evidence himself and called two women who were on the boat at material times, Kelli Kennedy and Katrina Walker, to support his case. He also called Keith Kennedy, the father of Kelli Kennedy, to support his case.

The defendant was not on the boat at the time of the plaintiff’s fall. He had hired his houseboat out to Kelli Kennedy and Katrina Walker for the weekend because they wished to celebrate their birthdays on it with friends.

After his injury the plaintiff was taken to hospital where he was treated for spinal injury. He had a fusion of the C5 – 6 cervical vertebrae. He was discharged from hospital on 27 November 1994. He then recuperated at home with his parents for a couple of weeks until he became able substantially to take care of himself. He said that he had significant discomfort and significant restrictions on his ability to look after himself for about 6 months.

In any event within about 3 months of his injury he consulted a solicitor on the Gold Coast at whose suggestion he took a number of photographs of different parts of the houseboat. Seven of these photographs were later given to Mr King whose academic qualifications in psychology and mechanics are contained in his curriculum vitae. Mr King had a discussion with the plaintiff about what led to his injury and produced his first report on 11 November 1996.

Somebody, who remains unidentified, wrote out an undated statement which Keith Kennedy signed. It was apparently received by the plaintiff’s solicitors on 13 July 1995 – about 17 months before Mr King prepared his report which related to the height of the guardrail and its stability.

The writ of summons commencing this action issued on 18 September 1997 – nearly 3 years after the plaintiff’s injury.

In paragraph 7 of the statement of claim delivered 17 February 1998 (about 5 months after the expiration of the limitation period) it is alleged –
“7. While the Plaintiff was leaning over the rail, the rail moved outwards from the boat, causing the Plaintiff to lose his balance, whereupon he fell from the boat.”
It is clear on the material that the defendant sold the houseboat at some stage prior to its inspection on behalf of the defendant by a marine surveyor named Mr Behan on 16 June 2000.

In a defence to the plaintiff’s statement of claim, delivered on 2 March 1998, negligence was denied and it was pleaded that at the time of his injury the plaintiff was in such a state of alcoholic intoxication that he could not take proper care for his own safety.

The defendant was not called to give evidence. No evidence was called to explain why he was not called and the plaintiff relies strongly upon Jones v Dunkel (1959) 101 CLR 298.

It is clear upon the evidence that neither the plaintiff nor Kelli Kennedy nor Katrina Walker ever informed the defendant before the plaintiff’s injury, or indeed after that injury for that matter, prior to the institution of proceedings to recover damages from him, of any deficiency in the guardrail as alleged, which the plaintiff and his two female friends say was unstable and in respect of which Mr Kennedy signed a statement that some unidentified person wrote out for him to the same effect. Mr Kennedy declined to give evidence to that effect when called by the plaintiff to support his case.

I will shortly analyse the evidence called to support the plaintiff’s case on liability. It suffices at the outset to say that I have significant reservations, for reasons which will emerge, as to the reliability of the evidence of the plaintiff and that of his two principal witnesses.

It is convenient to refer to the observations of Menzies J in Jones v Dunkel at p 312 where he observes –

“… (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence;
(ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence;
(iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.”

Before embarking upon a consideration of the evidence I will observe merely that the nature of the evidence of facts of this case bare little resemblance to that of the facts considered in Jones v Dunkel. In this case there are three witnesses (including the plaintiff) who assert that at the time the plaintiff fell, part of the handrail around the upper deck of the houseboat was so unstable that it could be moved outwards for a significant distance by somebody merely pushing it, whilst standing on the upper deck.

On the other hand there is expert evidence from a marine surveyor who examined the vessel about a month before the date of the plaintiff’s fall that there was no such deficiency then apparent to him. There is further evidence from another marine surveyor who examined both the photographs upon which Mr King relied to support the plaintiff’s assertion and more importantly those parts of the vessel photographed by the plaintiff about 3 months after his injury at the suggestion of his solicitor, who said that the condition of the guardrail structure on the vessel when he examined it in June 2000 – albeit nearly 6 years after the plaintiff’s injury in November 1994 - was in the same condition as that depicted in the photographs and was then stable.

In this case the onus is on the plaintiff to show that his evidence and that of Kelli Kennedy and Katrina Walker is sufficiently reliable to establish on the balance of probabilities the facts alleged in paragraph 7 of his statement of claim. Obviously had the defendant been informed by anybody of the plaintiff’s allegation, at any material time prior to the institution of these proceedings one might expect that if he then still owned the vessel he would have examined its handrail himself to determine whether there was any substance in this allegation.

Had the defendant given evidence that he did not know of any instability in the handrail of the sort about which the plaintiff and his two principal witnesses gave evidence or even that to his knowledge while he owned the boat there was never any such instability and that for this reason he had never taken steps to remedy any such instability then obviously that would erect an additional evidentiary hurdle for the plaintiff to overcome.

Essentially however the failure of the defendant to give such evidence is only one consideration in the evaluation of the reliability of the evidence on liability given by the plaintiff and his two principal witnesses. At the end of the day, the reliability of that evidence must be tested against the background of its own inherent plausibility and the expert evidence given by marine surveyors and the things depicted in the photographs taken by the plaintiff 3 months after his injury and against the expert evidence called from Mr King who had never stepped on or even seen the boat or examined it at any stage before making his report or giving evidence.

Mr King’s only familiarity with the matters about which he gave evidence was based upon what the plaintiff told him and the photographs which the plaintiff had taken of various parts of the boat, without reference to Mr King at the suggestion of his solicitor, to support the legal proposition that the rail was too low and was unstable on the starboard side of the upper deck of the boat seventeen months before Mr King prepared his report.

The plaintiff did not attempt seriously to establish that the rail was too low upon trial and so this was not a matter really in issue and although some submissions were made in this regard, in light of the uncontradicted evidence of compliance with statutory requirements and the heights of hand rails on similar houseboats I am unpersuaded that this head of negligence was or ever could have been made out.

The real case mounted for the plaintiff was that the handrail was so unstable that a person could push it 300 mm outwards and pull it 300 mm inwards from the edge of the upper starboard deck of the boat. Mr Behan, a marine surveyor, who inspected the boat – albeit years after the occasion of the plaintiff’s injury - with 7 photographs taken by the plaintiff 3 months after the injury to assist him, also took some photographs himself. At the time of his inspection the condition of relevant parts of the boat, according to him, was as depicted in the photographs which the plaintiff had taken so many years before. He also actually tested the extent to which the rail could be moved outwards by a 20kg pressure and he said that on a number of occasions it did not move at all but that on one occasion it moved a maximum distance of 5 mm.

The only direct evidence then that the rail was unstable at the time of the plaintiff’s injury was that given by him which was supported to an extent by that given by his two female friends who held their birthday party on the houseboat – Kelli Kennedy and Katrina Walker - as to its instability on other proximate occasions. To the extent that Keith Kennedy gave evidence which might be “consistent with” that of his daughter and her friend for reasons which will later appear, I give it no weight.

I will turn now to examine the evidence which they gave on this issue.

According to the plaintiff he was invited to the dual birthday party celebration by Katrina Walker with whom he had been friendly for some time. He boarded the houseboat on the evening of 18 November 1994. Apart from Kelli Kennedy and Katrina Walker there were about eight other guests on the vessel. It was eventually moored in the Broadwater and its occupants then commenced to engage in party activities which included eating food and drinking alcohol.

The plaintiff admitted that he had been drinking from about 6:30pm on 18 November until about 3:30am to 4:00am the following morning. He said that he probably consumed about half a 750ml bottle of bourbon. He said that he did not have anything to eat on 19 November 1994 before he swam to a sand bank near the boat shortly after dawn where he ran for a distance of 500 metres and then swam back to the boat when he had some chips and went to sleep; he said that he did not wake until the afternoon, very shortly before he injured himself when he fell overboard.

This account is quite inconsistent with those given by Kelli Kennedy and Katrina Walker. Kelli Kennedy gave evidence that it was about lunchtime on 19 November that she and the plaintiff and others went for a swim. She said that she was unaware of the plaintiff leaving the boat prior to lunchtime, but that she had seen him and other people drinking beer during the morning. She had seen the plaintiff and other males drinking beer over a period of a couple of hours. She said she had also seen him having a couple of beers with Katrina Walker.

