Greenslade v Hiew
[2020] WADC 120
•1 SEPTEMBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GREENSLADE -v- HIEW [2020] WADC 120
CORAM: STAUDE DCJ
HEARD: 4-8, 11-13 & 15 NOVEMBER 2019
DELIVERED : 1 SEPTEMBER 2020
FILE NO/S: CIV 285 of 2017
BETWEEN: PHILIP EDWARD GREENSLADE
Plaintiff
AND
LEE KIM HIEW
Defendant
Catchwords:
Tort - Lessor's liability - Ceiling collapse in rental premises - Injury to tenant - Whether lessor under duty to inspect for latent defects - Turns on own facts
Damages - Personal injury - Cervical injury - Chronic neuropathic symptoms after surgery - Credibility findings - Surveillance evidence - Difficulty of assessing loss and damage where plaintiff's evidence is unreliable
Legislation:
Civil Liability Act 2002 (WA)
Occupiers Liability Act 1985 (WA)
Residential Tenancies Act 1987 (WA)
Result:
Plaintiff's claim dismissed
Damages assessed provisionally
Representation:
Counsel:
| Plaintiff | : | Mr B Nugawela & Ms R Hinchliffe |
| Defendant | : | Mr T H Offer |
Solicitors:
| Plaintiff | : | Soul Legal (Perth) |
| Defendant | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Cavalier v Pope [1906] AC 428
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Index to Judgment
Introduction
Principles of lessors' liability
The ceiling collapse
The premises
The expert evidence
Mr Barry Jones
Mr Philip Faigen
Factual findings on liability
Conclusion on liability
Quantum
Plaintiff's evidence
Prior history
Post-ceiling incident history
Economic loss evidence
Evidence of Hayley Greenslade
Joondalup Health Campus records
Evidence of Dr Richard Vaughan
Evidence of Dr Fazal Shabudin
Evidence of Dr Iain Russell
Evidence of Dr John Ker
Evidence of Dr Michael Veltman
Evidence of Dr Frederick Ng
Evidence of Dr Peter Silbert
Findings as to injury
Provisional assessment of damages
Plaintiff's claim
Past loss of earning capacity
Future loss of earning capacity
Past travelling expenses
Future travelling expenses
Past services
Future services
Future treatment expenses
Non-pecuniary loss
Summary
STAUDE DCJ:
Introduction
In January 2015, the defendant Mrs Hiew was the registered proprietor of residential premises in Currambine. The premises were leased to the plaintiff Mr Greenslade.
In the early hours of 11 January 2015, the ceiling of the family room collapsed catastrophically. According to Mr Greenslade, he was injured when part of the collapsed ceiling struck him on the head causing him to fall to the floor.
Mr Greenslade claims that Mrs Hiew is liable in damages for negligence. He alleges that she 'owed a duty of care to prevent the foreseeable risk of injury or harm to [him] whilst he was at the premises'. Mr Greenslade pleads that Mrs Hiew was negligent by:
(a)Failing to ensure that the ceiling in the family room of the premises was properly affixed to the premises.
(b)Failing to repair the ceiling in the family room of the premises as such that it would not collapse onto the plaintiff.
(c)Failing to implement and enforce a system of inspection, maintenance and repair of the ceiling in the family room at the premises.
(d)Allowing the plaintiff to enter the premises when the defendant knew or ought to have known that it was unsafe to do so.
Mr Greenslade also pleads that Mrs Hiew knew that there was a sag in the ceiling before it collapsed, that she permitted her husband to repair the sag knowing that, not being a professional ceiling fixer, he was not qualified to do so, and did not take any subsequent steps to assess or repair the sagging ceiling.
Essentially, Mr Greenslade's case is that Mrs Hiew knew or ought to have known that the ceiling was defective and failed to have it properly repaired. Counsel opened on the basis that there were two bases of liability: first, that the ceiling had been repaired by Mrs Hiew's husband, but not properly, leaving it at risk of collapse; and second, that Mrs Hiew was under a duty to inspect the ceiling and failed to do so, contending that if she had done so, defects would have been discovered in the ceiling that could have been repaired, thus obviating the risk of the ceiling collapsing.