Katrina Walker gave evidence that, at dawn the plaintiff had cooked breakfast on the boat. She said that later in the morning the plaintiff went for a swim and that she and the plaintiff and others then ran around a sandbank.

Photographs taken by somebody on the vessel on 19 November 1994 (1 and 2 of Ex. 13) confirm the version of events given by Kelli Kennedy and Katrina Walker and are quite inconsistent with the plaintiff’s version of his involvement in the morning’s events involving guests on the houseboat preceding his injury.

The plaintiff did not lose consciousness as a consequence of his injury. Indeed he argued with others on the boat involved in his rescue after injury in an effort to remain supported in the water when he reached the surface rather than be taken aboard the houseboat, because of the pain he was suffering as a consequence of his spinal injury. The inconsistency between the plaintiff’s recollection of events prior to his injury and that given by his two female friends, supported indeed by photographs taken at the time, is consistent with the plaintiff’s ability to recall activity in which he was involved during that period of time being significantly affected by his intake of alcohol.

When pressed as to the inconsistency between his recollection and that of his two female friends he denied that he had been drinking beer on the morning of his injury and said that he had no recollection of swimming with others prior to lunch. Indeed he said he was unable to given any estimate as to the period of time that he had been drinking prior to his injury.

The evidence from Kelli Kennedy, which is to some extent consistent with that of the plaintiff, was that on 19 November 1994 she went on to the upper deck of the houseboat at about 2:30pm where she found the plaintiff asleep, to some degree in any event, in the sun. She said that she woke him. The plaintiff said he recalls that while in the process of waking up he was standing at the guardrail talking to her although he could not recall what they were talking about. He said that he talked to her for about 5 minutes. He said that he put both hands on the guardrail and stretched backwards while in the process of “waking up”. He said that he had been sleeping on the deck in the sun and was confused; he said that he was making sure that he had properly woken up before he attempted to climb down the stairs from the upper deck to the lower deck because he thought that it might be dangerous for him to do so in his condition while talking to Kelli at the guardrail. He said that he had made up his mind that he would not attempt to go down the steps to the lower deck to have something to eat until he was satisfied that he was sufficiently stable and composed to do so safely.

He said that it was while in that condition that he leant backwards holding on to the guardrail with both hands and stretched and then leant forward while still holding on to the rail. He said that when he stretched himself by leaning backwards while holding onto the rail, it did not move; he then heard somebody on the lower deck speaking. He said that he then leant forward onto the guardrail and it unexpectedly moved forward – presumably under the pressure of his weight - and he lost his balance. He said that he remembered the rail “digging into my stomach”. He said he attempted to grab hold of the rail but could not prevent his weight from going over the rail and he fell straight down. He said he felt a blow to his head just before he ended up in the water.

He said that before he fell over the rail he was facing and holding onto it with both hands. He said that he could not remember how far he leant forward but as he went to lean over the rail, to look towards and/or speak to people on the lower deck, it unexpectedly moved out in front of him causing him to bounce on his stomach and lose his grip. He explained that it was the outward movement of the rail that caused him to lose his balance. He said that he could remember holding onto the rail with his left hand after his stomach had bounced on the rail as it moved forward. He said the weight of his body as the rail moved under its forward motion caused him to lose his grip. He said that at that time both his feet were very close to the second stanchion supporting the rail on the upper deck which is shown in photograph number 3 on Mr King’s report which is Ex 1.

He said while holding onto the rail he was standing very close to and indeed up against it. He said that in fact his toes would have been level with the rail when he was stretching backwards; presumably they remained in that position when he then started to move forwards. At one stage he said that he actually looked over the rail to see what people on the lower deck were doing and/or to talk to them. He said that his intention was to allow the people on the lower deck to see him and that although he intended to talk to them he could not say whether he actually commenced to talk to them. He agreed that in order to see people on any part of the lower deck – whether inside or outside the cabin structure - he would have to lean significantly over the rail. Apparently he wanted to talk to the people on the lower deck about what they were then cooking. He observed once or twice that the force he was applying to the rail as he straightened himself was more “pressing down than pushing out”.

According to Kelli Kennedy who was standing beside the plaintiff shortly before and at the time of his fall she was then talking to him about boats in the marina. She said that the plaintiff had both hands on the rail and “he just sort of leant back and went forward and fell straight over the side of the boat”. When the plaintiff fell off the top deck over the rail Kelli Kennedy said that she was standing right beside it and facing away from the boat.

Strangely, Kelli Kennedy, who was standing beside the rail and beside the plaintiff when he fell over board gave no evidence that she then observed the rail to move at all – either when the plaintiff was stretching backwards or when he leant over the rail before he fell over it.

Kelli Kennedy’s evidence concerning the instability of the rail over which the plaintiff fell is limited to what she said she observed when she went onto the boat with her father and Katrina Walker in the early afternoon of 18 November.

She did say that when she inspected the boat with Katrina Walker – in the presence of her father - she noticed that the guardrail wobbled at the place where the plaintiff fell over it and she discovered that by putting her hands on it and applying force she could move it in each direction about 300 mm. All told then from when the rail was out as far as it could be pushed until it was in as far as it could be pulled it covered a distance of about 600 mm. She said she did this in the presence of her father.

She said that in spite of this knowledge she did not at any time say anything to the plaintiff about the instability of the rail – even when she was standing beside him as he was holding onto it stretching. She did not say that she saw the rail move inwards over any distance – much less 300 mm - while the plaintiff was pulling it toward the centre of the boat and indeed the plaintiff himself said that it did not move at all when he pulled it towards the centre of the boat as he was stretching in the course of trying to wake himself up. She could not explain why she did not tell the plaintiff that it was dangerous for him to be handling this allegedly unstable guardrail in that fashion in light of what she said she had observed the previous day. She said that she felt responsible to some extent to other people who were on the boat whom she had told about the instability of the guardrail but for some reason she omitted to tell the plaintiff about it while she was standing with him while he was stretching while holding onto it. One would think the absence of any backward movement of the rail as the plaintiff was pulling would have surprised her in light of what she claims to have observed on the previous day when she and Katrina Walker had pulled it inwards for 300 mm and pushed it outwards for 300 mm with ease.

According to Katrina Walker she also noticed the instability of the rail when she accompanied Kelli Kennedy and her father to inspect it earlier on the afternoon of 18 November. In fact she said she noticed when “we grabbed it” that the rail could “wobble” around about 300 mm each way. She said she could move it through that 600 mm range just holding onto it with one hand. She said she did not notice any movement in the stanchions fixing the rail to the upper deck of the vessel when the rail was moving in and out over that range of about 600 mm. I find this account inherently improbable; while the rail remained attached to the stanchions any lateral movement in it must have resulted in an equivalent movement at least at the top of the stanchion.

A significant inconsistency between the evidence of the plaintiff and that of his two female companions is that he insisted that when he stretched backwards pulling the rail it did not move backwards. On the other hand each of his female companions said that when they looked at and tested the rail before the time of the plaintiff’s fall it could be moved very easily – even with one hand – through a range of about 600 mm in both an outward and inward direction from the edge of the upper deck.

There is a variation in accounts given by the plaintiff of precisely what force he applied to the rail prior to falling over it. At one stage he said that he had pulled the rail upwards rather than backwards when stretching and had then pushed down on it rather than outwards as he leant over it in an attempt to talk to people below the upper deck.

If one accepts that he was pushing down on the rail at the time he was attempting to lean over it and speak to people on the lower deck about the meal that was being prepared, it is not unlikely that he simply over-balanced – particularly if his feet were not fully bearing his weight upon the deck upon which he was standing. Photograph no. 5 attached to Mr King’s report shows the plaintiff standing beside the guardrail in approximately the position he and Kelli Kennedy say he was standing just before he fell.

It is abundantly clear having regard to the relative heights of the guard rail and of the plaintiff’s hips that if prior to his fall he was pressing down on the guardrail with a view to extending himself out from it as far as possible to enable him to see and to talk to people on the lower deck – whether within the cabin or outside it - he could very easily have over-balanced; one would think the bulk of his body weight would be extended over the rail which would act as a fulcrum as he endeavoured to see what was happening on and to talk to people on the lower deck either under the canopy over the rear deck or under the canopy over the front deck or through the windows of the cabin structure immediately above which he was standing. I refer again to Ex. 9.