Counsel for Mr Greenslade did not contend that there were signs observable by Mrs Hiew that the ceiling was defective, rather, that there were signs that warranted an expert inspection of the ceiling. Furthermore, as counsel put it:
[I]f you are a landlord and you're renting premises out for profit over a 20-year period and you don't bother … having proper inspections done, you assume that liability risk in my respectful submission for that which could have been apprehended or minimised by engaging a competent person on a regular basis.
It is not pleaded that the defendant was negligent by failing to inspect, maintain and repair the roof, but it was argued by Mr Greenslade that if an expert inspection of the ceiling had been done, faults would have been detected in the roof that, if remedied, would have prevented water getting into the roof space and damaging the ceiling.
There is no claim for breach of any contractual obligation. No reliance is placed on s 42(1) of the Residential Tenancies Act 1987 that incorporates in every residential tenancy agreement a term that the landlord 'must maintain the premises in a reasonable state of repair having regard to its age and character and must conduct any repairs within a reasonable period after the need for the repair arises'.
Mrs Hiew denies that she was negligent and alleges that the ceiling collapse was caused by Mr Greenslade's negligence, pleaded as:
8.1failing to identify that the ceiling in the family room was not properly affixed to the premises;
8.2failing to report to the defendant that the ceiling in the family room was not property affixed to the premises;
8.3failing to identify that the ceiling in the family room required repairs;
8.4failing to report to the defendant that the ceiling in the family room required repairs;
8.5failing to identify that it was not safe to enter the premises;
8.6failing to report to the defendant that it was not safe to enter the premises;
8.7failing to inspect or identify any damage to the ceiling;
8.8failing to report to the defendant any damage to the ceiling.
Evidence relevant to the issue of liability was given by Mr Greenslade and his daughter, Hayley Louise Greenslade. Mr Greenslade also called an expert witness, Mr Barry Jones, an architect and building consultant. For the defence Mrs Hiew gave evidence, as did her husband Mr John Hiew, and an expert witness, Mr Phillip Faigen, also an architect and building consultant.
The main factual issues for determination with respect to liability are what caused the ceiling to collapse, whether the ceiling exhibited any signs of any defect or damage prior to the collapse and whether the ceiling had previously been repaired in an unsatisfactory manner.
Principles of lessors' liability
The case was contested on the basis of common law principles. The issue is not whether a duty of care was owed by Mrs Hiew to Mr Greenslade, but rather the nature and extent of that duty.
In this case, Mr Greenslade did not invoke the Occupiers Liability Act 1985 (WA) (OLA). Rather, he argued that on the principles gleaned from the leading case of Jonesv Bartlett [2000] HCA 56; (2000) 205 CLR 166, a duty to inspect the ceiling could be established.
Jones v Bartlett was decided according to common law principles. Following Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, the High Court confirmed that the landlord's immunity rule in Cavalier v Pope [1906] AC 428 was not the law in Australia. The decision ultimately turned on whether, in the circumstances of the case, there was an affirmative duty to inspect the premises prior to the commencement of the tenancy to discover any defects that would create a risk of harm to anyone entering the premises.
The High Court, for various reasons, held that s 9(1) of the OLA did not apply so as to create a statutory duty of care. Gleeson CJ and Gaudron J held that the landlord was not an occupier at the time of the injury. Gummow and Hayne JJ, with whom McHugh J agreed (in dissent), held that s 9(1) did not apply because there was no failure on the part of the respondent as the landlord to carry out any maintenance or repair for which it was responsible. Kirby J found that the duty imposed by the OLA was no different from that which applied under the common law, and Callinan J concluded that the tenancy agreement made the tenant, not the landlord, responsible for maintenance and repair such that s 9(1) had no application.
As to the formulation of the landlord's duty, the members of the High Court likewise expressed different views. Gleeson CJ said that the duty was 'to take reasonable care to avoid foreseeable risk of injury' ([56]). Gaudron J held that the landlord owed a duty to 'take reasonable care to put and keep premises in a safe state of repair' ([93]). Gummow and Hayne JJ held that the landlord owed a duty to take reasonable care to ascertain the existence of any dangerous defects and take reasonable steps to remove them or to make the premises safe ([173]). Kirby J said the landlord owed a duty to take 'reasonable care to avoid a foreseeable risk of injury to a person in the position of the appellant' ([253]). Callinan J said he would define the duty as no more than 'a duty to provide, at the inception only of the tenancy, habitable premises' ([289]).
McHugh J considered that 'the common law duty of care owed by a landlord to a tenant and other members of the tenant's household is to take reasonable care to avoid foreseeable risks of harm to those persons having regard to all the circumstances of the case' ([100]). His Honour said that the duty extended to dangerous defects, but was not limited to them.
Howsoever the duty of care of a landlord is defined, it no more than a duty to take reasonable care. Liability is not strict.
Of particular relevance to this case are the observations of Gleeson CJ, at [58]:
Whether it is reasonable to require an owner of the premises to have them inspected by an expert before letting depends upon the circumstances of the case. There is no answer which is of universal application. Deciding what the answer should be in a particular case involves a factual judgment, and does not provide the occasion for the imposition of a requirement of the law.
This statement resonates with McHugh J's formulation of the duty of care and his Honour's statement at [101]:
As in other areas of the law of negligence, the relevant circumstances will include both those of which the landlord knew and those of which the landlord ought reasonably to have known.
The dicta of Gummow and Hayne JJ are also instructive:
The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put. The duty with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord takes reasonable steps to remove them or to make the premises safe. ([173])
…
The diligence required to ascertain dangerous defects will not in the ordinary case require the institution of a system of regular inspection for defects during the currency of the tenancy. In Northern Sandblasting (1997) 188 CLR 313 at 394, Kirby J said of a posited requirement of inspections of domestic electricity systems:
'If correct in principle, it would require regular inspections against the risk of other perils, e.g., gas supply, floorboards, balustrades, etc. In the absence of evidence about the prevalence of, and need for, any such inspections of rented accommodation, there was no foundation for imposing such a duty on landlords leasing residential premises'.
Nor is there a requirement for the engagement of experts in each of the fields, such as electrical wiring, and glass fabrication and installations, where such risks of defects could, in the nature of things, be seen as a possibility. ([183 ‑ 184])
On the authority of Jones v Bartlett, and adopting the formulation suggested by Prof Tina Cockburn (Duty of Care of Landlords of Residential Premises, (2001) 20 University of Tasmania Law Review 201), counsel for Mr Greenslade submitted the following proposition:
[I]n the absence of some special contractual arrangement, notice of defect, or a legislative requirement, ordinarily the landlord does not have an affirmative duty to inspect, although such a duty may arise in the special circumstances of the case. (226)
In my view, that is a sustainable proposition applicable to this case. Counsel for Mrs Hiew did not seek to contradict that formulation.
The ceiling collapse
Mr Greenslade said he was walking from the family room towards the kitchen, having been watching television. The time was 3.00 am. His daughters Gemma and Kasey were asleep in their bedrooms. His daughter Hayley and her daughter, who occupied the lounge room, were not at home. Mr Greenslade said that he went towards the kitchen to get a drink of water when he heard a 'thundering, cracking sound' and was slammed onto the floor. He said when he got up he was covered by the ceiling with insulation all over him. He noticed a 'glowing thing in front of my eyes' that he said was orange and his 'ears were ringing'. He noticed blood coming from both ears.
He went and told his daughters Gemma and Kasey what had happened. They did not come out of their rooms. He said this was at about 4 o'clock, one hour after the ceiling collapse. Mr Greenslade did not give any evidence as to how he was able to tell the time at which the ceiling collapsed and the time at which he got up and went to his daughters' bedrooms.
He said he had pain all over his body and cuts on his fingers. He also said (ts 27):
My eyes were glowing. I could see glowing in front of my eyes. My ears were ringing. I had tingling in my neck and down my left arm and I had pain in - in my back, pretty much all over where - where I go slammed into the floor so quick. Then the pain started to - to creep up more. I went and got showered and changed to - to get the ceiling - ceiling and the Cool n Cosy off of me.
After the ceiling collapsed he said that he saw that there was electrical wiring hanging down in the family room and he also noticed a pair of the nail heads that were exposed by the ceiling collapse. The nails protrude from a ceiling joist by about 10 mm. They are depicted in photographs that have been commented upon by the expert witnesses. On the head of each nail can be seen a plug of white material (of about the same length) that Mr Greenslade thought was silicone. (What Mr Greenslade described as nails, clearly appear to me to be screws, but for convenience I will refer to them as nails in these reasons.)