Photographs no. 1 and 2 in Mr King’s report and the photograph which is Ex 9 taken by Mr Behan demonstrate that if the plaintiff wished to talk to people under the canopy above the open part of the bottom deck to the rear of the houseboat he could perhaps readily have done so by looking towards them and talking to them through the ladder access point on the upper deck shown in photograph 2 in Mr King’s report.

On the other hand if the people the plaintiff wanted to see and speak to about the meal then being cooked were on the lower deck at the front of the vessel covered by the canopy shown in Ex 9 he may have stretched forward in an attempt to get some view of that part of the lower deck which seems to extend a little further out from the cabin structure at the front than it does at the rear.

According to Katrina Walker she and her friend Kelli Kennedy had hired the houseboat from Friday 18 November through to Sunday 20 November 1994. From the hiring agreement which is Ex. 12 the houseboat had to be returned by 9 a.m. on Monday 21 November 1994.

She gave evidence that she and Kelli on 18 November 1994 had actually leant their backs against the handrail in the vicinity of where the plaintiff fell and noticed straight way that it wobbled; they both just grabbed it and observed that it moved about 300 mm each way, inwards and outwards.

She said that she accompanied her friend, the plaintiff, to hospital where she spent the night. She said the following day – Sunday 20 November 1994 – she went back to the houseboat and examined it. She said that “one of the bolt things was half popped out and they were just rusted”. She could not say which particular stanchion seemed to have bolts that had “half popped out”. She looked at photograph number 3 in Mr King’s report and said that the stanchion shown there looked like the one that she noticed had deficiencies in the deck fastening. She said it looked the same in the photograph as when she examined it on the day after the plaintiff’s injury, with the discolouration shown in that photograph. She said that she did not make any effort to satisfy herself as to what had caused any movement in the rail when it was put under pressure. She said that she had observed –

“one piece that I seen that was sort of bent like steel one part of the railing. It was sort of buckled …”

She said that there was no bend in the top rail but part of it “down where it joined”, seemed to her should have been “straighter”. She said that she observed where the rail “went down went across and then sort of down right to the floor”. She said that she noticed this deficiency “right down near the floor” where it joined. It was not one of the stanchions shown in photograph number 3 attached to Mr King’s report. To the contrary it was one that “went down a slant down”. Later on she said that she went into the cockpit area and saw a bit of the rail “that was slanted”; she then said that it was bent where it joined “whatever it was joined onto”. She said she could not remember whether it joined onto the wall or onto the floor. She said that she thought that it was fixed by a bolt but she could not be positive.

She said that she spoke to the defendant by telephone about the accident and informed him that the plaintiff had fallen overboard and was in hospital. Strangely she said that she did not say anything to him about the alleged defective condition of the rail to which her evidence and that or her friend Kelli Kennedy clearly attributed the plaintiff’s fall. According to Miss Walker she had a discussion with the owner about bloodstains to the rear of the houseboat which upon her evidence had come from the plaintiff’s head.

The third witness called by the plaintiff on the issue of liability was Kelli Kennedy’s father, Keith Kennedy. He said that he remembered going to inspect the houseboat with his daughter but he could not remember whether Katrina Walker accompanied them. He said that he walked up onto the top deck. He was asked, “Q. Did you notice anything about the railing system on the deck – top deck? A. I thought the railing was flexible”. Mr Kennedy then went on to explain what he meant by the “flexible railing” that he observed. He explained that some houseboats have a solid wall but that this one had steel posts with wire in them.

Counsel for the plaintiff then handed him an undated handwritten statement in the handwriting of some unidentified person bearing a stamped receipt date of 13 July 1995.

This statement was apparently written by some person who then asked Mr Kennedy to sign it, which he did, and it was then sent to the plaintiff’s solicitor at that time, some time prior to 13 July 1995. The person who wrote out this statement was not identified. Part of this statement which was tended pursuant to s 92 of the Evidence Act reads –

“I did notice that some of the railing on the boat where lose and seemed unstable after I had touched them, and at the time I did say to the girls about it.”

Mr Kennedy said he did not remember who wrote the statement out for him which he signed. He said that the only thing that he could remember about the “railing system on the top deck” was that it “was flexible” – that is that it was not a solid wall. This signed statement was never discovered to the defendant. When this point was raised with Counsel for the plaintiff, he stated, “there was some doubt as to whether the witness would ever be available to give evidence”. I infer that this doubt was based upon Mr Kennedy’s unwillingness to give evidence in accord with the statement he signed (Ex. 9) rather than any perceived difficulty in procuring his attendance by subpoena to give evidence.

When pressed Mr Kennedy would not confirm the truth of the content of the critical part of the statement that he had been persuaded to sign presumably within 6 months or so of the plaintiff’s injury. He said that he was only on the houseboat “for a little while” and that “the handrails weren’t solid like most houseboats I have been on; they were flexible”.

When further examined by Counsel for the plaintiff he was asked (by a rather leading question), “did you grab hold of them and push them in and out” to which he replied, “yes I did touch them”. He did not give evidence that he detected any instability in the rail when he “did touch them”.

In cross examination by Counsel for the defendant Mr Kennedy explained that when he used the term “flexible” in describing the guard rail he intended to convey that the upper deck was surrounded by a rail on stanchions with wire passing through them and that the wire itself was necessarily “flexible”.

According to Kelli Kennedy it was her father who observed on the top deck “be careful of the railing because it is unstable”.

It is interesting to note that although the statement written out for her father’s signature asserts that the railing “seemed unstable” (Ex 4) Mr Kennedy steadfastly declined to give evidence to that effect in court. However his daughter did give evidence that her father at the relevant time had warned her to be careful of the railing “because it was unstable”.

Kelli Kennedy said that she did advise one or two people on the houseboat about the instability of the rail. However she said at one stage that the defendant, the owner of the houseboat, was not on it when she discovered the defective railing. She said that she was there only with her father and Katrina Walker. The evidence of her father however was that he was only on the boat for about 5 minutes. There is further evidence that the defendant was in fact on the boat and had something to drink on it before it was moored for the night in the Broadwater. In any event there is no evidence that Kelli Kennedy said anything to the defendant while he was there about this defective railing about which she says her father had warned her and which she had personally observed. Strangely she later said that it was the defendant who steered the boat at least part of the way from where it had been moored initially to a Spit outside the Nara Resort. She said that when the boat approached the location where it was to be moored for the evening – presumably where that part of the weekend birthday celebrations was to be held – the defendant got off the boat and the occupants then moored it near the Nara Resort for the night.

She said that about 2:00pm on the afternoon of 19 November she woke up the plaintiff; she said she actually watched him fall over the side of the boat and hit his head near the bottom of the boat from where he just rolled into the water. She said that by the time she travelled from the top deck to the bottom deck people had pulled him out of the water. The evidence is silent as to what alerted his rescuers to the plaintiff’s plight.

Under cross examination Kelli Kennedy was asked whether it was apparent to her when she woke the plaintiff that he was still intoxicated. She answered, “I can’t say for sure no”. Then she said that she could not remember and observed that she did not know how much he had to drink that morning. She said she could not remember anything about his appearance or speech. She also said that she could not remember whether she had her hands on the rail as she was standing beside the plaintiff talking to him at the rail. She said that she could remember the plaintiff having his hands on the rail but that “it all happened that fast that he leant back and leant forward like that and just went over”. She did observe however that the plaintiff “appeared to be looking down for a split second but he fell”. She said she had no recollection of the rail moving as the plaintiff fell over it. She said she neither saw it move nor felt it move – even if she was holding onto it herself, about which she was uncertain.

When asked why she did not warn the plaintiff of the instability of the rail of which she was aware she said “well I didn’t think he was going to lean forward on the railing and fall over the top of it”.

Mr King whose most arguably relevant expertise seems to lie in the field of mechanical engineering and traffic planning, had a conference with the plaintiff in 1996 and then apparently examined the photographs that the plaintiff had taken of those parts the boat which in his inexpert opinion he considered most strongly supported his case that the rail over which he fell was unstable.