At this stage the kitchen lights were still on. Mr Greenslade observed the insulation material that he described as Cool n Cosy. In some parts it was in solid lumps and in other parts fluffy. The solid insulation material was in the middle of the ceiling as he indicated by reference to the floor plan of the house (exhibit P3.21).
He took some photographs on his phone, but lost them. He later asked his daughter Hayley to take some photographs on her phone. These included a photograph of the nails described by Mr Greenslade (exhibit P3.18). This photograph was taken after emergency repairs had been done to the ceiling as can be seen from the black builder's plastic over the joist. Mr Greenslade also pointed to a photograph that showed a pair of green masonry plugs (anchors) in a wall of the family room at cornice height.
He said that after taking some photographs that morning he went to sleep until 9 o'clock when Mr and Mrs Hiew arrived, having been called by Hayley. He saw Mr Hiew standing next to the kitchen bench. He pointed out to him the nail heads and said words to the effect 'you should have done a proper job'. He said Mr Hiew replied that he had 'pushed it up and fixed it'. Mr Greenslade said that Mrs Hiew overheard the conversation and told her husband to be quiet. He said that Mrs Hiew said the people who fixed the roof had gone out of business. Mr Greenslade did not explain why he asked Mr Hiew about not doing about a proper job. He gave no evidence of having any prior knowledge of any repairs to the ceiling.
Mr Greenslade said that he later received a call from an insurance company. He said that the person who called him, whose name he did not remember, told him that the insurer could not fix the ceiling, unless he said that the ceiling was fine before it fell down. He asked his daughter to respond accordingly. She sent an email from his email address using her mobile phone.
Mr Greenslade sent an email to Mrs Hiew on 27 January 2015 asking her to refer his claim for compensation for injury to her insurer. On 4 February 2015, Ms Roseanne Smyth, a liability claims consultant, sent a letter to Mr Greenslade by email asking for his reasons for holding Mrs Hiew at fault. He responded on 11 February 2015, stating:
I am holding your customer at fault as I am renting their invest (sic) property, so therefore they are liable for the damage caused to my neck when the ceiling came down on me.
By email on 16 February 2015 Ms Smyth asked:
Were you aware of any water leaks or maintenance issues with the property prior to the ceiling collapsing? If so, did you make our customer aware of any such issues?
Mr Greenslade responded on the same day:
Prior to the ceiling collapse there was nothing to indicate that the ceiling was about to collapse. It literally went from looking like the ceilings throughout the rest of the property to collapsing.
Mr Greenslade said he recalled that there had been thunderstorms with hail in December and October, before the date of the incident. He said that the December storm was within a short time of the ceiling collapse. The relevant Bureau of Meteorology Severe Storms Archives were tendered (exhibits P10.1 and P10.2). The rain archive for the period 1 June 2014 to 27 January 2015 records that on 18 October 2014 there was a severe thunderstorm that formed near New Norcia and tracked to the south-west and over the Perth metropolitan area during the afternoon producing heavy rainfall and large amounts of small hail, with some larger hail reported. The archive also records severe thunderstorms producing heavy rain large hail and damage to parts of the Central West district on 26 November 2014, noting that severe thunderstorm warnings were issued including for the Perth metropolitan area, with warnings issued every 30 minutes. There was no evidence of the criteria of a severe storm, so the archive does not necessarily contradict Mr Greenslade's evidence of a thunderstorm with hail in December 2014, though it certainly confirms a hailstorm in October 2014.
The premises
Mr Greenslade entered into a tenancy agreement with Mrs Hiew on 22 June 2013 about 18 months prior to the date of the incident. The handwritten agreement (exhibit P3.9) did not contain any terms relating to the maintenance of the premises, except that cl 2 provided that the bond would be returned to the tenant upon surrendering the premises in a satisfactory condition, and cl 4 provided that the tenant should keep the premises and surrounding area in 'a reasonable neat condition'. While Mrs Hiew did not comply with the requirements of s 27A, s 27B or s 27C of the Residential Tenancies Act in terms of the form of the lease, the information to be provided to a tenant, and the preparation of a property condition report, no relevance has been ascribed to these breaches of the Residential Tenancies Act, except to ground the comment that Mrs Hiew was generally careless in her management of the premises.