Mr King admitted that he had no experience in maritime engineering or marine surveying. He had never examined the vessel connected with the plaintiff’s injury and he based his report purely on what the plaintiff told him and what was depicted in the photographs taken by the plaintiff without any relevant expert advice at his solicitor’s suggestion.

He speculated, perhaps understandably in the absence of any inspection of the vessel or of its parts depicted in photographs, that the stanchions supporting the guardrail may have been fixed to the deck by self tapping screws. He even speculated as to the diameter of such self tapping screws.

He looked at photograph no. 3 attached to his report, which was of the stanchion in the vicinity of where the plaintiff and Kelli Kennedy said he fell over the guardrail and where his two female friends said they observed the very significant movement through a range of 600 mm in the guardrail supported by it, and said that on his examination of that photograph there was no gap between the fastening plate and the deck and that the plate appeared “to be tight”. He was able merely to speculate as to the cause of discolouration on the plate at the bottom of the stanchion, he was unable to say what sort of screw fastened the stanchion to the deck of the vessel but observed that with certain sorts of screw coming into contact with stainless steel some sort of corrosion may develop on the plate at the bottom of the stanchion.

He expressed the view that a solid cockpit combing, constructed of fibreglass, had attached to it not merely the rail supported elsewhere by the stanchions, but also wires threaded through “the rail”. From my examination of the photographs there were no wires threaded through any part of the rail. There are four wires threaded through the three stanchions on the starboard side of the upper deck of the houseboat which are depicted in the photographs.

He expressed the view essentially that a photograph showing a missing fastener at one corner of the cockpit combing to the starboard upper deck of the vessel provided a possible explanation for the movement of the rail, one end of which was attached to part of the combing well away from the stanchion closest to it. After dealing with this aspect of the photograph in what to my mind was a rather unconvincing way, Mr King ultimately concluded that a stainless steel cable shown in photograph no. 4 linking the stanchion closest to the combing with that combing had no bearing whatever on the stability of the handrail shown in photograph 1. He expressed the view that even if the rail were fixed correctly to the combing - and he did not know whether it was or was not because he had no photograph of the manner in which it was fixed, the rail was not adequately supported by the combing because the “trailing end” of the combing was not securely fastened to the deck. The underlying assumption of this approach is that the condition of the “trailing end” of the starboard cockpit combing when the photograph was taken was the same as it was 3 months earlier when the plaintiff fell.

I am unpersuaded by the evidence of Mr King that the absence of the screw (or bolt) fastening the combing to the deck “at the trailing end” of it shown in photograph 4 - even if it existed at the time of the plaintiff’s injury - had any effect on the stability of the rail from where the plaintiff fell.

In coming to this conclusion I much prefer the evidence of Mr Behan with many years of marine survey experience who actually inspected the vessel, to that of Mr King who had no experience in this field of endeavour and who did not at any time inspect the vessel either before or after he gave his report.

Mr King referred to photographs taken by the plaintiff three months after his injury of stainless steel plates in photographs numbered 6 and 7 attached to his report. Photograph no. 7 was taken of a fixing of a rail to the lower deck, nowhere in the vicinity of the rail said by the plaintiff to be unstable. There is no evidence as to what part of the vessel photograph no. 6 depicts. A careful examination of all the photographs (including Ex. 9) does not reveal to me whether it was taken on any part of the upper deck or lower deck. I can only observe that photograph in Ex. 9 shows that the exterior of the top part of the combing on the starboard side of the vessel bears painted stripes which certainly do not appear anywhere on the combing shown in photograph no. 6 (if indeed photograph no. 6 shows any combing on the upper deck at all). If photograph no. 6 does depict part of the combing on the upper deck, it must be on the port side and not the starboard side of the deck because if it is a photograph of the combing on the upper deck the red and blue painted stripes must be on the other side of the combing shown in that photograph. If that be the case then it is clear from Ex. 9 that that photograph must be of combing on the port side of the houseboat and not on the starboard side because the photograph was obviously taken from the deck of the boat (be it upper deck or lower deck) inside the combing.

According to Mr King anybody simply leaning against the rail would apply about a 10kg force to it. On the other hand if anybody tried to push their body back from it by holding on to it with their hands it might generate a force in excess of 30kg. As I understand his evidence if one simply stood in front of the rail and pushed oneself backwards it would generate a force of about 10kg.

Although the absence of evidence from anybody as to what part of the houseboat photograph 6 depicted, was drawn to the attention of counsel for the plaintiff no evidence was led to correct this deficiency in the evidence. Under cross examination Mr King agreed that photograph no. 3 showed no sign of any deformation of or movement in that particular stanchion.

He conceded that he had made no attempt to check with the manufacturer of the houseboat whether the stanchions were connected to the upper deck of the vessel by bolts rather than self tapping screws.

Ultimately he conceded that the only area of the boat, which he thought supported the proposition that a self tapping screw had been used, was that depicted in photograph no. 4 - the combing around the cockpit on the upper deck. This concession in my view was based upon an unpersuasive opinion. There were no screws seen in the hole left at the edge of the combing.

According to Mr King the plaintiff had informed him when he discussed his injury with him that he had pulled the guardrail in the vicinity of the stanchion shown in the centre of photograph no. 3 in a backward direction and pushed it in a forward direction rather than that he had applied vertical upward force to the rail by lifting it and then a downward force by pushing it downwards. Mr King agreed in cross examination that the stanchion shown in photograph no. 3 showed no sign at all of any deformation or movement in the stanchion base plate. He observed however that the photograph did not indicate whether the fastenings were tight.

I observe merely that he did not ever suggest that the photograph indicated that the fastenings were not tight. He finally conceded however that the photograph did indicate that the fastenings were tight. He agreed that the stanchion was welded to the guardrail at the top and to the plate at the bottom. Although he did not inspect the vessel himself he expressed this opinion having regard to what was depicted in the photograph that he had been given by the plaintiff.

He agreed that if the stanchions supporting the rail had been anchored correctly he would not expect there to be any “flexion” in the rail. He agreed that if the top rail had moved through a distance of 300 mm, unless the anchorage plate was loose one would get damage either at the junction of the stanchion and the rail or at the junction of the stanchion and the plate designed to fix it to the deck. He said that if the anchorage plate was not loose the rail could not bend or if it did, it would cause damage on the deck to which the plate was fastened or at least cause damage “on the combing level”.

I am uncertain as to what was intended by this observation or qualification. I will assume that in the context of the discussion it was referring to the deck at the bottom of the stanchion near where the plaintiff and his two female witnesses said the rail was able to move outwards under pressure.

Mr King said that the plaintiff told him during discussions with him that the rail could move a distance of between 150 mm and 300 mm. I observe merely that the plaintiff gave no such evidence in court - it was his two female companions who estimated that it would move a distance of 300 mm either way from its proper position when supported by a stanchion perpendicular to the deck.

Ultimately Mr King said that in his expert opinion one would get a maximum “deflection” of the guardrail of about 150 mm but that this would occur only if there was a loose fitting of the stanchion supporting the rail.

Mr King gave a good deal of theoretical evidence about defective fastening of the plate at the bottom of the stanchion resulting in a possible pivoting of the stanchion but he confirmed towards the close of his evidence that he was really only discussing these possibilities with respect to the stanchion he marked no. 1 in photograph no. 1, which was the stanchion near where the plaintiff fell off the boat and which was in the area that Kelli Kennedy and Katrina Walker indicated was the area where the rail could be moved by a gentle pushing or pulling through a range of about 600 mm.

The plaintiff said that he took the photographs examined by Mr King as quickly as he could and was unable to say anything about whether or not the stanchion from near which he fell was securely fixed. He said he did not apply any pressure to the rail near the stanchion but then observed curiously -

“Like, obviously, standing there taking the photos, I would have went like that and I did notice that that plate did wobble to the extent where I don’t think the left screw was serving its purpose with regards – from actually moving like that, it had wore away on its thread where it actually goes down, so it actually looked like it’s secured”.

He then volunteered the information that he did not think at the time that the stanchion had had anything to do with his injury but rather that it was the “combing mount at the front of the boat” which was the cause of his injury; presumably that was why he had taken the photograph of it. That photograph of the combing mount was photograph no. 4.

Again curiously, although the plaintiff swore that he thought that the cause of his fall was a defective fastening of the guardrail to the combing at the front of the boat he did not take any photograph showing how the rail was fixed to that combing. He had concluded that the movement which he asserted was the cause of his injury was attributable to the “combing mounts at the bottom”. He said that he thought that even if the guardrail was fixed properly to the combing at the edge of the cockpit, its looseness because of the absence of the fastening shown in photograph no. 4, would cause the whole of the combing together with the attached guardrail to move.

In cross examination the plaintiff said that he could not remember whether he had told Mr King about his theory as to the cause of the guardrail’s instability. Similarly he said that he could not recall discussing with Mr King anything about the possibility of the stanchion pivoting or moving if one of the fasteners of the stanchion plate to the deck had broken off or had not been working properly. Interestingly the plaintiff volunteered his observation of this “defect” in the stanchion plate fastening to the deck after Mr King, under cross examination, had suggested that if the plate was fixed by only one fastener instead of two it might pivot perhaps permitting a bending of the guardrail.

There is no suggestion from Mr King that he was ever given this information about the stanchion moving or “wobbling” on the day the plaintiff took photographs of it. Indeed the first time the plaintiff seems to have volunteered this piece of information is after hearing Mr King give evidence of such a possible explanation for the movement of the guardrail.

In course of cross examination it was put to the plaintiff that the evidence he had given about feeling a movement in the stanchion on the day he took photographs was simply a recent fabrication engendered by the evidence he heard Mr King give.

In re-examination he said that he had told the first solicitor he consulted about the silicon at the plate at the bottom of the stanchion which Mr King suggested may have “pivoted” if held by only one fastening, after he had taken photographs at his suggestion. No evidence was in fact led from the plaintiff’s first solicitor in an endeavour to rebut the suggestion made in his cross examination of recent fabrication.

The principal witness called by the defendant was Mr Behan who had practiced as a marine surveyor for about 30 years. He had inspected the houseboat and given a report about it. He was familiar with that particular make of houseboat and had inspected a number of them as a marine surveyor. He said that such vessels had their design approved by government regulators and marine boards and the construction of the vessels was supervised by departmental marine surveyors during the course of construction.

He said that in June 2000 he inspected the “Mercury”; at that time he had the copy of Mr King’s report and examined the photographs which the plaintiff had taken 3 months after his injury which were attached to it. He said that the guardrail was a stainless steel handrail which went completely around the outside of the upper deck in a continuous loop; it was fastened into the top of the cockpit combing on both the port and starboard sides and by stainless steel stanchions welded to that handrail and to plates welded to the bottom of the stanchions which were connected to the deck by bolts.

He said the stainless steel stanchions were “hollowed out” at the top; the pipe guardrail was then lowered into them and the two were welded together. He said that generally sealant was placed between the bottom of the base plate of the stanchion and the deck and then the base plate was fastened by bolts passing through the deck which were then securely bolted to a thick fibreglass reinforcing pad fixed underneath the fibreglass decking. The bolts all told would pass through fibreglass having a thickness of about 18 mm which then gave strength and rigidity to the stanchion pads fixed to the deck with bolts. He said normally a spread washer was placed between the fibreglass support pad and nut; sometimes a nylon nut was used to avoid it becoming loose as a result of vibration and movement.

He said that the houseboat “Mercury” had its continuous handrail bolted to the cockpit combing on both the starboard and port side. He said that there was a plate welded to each end of the handrail which was bolted onto the cockpit combing on each side of the upper deck. He said that in the course of construction there was an aperture left in the fibreglass combing. This enabled the persons installing the handrail to put their hand inside the combing and bolt the plate welded to each end of the handrail, at a significant angle to it, to the combing - presumably reinforced the way the attachment sites are reinforced under the deck to support the fixing of the stanchion plates to it. In any event a nut is placed on the bolt fastening each end of the handrail where attached to the starboard and port cockpit combings.

Mr Behan said that his examination of the vessel disclosed no indication that there had ever been any movement of the base of the stanchion on the starboard side of the “Mercury” shown in the photographs near which the plaintiff said he fell over the side of the vessel. He looked at the photograph taken by the plaintiff which Mr King had examined and said that on his examination of it the stanchion plate appeared to be fixed tightly to the deck.

Commenting broadly on the proposition advanced by the plaintiff and his witnesses and supported to whatever extent it was by the evidence of Mr King, Mr Behan said that the rail being a continuous rail from the forward port and starboard cockpit combings and extending down the side and across the stern of the vessel, the only way part of the starboard handrail could move in and out over a distance of 600 mm would be if it was “terribly loose in nearly every department and one would have to think that the welds were broken as well as where the stanchions join to the top rail”. He said that the force of a movement of the sort of which Mss Kennedy and Walker gave evidence would be transmitted right around the perimeter of the deck and that at some point the movement of the rail to such an extent as the plaintiff and his witnesses deposed to would have to cause it to be detached from the fastenings somewhere.

He said the rail would have to be loose and any connection with the fly bridge combing would have to be broken. He said as well there would have to be some form of weld disconnection between the rail and the stanchion so that the rail could move off its stanchion uprights. He said that in his view, for the rail to move the way in which Mss Kennedy and Walker said that it moved, the whole rail would have to be so loose as to be ready for removal from the structure of the vessel.

Mr Behan said that there was nothing in any of the photographs taken by the plaintiff which was consistent with or which even raised the possibility of the rail being able to be physically moved one foot in either direction in the vicinity of the place where the plaintiff fell over it. Mr Behan rejected out of hand the suggestion that the stanchion shown in photograph no. 3 of Mr King’s report could conceivably have moved by lifting the fasteners through the holes in the deck and the packing underneath it to allow the top of the stanchion to move out about one foot from its vertical position and then spring back again into a vertical position so that the fasteners then fell down once more through the deck from which it had been lifted.

I accept completely Mr Behan’s rejection of any such possibility. He said there was nothing in any of the photographs that he examined and nothing in the inspection that he made that would lend any support whatever to such a possibility.

Mr Behan said that when he inspected the vessel he tried to unfasten some of the fasteners holding the stanchion base plates down but found it impossible to move them. He said that with respect to the fastening of the handrails to the combing at the fly bridge of the houseboat he had actually removed the covering from the side of the combing and put his hand in to ensure that the bolt attaching the plate welded onto the foremost part of the handrail to the combing had a nut on it. He said that as far as he could recall he looked under the deck to ensure that the stanchion plates were fixed to the deck by bolts. Presumably he was able to see the nut on the bolt when he looked up at the position where they were fixed to the deck from underneath it. He said that he did not check all of the bolts but he did check the bolts “amidships” which I infer were those in the vicinity either of the stanchion on the starboard side near which the plaintiff fell overboard at the time of his injury or those immediately opposite on the port side.

He said he could not be sure that he examined the fixing of the stanchion plate of the stanchion on the deck near which the plaintiff fell or whether it was possible that he had examined the fixing of the stanchion plate on the port side. In any event he specifically tested the stanchions on the starboard side from the deck and could not detect any signs of movement.

He agreed that he could not tell from his examination whether any repair work had been done to the stanchions on the boat between November 1994 and his inspection in June 2000. He said that he was able to say that no repair work had been done to the fibreglass material because that would have been very apparent because of colour changes which always occur when “a patch” is applied to repair damaged fibreglass of the sort that would have been done by the stanchion pad had it inevitably moved against the fibreglass deck supporting it when the top of it was pushed 300 mm beyond the vertical. He said he specifically looked at the base of the stanchion when he was examining it to see whether there was any indication of repair work done to the fibreglass and found none. There is no evidence whatever that any such repair work had ever been done.

Interestingly Mr Behan said he searched the boat to find the location on it of what was shown in photograph no. 7 given by the plaintiff to Mr King. He said that in spite of the search he made he just could not find anything on the “Mercury” that had the appearance of or was depicted in photograph no. 7.