Mr Greenslade inspected the premises in company with his daughter Hayley. According to Mr Greenslade, the gardens were overgrown with weeds and grass and the eaves were water stained. It appeared to him that the owner had not taken proper care of the property. Inside, he noticed the smell of fresh paint. The family room and kitchen appeared to be freshly painted. He noticed six holes in the ceiling between the family room and the kitchen that had been plugged with silicone and painted over. In a shed he found a tin of ceiling paint and a silicone gun. He observed a hole in the back of the front door. The cupboard doors in the kitchen and the doors of the bathroom vanity unit were rotted and falling down. He also said Hayley pointed out a crack in the ceiling of the bathroom. None of these things was reported to Mrs Hiew who was present at the time.
On the same day, Mr Greenslade offered to rent the premises for $480 per week, more than the advertised rent. He said he needed a big house. It was in a quiet area, close to work and friends. He fixed up the cupboard and vanity doors himself using longer screws. Neither Mrs Hiew nor her husband made any inspection of the premises between the date of the tenancy agreement and the date of the ceiling collapse. No one came to clean the gutters in that time.
In cross-examination, Mr Greenslade was challenged as to his evidence that there was a hole in the front door and that the vanity units and kitchen units were rotted and falling off. When questioned he clarified his evidence, saying that the bathroom ones were rotted. When it was put to him that all he did was tighten a few screws on a couple of the cupboards, he said that he had to replace screws with longer ones. He was also challenged on his evidence that the family room, kitchen and dining area had been freshly painted. The evidence of Mrs Hiew was to the contrary. Her evidence was also that the house had been vacant for a year before it was let to Mr Greenslade.
Mr Greenslade had difficulty dealing with questions about his evidence of holes in the ceiling filled with silicone. He said that when he inspected the premises he saw about six holes that were painted over and that appeared to have been filled with silicone. Clearly, if the holes were painted over he could not have seen what filler was used, at least not without a close inspection (of which he gave no evidence). His evidence that he saw silicone on the ends of the nails that were exposed by the ceiling collapse did not make sense either. While the issue of what was used as a filler in any holes was immaterial, Mr Greenslade's answers reflected on his credibility in a way that I will expand upon later.
Ms Hayley Greenslade gave evidence that she attended the premises with her father. She said they did a quick, rough inspection. She gave no evidence of any observations she made at that time.
Mrs Hiew bought the premises as an investment in April 1995. The house was less than one year old at the time. She carried out some initial improvements by installing flooring and painting the house. Mrs Hiew let the premises to her sister-in-law initially, and from 1999, to a series of different tenants. The last tenant before Mr Greenslade vacated the premises in June 2012. Mrs Hiew said that when it was let to Mr Greenslade in 2013, it was in good condition. She said the front door was old, but not damaged. She denied that there was anything wrong with the kitchen or bathroom cabinets. She said there was no observable defect in the ceiling. She had not carried out any repairs to the ceiling during her ownership of the property and was not aware of any repairs that needed to be done. She had not received any complaint by Mr Greenslade or any tenant about the state of the ceiling.
She was cross-examined extensively as to the history of the premises by reference to various tenancies. She said that her husband, a retired businessman, kept records, but did not deal with tenants and did not do inspections or repairs. Mrs Hiew's approach was to tell tenants to let her know if anything needed to be done. She would observe the state of the premises when she was showing them to prospective tenants between tenancies.
A property condition report prepared for a tenancy agreement dated 19 October 1999 noted some minor non-structural cleaning and maintenance issues, but the ceilings in all rooms were ticked as undamaged. In August 2003 Mrs Hiew engaged a real estate agent, David G Evans, to be her managing agent. A property condition report was prepared in July 2004 the purposes of a lease agreement with Ms Lindy Westwood who occupied the premises until 2011 (exhibit P17). This report contains no adverse comments with respect to the ceilings, except for the third bedroom, the laundry, and the meals area. In the third bedroom there were some marks on the ceiling. In the laundry there was a noticeable weather mark. The comments made in relation to the meals area were:
Painted white, there is one repair mark leading to the kitchen area, the cornices are white, the walls are painted peach. There are six or seven rub marks in the paint and one patch repair marked the lower level and one to the higher level.