Looking at photograph no. 3 which was the stanchion from near which the plaintiff says he fell, Mr Behan said that it showed a sealing compound like silicon, or a similar sort of compound used when stanchions are installed. He said the only thing the photograph demonstrated to him was that there had been an excess of sealant used to properly seal the holes bored through the upper deck (and of course roof of the cabin below) to prevent the entry of water. Importantly according to Mr Behan, the areas depicted in photographs 3 and 4 were in the same condition when he inspected the vessel in June 2000 as depicted in the photographs. Similarly he said the condition of the combing depicted in photograph no. 4 was the same as it was when he examined it in June 2000. He said the detachment of the combing - presumably attributable to the lack of fastening had very little to do with the integrity of the rail system as a whole. He explained that such integrity came from the fact that it was the one continuous rail going right around the upper deck of the vessel from port side to starboard side.

Mr Behan said that the combing of the cockpit on the upper deck was very securely fastened all the way around from starboard side to port side. He said it sits “on bog” which is an adhesive substance and is screwed down into the deck. This adhesive material also acts as a waterproofing agent. In fact the combing is glued and bolted onto the upper deck of the vessel as well as being held onto it by the application of glass fibre material as a bonding tie.

According to Mr Behan in company with a Mr Grigg he applied a 20 kg force to the stanchion in the vicinity of where the plaintiff said he fell overboard. On a couple of occasions the rail did not move at all. On the one occasion that it did move it moved 5 mm. He said the only significant part played by the combing in the stability of the handrail was that played by the section where the handrail was bolted to it. He said that was well away from its tailing end shown in photograph no. 4 which was not really a significant part of the combing structure at all. Mr Behan saw nothing to suggest that there was any movement between the combing around the cockpit fixed to the deck from starboard to port and where it came into contact with the upper deck.

The second expert witness called by the defendant was John McFarlane, a marine surveyor, who surveyed the houseboat for its yearly certificate of survey on

13 October 1994 - ie; a little over five weeks before the plaintiff’s fall off that vessel. Mr McFarlane said that he had no recollection of his observations of the condition of the vessel at that stage and relied almost entirely upon the content of his declaration made on that day which is Ex. 20.

He gave evidence that his practice in conducting such surveys was to visually inspect the handrails of the vessel. This would involve him putting weight on them in one or two different places. He said that it was only if he saw “something which warranted further attention” that he would have given specific attention to it. He said looking at his declaration as to the outcome of his survey made on 13 October 1994, he was confident that he did not in the course of that survey, see anything which would have warranted any further attention. In fact he did give a vessel defect notice on the date of his survey requiring attention to be given to three items, which to my mind seem to have no relevance whatever to the defect alleged by the plaintiff. Attached to the hiring agreement (Ex. 12) is a copy of the defendant’s declaration that such defects had been remedied, dated 4 November 1994. He said that his survey would have taken him between one and a half and two hours to complete.

At the end of the day the evidence given by the plaintiff and his two female companions as to the obvious deficiency in the guardrail structure around the top deck of the houseboat said to be clearly observable on the date of his fall and according to him and his companions clearly enough depicted in the photographs that the plaintiff took of aspects of that rail structure, about three months after his injury would seem to be quite inconsistent with the observations of the marine surveyor who examined the boat to determine whether any such defects existed only about five weeks before the date of the plaintiff’s fall.

In fact Mr McFarlane certified and declared on the day of his survey that -

“…the fittings and appliances for … guard rails … are maintained in an effective condition …”

Having regard to the evidence then of both Mr McFarlane and Mr Behan with their experience in safety requirements for rails of the sort over which the plaintiff fell and to the matters to which I have adverted in analysing the evidence of the plaintiff and his witnesses on liability, I am unpersuaded of the reliability of the evidence of the plaintiff or of Kelli Kennedy or of Katrina Walker as to the existence of the alleged deficiency in the safety rail structure on the upper deck of the houseboat at any time material to the plaintiff’s fall on 19 November 1994.

I accept that the plaintiff did fall from the starboard side of the upper deck of “Mercury” on 19 November 1994. It is unnecessary to determine precisely what the plaintiff was doing at the time of his fall. I have very significant reservations about his reliability and that of Kelli Kennedy in this respect. It suffices to say that in my view having rejected their evidence of any obvious deficiency in the safety rail structure on the upper deck of the boat at the material time, a possible if not indeed probable explanation for the plaintiff’s fall is that at a time when still affected by the consumption of alcohol, he leant over the rail to attract the attention of and/or to talk to his friends on the lower deck he simply over-balanced. This explanation is consistent with the account of his fall he gave to Dr Reddan on 6 March 1999. It is unnecessary however for me to make a specific finding on this aspect of the case. It suffices to say that I am quite unpersuaded that there was any deficiency in the guardrail around the top deck of a kind for which the plaintiff contended which was a cause of his falling over it on 19 November 1994.

I am unpersuaded on the evidence that the height of the guard rail which exceeded that required by the Uniform Shipping Code by 100 mm and was indeed higher than that on a number of similar vessels examined by Mr Behan on the Broadwater gives the plaintiff a cause of action against the defendant in negligence.

I will now turn to assess the plaintiff’s damages.

At the time of his injury the plaintiff was nearly 23 years of age. He was a strong fit young man who liked to play football and to surf and indeed to engage in other recreational activities that required fitness, strength and agility. At the time of trial he was nearly 31 years of age.

A number of medical and other expert reports were tended. The opinions contained in those reports were to a great extent based upon the history the plaintiff gave to the experts. The plaintiff however did not give evidence to support the whole of that history. Indeed he did not even purport to affirm its correctness. It is contended for the defendant therefore that the weight that may be given to some of the reports is significantly lessened.

Two medical reports were tendered by consent. The most significant is that of Dr Morgan who specialises in the diagnosis and treatment of orthopaedic injury.

Shortly after injury the plaintiff was taken first to hospital at Southport from where he was shifted to Princess Alexandra Hospital. He there received traction and ultimately had a fusion of the C5-6 cervical vertebrae. He remained in hospital for about a fortnight although he remained in a cervical collar for about 6 weeks. He was regularly reviewed at the outpatients department although he did not receive any initial physiotherapy. About 2 years later he commenced exercises upon the advice of a physiotherapist in Cairns.

Apart from the neck injury which was the most serious, he received a large scalp laceration which extended from near his right temple across his skull to the occiput.

When discharged from hospital he returned to reside with his parents. His mother gave him intensive care for about 1 week then less intensive care for 1 week and finally when he was almost able to care for himself she gave even less intensive care for about a week. He then left home and resided with his brother who gave him some assistance from time to time but not as much as he had received from his mother before leaving home.

About 6 months elapsed from the time of his injury before he was able to manage his daily routine without assistance from time to time by other people.

When Dr Morgan examined him in March 1999 he had been largely unemployed until about September 1998 and he attributed this unemployment to “depression” and not to his orthopaedic injury. About 6 months prior to examination by Dr Morgan however the plaintiff had obtained employment as a bar attendant in Cooktown. On examination he weighed 75kg and was 179cm tall. In this respect his weight and height did not seem to differ from that at the time of injury. There was a 5cm scar on his neck referrable to the cervical spinal fusion he had in the Princess Alexandra Hospital. The spine had lost the last 5 degrees of flexion and the last 15 degrees of extension and had also lost the last 20 degrees of both right and left lateral flexion and the last 15 degrees of both right and left lateral rotation. However he had a full range of motion in all joints, and his arms had intact reflexes. Power tone and sensation appeared normal in both arms. In particular there was no reduction in power when the muscle groups were compared in each arm. Dr Morgan said there may have been some very slight wasting of the distal part of the left forearm however he had a grip strength of 40kg bilaterally.

The spinal fusion at C5-6 had been successful but there was some narrowing of the C6-7 disk space with some sclerosis apparent. The plaintiff complained of discomfort in his left arm and Dr Morgan said that this was consistent with a compromise of the nerve root at C6 vertebrae.

Dr Morgan said that as a consequence of his neck injury the plaintiff had lost 17.5% of normal bodily function referrable to his spinal injury. This loss of function was likely to be permanent.

In Dr Morgan’s view the plaintiff’s injury had rendered him unsuitable for heavy labouring forms of manual tasks which might apply repetitive or excessive loads to his cervical spine. His left arm is also diminished somewhat in functional capacity and will restrict his activities. However the plaintiff remains capable of a number of sedentary and semi sedentary work practices through to normal retirement age.