Mrs Hiew said she was not present when the inspection was made. She could not explain why the report stated that that damage to a wall of the activity room had been repaired and painted over by the owner. She said she only painted the house once, when she bought it. Any other painting would have been done by a tenant. She said that she permitted a Mr Michael Harris to paint the house. He rented the premises in 2002.
Mrs Hiew agreed that she was advised in a quarterly inspection report prepared by David Evans Real Estate in October 2005 that the bottoms of the kitchen cupboards and ensuite vanity unit were worn. She agreed that this indicated that the premises were ageing.
In a quarterly inspection report by the agent dated 19 April 2006, it was noted that the exterior paintwork was showing signs of wear. Mrs Hiew was asked whether she wanted to obtain a quote for painting of the external woodwork and roof plumbing. Mrs Hiew did not authorise painting of the exterior then or at any time prior to the commencement of Mr Greenslade's tenancy in 2013. There was no suggestion that any lack of maintenance of the exterior paintwork contributed to the ceiling collapse. Rather, counsel for Mr Greenslade sought to show that Mrs Hiew neglected the upkeep of the premises.
Mrs Hiew accepted that she did not do a thorough inspection of the house before she let it to Mr Greenslade, but she said she did look through it from room to room. She did not see a crack in the bathroom ceiling, or any ceiling, or any cracked cornices. She did not see any putty coming loose from any nail heads. She saw no sagging. She never had anyone inspect the roof space.
Mrs Hiew gave frank evidence that I accept. None of the documentary evidence that was put to her (exhibit P17) pointed to any damage to the ceiling, or any observable defect that, in my view, would have put her on notice of a need to repair the ceiling or to have it inspected.
Mr John Hiew's evidence was that he carried out no ceiling repairs at the premises and never told Mr Greenslade that he had. I accept his evidence.
Ms Lynette Westwood gave evidence for the defence. She lived as a tenant in the premises from July 2004 to October 2011. During that time she had no concerns about any aspect of the ceiling. Whenever a maintenance issue arose she would notify Mrs Hiew and they would it sort it out. Mrs Hiew would pay the cost or reimburse her. Some plumbing jobs were done by her son who was a plumber by trade. During the course of her tenancy she obtained Mrs Hiew's permission to install plumbing for a refrigerator. There was no suggestion made in the course of the trial that plumbing work was relevant to the collapse of the family room ceiling.
The expert evidence
Mr Barry Jones
Mr Jones, the plaintiff's expert, was asked for his opinion in relation to various matters relating to the plaintiff's claim. By letter from Mr Greenslade's former solicitors dated 17 March 2015, he was asked to inspect the ceilings in the premises and to advise of any observed defects. By that time the family and meals area ceiling had been replaced.
In his report dated 30 March 2015, Mr Jones stated that an inspection of the underside of the ceilings throughout the house showed the ceilings to be visually sound with the exception of the activity room (as described on the floor plan, exhibit 3.21) and lounge room, where some nail heads had slightly recessed into the ceiling sheet and flushed joints were noticeable, and in the laundry where a linear crack had developed between abutting sheets. He also noted that a short crack had developed adjacent to the bathroom shower recess wall corner.
Mr Jones commented on the exposed nail heads shown in one of the photographs. He said they showed that the ceiling appeared to have sagged from the underside of the joists by at least 15 mm as indicated by the length of the filling, and that the ceiling would have been noticeably sagging and pulling the cornice off and away from the wall. He also observed that the green plastic masonry plugs depicted in one of the photographs appeared to support the cornice of the ceiling. In his opinion, it was not an acceptable means of fixing a cornice to a wall and did not comply with the relevant Australian standard (AS/NZS2589). He said that this feature suggested that a handyman had repaired the ceiling, not an accredited ceiling fixer. He also observed disturbed flushing over some nail heads. He said that the appearance of a recessed nail signified that the ceiling had dropped.
Inside the roof space over the meals area, he observed that fibreglass straps over the ceiling joists that supported that part of the ceiling that had not been replaced. He observed signs of fibreglass straps on other joists in the area where the ceiling had collapsed. In his opinion, strapping was not an acceptable means of supporting the ceiling and did not comply with the relevant standard. Mr Jones said in evidence that straps used to be used to support plasterglass ceilings. He had seen such ceilings collapse due to water entering the roof space and causing separation of the straps from the plasterglass sheets.
Mr Jones said that his observations of recessed nail heads and noticeable flush joints in the lounge and activity rooms indicated that the ceiling sheets in those rooms were deflecting, or sagging. He explained that when a Gyprock ceiling is installed, the Gyprock sheet is glued to the underside of the ceiling joists and the edges of the sheet are nailed to the joists. A Gyprock sheet was normally 900 mm x 1500 mm. The long side of the sheet runs along the ceiling joist such that two sheets abut at a joist. The short side of the Gyprock sheet is supported by the cornice. The joints between the Gyprock sheets would be flushed with a compound that is rubbed back to give a smooth finish.
The cornices were held up by cornice cement. For that reason he thought that if a ceiling sheet sagged, then it would pull the cornice from the wall. This would be evident from a linear crack along the underside of the cornice. He inferred from photographic evidence of green masonry plugs in the wall of the family room at the height of the cornice that someone other than an accredited ceiling fixer, possibly a handyman, had fixed the cornice to the wall by screws because it had come away. An accredited ceiling fixer would have fixed the cornice with cement.
Mr Jones thought that the penetration of nail heads into the ceiling sheets could have occurred at the time of fixing, but might also indicate that water in the roof space had weakened the structural integrity of the ceiling. He thought that the evidence of masonry plugs indicated that screws were used to hold up the cornices in a non-conventional manner. That feature and the filling of nail head holes with plaster indicated that at some time after the home was constructed the ceiling had sagged.
An inspection of the roof showed that there was a deflection (sagging) in the roof over the kitchen area due to an underpurlin strap that required re-tensioning. Lack of tension in the underpurlin strap had caused some deflection of the roof line. Asked whether this would affect drainage, he said that there was a tendency for water running down the tiles not to run as fast over flatter tiles and that on a very windy day it was possible that the wind would blow water back up the tiles and into the roof space.
Mr Jones also observed cracked, defective and missing mortar around the roof tile caps, in particular on the hip over the family room. A photograph of the tiles shows one join between two capping tiles where the mortar is cracked and displaced. Cracking was a sign of a deflection in the roof.
He also observed the gutter to be full of compacted leaf debris. His observations of the house generally were that it was poorly maintained.
In his opinion, rainwater had entered the roof space around the defective roof tile caps over the family room, causing ceiling sheets and fibreglass straps to become moist and progressively reduce their structural integrity and adhesion.
His alternative theory was that glue dabs applied to the underside of ceiling hoists may have 'skinned' during hot water and not full adhered to ceiling sheets causing the ceiling sheets to progressively sag in the middle of each sheet until the entire weight of the ceiling exceeded the capability of the perimeter fixing nails to support the entire ceiling.
Mr Jones' relevant conclusions were reported as follows:
•Defects to the ceiling and cornices in particular around the family room external corner would have been noticeable, probably for some considerable time.
•The sagging Gyprock ceiling over the family area should have been screwed back to the underside of ceiling joists and refixed with large head brass screws at close centres, and the cornice should have been re-grouted.
•Roof tile caps over the entire house required rebedding with flexible mortar.
•The underpurlin strap over the kitchen required retensioning to straighten the roof line.
When asked in evidence‑in‑chief about his opinion that the ceiling collapse was caused by the ingress of water, Mr Jones said it was difficult to say over what period of time damage to the ceiling would occur. He said it would depend on how much water got in when it rained. One deluge could cause a ceiling to collapse, but if water entered slowly, it could take many years. He said that the fibreglass straps supporting the ceiling would lose their adhesion to the sheets until gradually the sheets became too heavy and dropped.