He has a restriction on ability to engage in rigorous sporting pursuits such as rugby league, surf lifesaving and touch football. I accept that he would be still engaging in those sorts of activities (although perhaps not to the extent that he would have in 1994) were it not for this restriction.

No further orthopaedic treatment will assist the plaintiff with his disability. It may be that he will gain some benefit from analgesics taken from time to time at a cost of a couple of dollars per week.

Dr Mulholland examined the plaintiff on 12 August 1997 and again on 11 July 2002. He had regard to Dr Morgan’s report as well as other reports and as well the criminal history of the plaintiff.

The plaintiff was 25 years of age when first examined by Dr Mulholland. He said that he appeared to him to move reasonably freely and not to engage in any “pain behaviour” at the time. He found that he was pleasant and cooperative and reasonably articulate. There was no evidence of any dysphasic disorder and no dysarthria. In Dr Mulholland’s view the plaintiff did not exhibit the symptoms of a serious depressive illness although he appeared to be “mildly unhappy with his predicament”. He said when he first examined the plaintiff he concluded that he had “a mild degree of depressiveness associated with his physical symptomatology”. He observed that his condition had not stopped the plaintiff from working and he did not expect that it would impair his future ability to work.

Dr Mulholland expressed the view that since the accident any psychological problems that the plaintiff suffered had been “of a minor degree”. He observed that the plaintiff’s employment record had not been entirely satisfactory before the accident. He observed that the plaintiff’s educational background was fairly limited and thus the potential for training in anything was limited. Dr Mulholland suggested that he be examined by a psychologist to see what his capacity was for training. Although Dr Mulholland used the term “retraining” I observe merely that on the whole of the evidence it does not appear to me that the plaintiff had really been trained for anything much up until the time of his injury.

Upon his second examination of the plaintiff in July 2002 Dr Mulholland commented that one of the matters of concern for the plaintiff at that stage was that his relationship with his lady friend, which had existed for 6 years, had not progressed sufficiently to enable them to settle down and pay off a house and to have a family. The plaintiff indicated his concern with this and blamed his financial insecurity “over the past few years” for that situation.

He told Dr Mulholland that he had spent time on the Gold Coast during 2001 looking for work but had been unable to find any, although during 2000 and 2001 he had worked for about 10 months in Cooktown. During 1999 and 2000 he worked for about 6 months driving buses and delivery vehicles. For about 10 months in 1999 he worked as an assistant manager in the Cooktown Hotel.

The reason he gave for not working in 1998 was that he could not find work on the Gold Coast where he was residing at that time. He said that he had been employed most of the time whilst in Cooktown and that there was plenty of work available for fit, strong people in town who were willing to work. He expressed some concern that he did not always feel fit and strong and was limited to light work only because of his physical incapacity.

It is clear that the plaintiff used the drug cannabis up until the time his relationship with his female partner became more serious in 2000. He has used it from time to time since then although his female companion disapproves of it and tries to discourage him from doing so. He told Dr Mulholland of various convictions for criminal offences.

He complained then of severe headaches from which he suffered just about every second day which lasted for about one hour. He also complained of neck pain which from time to time caused spasms in his neck muscle. He takes anti-inflammatory drugs because of his neck pain. He uses Panadol when necessary for headaches from which he suffers. Occasionally he used Panadeine Forte for those headaches.

The plaintiff’s general emotional state had improved since he first saw Dr Mulholland. He said that he felt a sense of “insecurity” because he did not have any trade, and the fact that he is not sufficiently fit and strong to do more heavy labouring type jobs readily available in Cooktown was a major worry to him. To that time the plaintiff had never had any form of psychiatric or psychological treatment.

Dr Mulholland said that the plaintiff had “chronic low level depression as a consequence of being in chronic pain and the various frustrations and losses in his life as well as facing uncertainties regarding his future”. This depression however could not be characterised as a psychiatric disorder and should be properly characterised as “sub-clinical depression”. Dr Mulholland said that he did not need either psychiatric or psychological treatment now, nor would he need it in the future. The plaintiff complained of some problems with short term memory, however Dr Mulholland expressed the view that such a problem could not be attributed to brain injury suffered when he fell from the boat. He said that the previous substance abuse in which the plaintiff engaged would have aggravated any tendency he had to memory dysfunction. Generally speaking Dr Mulholland expressed the view that there had been a general improvement in the plaintiff’s psychiatric situation since he last examined him in 1997.

Dr Reddan examined the plaintiff psychiatrically on 16 March 1999. Her opinion is consistent with that of Dr Mulholland.

On the material generally, which I will not analyse in depth, it is clear that the plaintiff did not achieve a high scholastic level at school. Looking at the school records kept, it seems that he was not particularly interested in academic subjects and not particularly successful in manual arts in which he received some basic training. When he left school he worked at various occupations. His post school activities seemed to involve spending relatively short periods with an employer when he would leave or be sacked. He decided he would seek an apprenticeship to a bricklayer and worked as a labourer for a bricklayer over a period of time, however he had personality problems with the partner of the bricklayer, with whom he had hoped to obtain an apprenticeship, and he left there without achieving an apprenticeship. He did some training at TAFE but this did not result in him obtaining work in the building industry.

I am satisfied that even with his limited training in the building industry had it not been for the injury he suffered when he fell off the defendant’s boat, he would probably have obtained employment at some stage in Cooktown in the building industry. The reason he did not really strive to work as a bricklayers labourer in the year or so before his injury seems to be that he found it tiring and this interfered with his practice at football. He was keen on playing rugby league and it seems he was willing to postpone any attempts to become a bricklayer until the end of the football season. This was the condition in which he found himself when he was injured in November 1994.

There is nothing to suggest that the plaintiff could not drive equipment used in the building industry if he was so inclined. He has in fact been driving buses and delivery vehicles and even tractors in work which he has done as a volunteer.

He is currently working for the local council, training to do work in the bush involved in controlling different forms of plant life and animal life.

Both the plaintiff and his current companion seem to be keen on settling down and having a family in Cooktown. In my view the likelihood is that the plaintiff will be employed by the local council to do the sort of work he is training to do now and perhaps from time to time to use motor vehicles and other types of plant and equipment. There is no suggestion that he has any certificates to enable him regularly to use tractors, bobcats, end loaders and such equipment however in my view it is more than probable that if he turned his mind to it the plaintiff could obtain the necessary tickets to do this sort of work if called upon.

The plaintiff suffered greatly in the first few months after his injury. The pain must have been excruciating when he received treatment in hospital.

Out of pocket special damages are agreed at $8,044-65. I assess interest on that sum at 5% for 8 years which is $3,217-86.

I assess general damages for pain, suffering and loss of amenities of life in the sum of $55,000. I apportion those damages as to $20,000 pre trial and $35,000 post trial. I assess interest on the pre trial award at the rate of 2% for a period of 7.7 years which amounts to $3,080-00.

With respect to the plaintiff’s past economic loss I find it impossible to calculate what sum of money the plaintiff may have earned between date of injury and date of trial had he not suffered his injury. Prior to his injury he spent long periods in receipt of unemployment benefits - even it seems at a time when he was employed. He had returned from Cooktown about 9 months before his injury and had made no effort to or at least had not succeeded in obtaining gainful employment to his liking. As I have indicated he did not wish to do labouring work because he found that it tired him and this interfered with his football practice.

In my view up until the plaintiff (and his companion) became concerned at the limited financial resources that they had to permit them to marry and/or settle down together permanently and raise a family, the plaintiff was not very concerned with earning or saving income for the future. During much of the time before his injury, from the time he left school he had elected not to work consistently but to live on the Gold Coast enjoying his life with his friends and associates (as he was doing at the time of his injury) and he was prepared to live mainly or at least to survive upon unemployment benefits.

In my view the 4 years that the plaintiff spent unemployed subsequent to his neck injury while living on the Gold Coast and in Cooktown, was probably not due to any significant extent to any physical incapacity which he then had to do the sort of work which he did subsequently do after becoming more seriously involved with his current partner. Of course had it not been for his physical incapacity he may have done something within those 4 years which would have returned him a bigger income than the unemployment benefits that he received.

What I propose to do then is to make an en globo award for financial loss resulting from the reduction of his earning capacity over those 4 years to compensate him for the loss of capacity to do the sort of work which perhaps he might have elected to do from time to time had his capacity not been so reduced. In doing so I will make allowance for the possibility that he may have been motivated to regularly apply himself to work hard for a net wage of $300 or $400 per week at some stage during that 4 year period although I do not think the likelihood of him doing so is very significant. However had the opportunity presented itself when he did not have the physical incapacity that his neck injury left him with, he may have worked at least from time to time during that 4 year period. Doing the best I can I assess his loss of earning capacity during this period due to his neck injury in the sum of one third of the loss of $350 per week net for 4 years which is $24,266-00. I assess interest on that sum at 5% for 6 years which is $7,279-80.

I assess loss of superannuation rights for this period at 85% of 7% of $24,266-00 which is $1443-82. I assess interest on the sum at 5% for 6 years which is $433-46.

He told Dr Reddan in March 1999 that he was then earning $600 per week and was managing “reasonably well” financially.

From September 1998 to date of trial – for approximately 4 years I assess the plaintiff’s financial loss resulting from reduced earning capacity at $100 per week (net) which is $20,800-00. I assess interest on that sum at 5% for 4 years which is $4,160-00.

I assess loss of superannuation rights for this period at 85% of 8% of $20,800-00 which is $1,414-40. I assess interest on that sum at 5% for 4 years which is $282-88.

With respect to future loss of earning capacity I adopt the same approach as adopted with respect to the plaintiff’s loss of earning capacity from September 1998. In adopting this approach I have regard to the plaintiff’s background prior to injury and to the lifestyle he led before he became seriously attached to his current partner about 4 years ago. In my view if the plaintiff is motivated to work within the limits of his present physical incapacity, which in many respects on the whole of the evidence seems not to be very great, I take the view that there will be many forms of occupation available to him apart from the more heavy labouring types of activity which the spinal injuries (including pressure of the nerve in the left arm) will impede. I therefore make a global assessment of loss of future earning capacity on the assumption that he would not in any event have worked in heavy labouring types of occupations until he was 65 years of age.

I take the view that by the time the plaintiff reached the age of 55 years he would in any event have followed the sort of occupations that are currently within his physical capacity.

I therefore award damages for future loss of earning capacity on the basis that it has been reduced by $100 per week net for a period of 24 years.

By using the current 5% tables the present value of the loss of $100 per week for 24 years is $73,800-00.

I discount that sum by 15% for contingencies to $62,730-00. In adopting this discounting percentage I make no allowance for prospect of the plaintiff adopting the lifestyle that he followed prior to the development of his serious attachment with his current partner. I have taken that into account in assessing future economic loss until age 55 at $100 per week. The 15% discount makes allowance for death, further injury, sickness and most significantly any breakdown in the currently strong relationship which has developed between the plaintiff and his partner which on my assessment of the evidence really explains his change of lifestyle.

I assess the loss of future superannuation rights on the sum of $62,730-00 at 85% of 9% in the sum of $4,798.84.

With respect to the plaintiff’s Griffiths v Kirkmeyer claim it is agreed between the parties that the rate for assistance he received from his mother is $10 per hour and the rate for the massage treatment he has received and will continue to receive for as long as the relationship with his current partner continues is $15 per hour. I will assume that is the current rate and that he will probably reasonably require massage treatment for the next 45 years.

With respect to the 3 weeks treatment or assistance the plaintiff received from his mother I assess this aspect of Griffiths v Kirkmeyer damages as follows –

First Week      -     5 hours per day – 35 hours @ $10 per hour      $350-00

Second Week -     25 hours @ $10-00 per hour   $250-00

Third Week    -     15 hours @ $10-00 per hour   $150-00

Total
$750-00

I assess interest on this sum at 5% for a period of 8 years which is $300-00.

I assess the Griffith v Kirkmeyer aspect of damages with respect to the massage treatment given by his companion between August 1997 and August 2002 on the basis that –

over a period of 5 years he received this service between 20 minutes and 30 minutes 4 times per week – the equivalent of between 75 and 100 hours per year.

I adopt 90 hours per year.

I assess this aspect of the Griffiths v Kirkmeyer claim –

90 hours x 5 years @ $15-00 $6,750-00

I assess interest on this sum at the rate of 5% for 5 years which is $1,687-50.

With respect to costs of future massage I assess the current cost per week at $30-00.

The present value of $30 per week for 45 years using the 3% tables which is appropriate for gratuitous care is (30 x 1298) $38,940-00.

However I discount this figure to allow for the possibility that the plaintiff may at some time during the next 45 years cease to receive this service gratuitously.

The present value of $30-00 per week for 45 years using the 5% tables appropriate for paid care is (30 x 950) which is $28,500-00.

I assess damages for the provision of future massage in the sum of $33,750-00

I assess the cost of future analgesics at $2 per week for 45 years. The present value of that outlay using the 5% table is (2 x 950) which amounts to $1,900-00.

In summary therefore I assess the plaintiff’s damages as follows ─

Damages for pain, suffering and loss of amenities of life  $ 55,000-00

Interest on $20,000-00 for pre trial loss @ 2% for 7.7 years  $    3,080-00

Out of pocket special damages (as agreed)  $    8,044-65

Interest at 5% for 8 years  $    3,217-86

Past financial loss to September 1998 resulting from impaired capacity     $ 24,266-00

Interest thereon @ 5% for 6 years  $    7,279-80

Superannuation loss for this period  $    1,443-82

Interest thereon @ 5%  $      433-46

Financial loss over 4 years from September 1998 to date of trial                $ 20,800-00

Interest thereon @ 5% for 4 years  $    4,160-00

Superannuation loss for this period  $    1,414-40

Interest thereon @ 5%  $      282-88 Future loss of earning capacity  $ 62,730-00

Loss of future superannuation rights  $    4,798-84

Griffith v Kirkmeyer damages
Mother  $      750-00

Interest thereon @ 5% for 8 years  $      300-00

Partner pre trial physiotherapy   $    6,750-00

Interest thereon @ 5% over 5 years  $    1,687-50

Future physiotherapy from partner (and other physiotherapists)                 $ 33,750-00

Cost of future analgesics $2-00 per week over 45 years  $    1,900-00

Total$242,088-89

I assess the plaintiff’s damages in the sum of $242,088-89 provisionally subject to the consideration of further evidence, if any, of the plaintiff’s receipt of statutory benefits in respect of his injury and any statutory obligation to refund them.

I was advised that should the plaintiff obtain judgment for any damages against the defendant he will be obliged to make certain statutory refunds. No evidence was addressed to quantify such refunds and no argument addressed as to the effect of receipt of benefits upon his entitlement to interest upon past loss. I was advised that should the plaintiff obtain judgment such evidence would be placed before me.

I give judgment for the defendant on the plaintiff’s claim.

I order that the plaintiff pay to the defendant his costs of and incidental to the action including reserve costs if any to be assessed on a standard basis.

I give liberty to apply with respect to the quantum of any statutory refund of benefits received by the plaintiff which is relevant to the final assessment of damages.

CITATION:	Glancy v McPhail [2002] QSC 221
PARTIES:	MARTYN PATRICK GLANCY (plaintiff) v RONALD WILLIAM McPHAIL (respondent)
FILE NO/S:	S 8446 of 1997
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	9 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	24, 25, 26, 29 July 2002
JUDGE:	Ambrose J
ORDER:	Judgment for the defendant on the plaintiff’s claim
CATCHWORDS:	NEGLIGENCE – personal injuries – causation – weight and credibility of evidence – claim for damages for personal injury – where plaintiff injured after falling from top deck of houseboat – where plaintiff alleges railing on houseboat was unstable and caused him to overbalance – where plaintiff and witnesses inconsistent with expert evidence – whether railing was unstable – whether breach of duty Evidence Act 1977 (Qld), s 92 Jones v Dunkel (1959) 101 CLR 298, considered
COUNSEL:	T Carmody SC for the plaintiff R A Perry for the respondent
SOLICITORS:	Forde Lawyers for the plaintiff McCullough Roberston for the respondent