In his opinion, deflection of the roof was a maintenance issue that needed to be checked. He thought it would take many years for the deflection and the damage to the tile caps that he observed to occur. Deflection affected drainage. He said there was a tendency for water not to run as fast over flatter tiles such that, on a very windy day, it was possible that the wind would blow water back up the tiles and into the roof space.
In his experience, a ceiling very rarely dropped. Mr Jones thought that where the original ceiling sheets had deflected they could have been re‑fixed with large head nails. He thought that what had been done was fill the penetrations and re‑paint the ceiling. I understood Mr Jones' evidence to be that there were signs of deflections in the ceilings in the lounge room and activity room that warranted an inspection of the ceiling.
It was suggested to Mr Jones in cross‑examination that defects in ceilings generally occurred within a year or so of construction. In his opinion, defects in the finish of the ceiling might, but problems with fixing generally took years to be noticeable. A scenario was suggested to Mr Jones that at some point after the initial installation of the ceilings some sagging had occurred that was repaired by strapping. Mr Jones conceded that possibility, but observed that the signs of strapping that were shown in the photographs appeared to show that it was inadequate. He agreed, though, that the filling of the holes caused by the nails (or screws) was consistent with such a repair. He thought nevertheless that the ceiling would still appear to be sagging to most people.
He confirmed that what he described as slightly recessed nail heads in the activity room and lounge room were not significant, but indicated that there had been 'some form of movement, either generally, structurally, or through moisture'. His observation that 'flushed joints were noticeable' indicated that there had been some movement, either of the ceiling sheets or the joists. Similarly, the linear crack in the laundry indicated some form of movement. There was also a short crack adjacent to the shower recess in the corner of the bathroom.
Mr Jones said he was unable to say what the ceiling in the family room would have looked like before the collapse, except that there would have been some kind of sagging. He said:[1]
For the ceiling to come down as it says, it seems to indicate to me that a lot of the sheets had pulled through the nails, and in my view that would have been noticeable on a regular inspection, but that I cannot say.
[1] ts 190.
He said that if it had been observed on inspection then it could have been re-fixed. Mr Jones remarked that he had developed a good eye, but added:
I'm surprised, sometimes, that I go into houses to inspect for someone that's purchasing it and I have noted the ceiling as defective, flat, and sort of a sail-like pattern, but the owners - present owners have never noticed it.
He accepted that a ceiling could fail catastrophically from water ponding in the lower part of the sagging ceiling. In re-examination, he said a Gyprock ceiling was designed to remain sound even after a rainstorm and that it would take some years to show any form of defect. However, he could not be definitive about time. He said:
[G]enerally … ceilings very rarely just simply collapse. They - it normally shows that they're defective for some time. But quite how long, it's just dependant on how much water is getting into the roof and how long it's staying there.
Mr Philip Faigen
The expert called by the defence, Mr Faigen, gave evidence in the terms of his report (exhibit D6). Mr Faigen said ceilings collapsed for one or a combination of three reasons: improper installation, water ingress into the ceiling space, and structural damage. Improper installation referred to a failure to properly apply the adhesive, improper jointing, or not fixing the sheets in accordance with relevant standards. In such cases, the defective work became apparent soon after installation, most commonly before the end of first full cycle of seasons. Water ingress into the ceiling space was caused by leaks from plumbing or air conditioning units, or rain. Water could cause damage and breakdown of the ceiling material and the adhesive. Structural damage could be caused by termite attack or excessive loading to the supporting structure and could be visible as cracking of the sheets or joints showing deflections, or the sound of cracking before a collapse.
Mr Faigen outlined the history of modern ceiling materials and installation. Traditionally plasterboard was used. This was installed by nailing sheets to the timber joints to temporarily hold them in place while the sheets were fixed from above by applying strands of hemp or fibreglass soaked in liquid plaster, a process called 'wadding' or 'strapping'. Paper-faced Gyprock plasterboard was introduced in 1947. The product consists of gypsum between two layers of building paper. In 1995 CSR, the manufacturer of Gyprock, introduced an acrylic adhesive to enable Gyprock plasterboard to be fixed by applying adhesive to the underside of the joints and screwing sheets from the underside without the need to gain access to the roof space. So, the system of nail fixing and 'wadding' or 'strapping' was superseded by screwing and gluing ceiling sheets in place, but continued to be used, often in combination with screwing and gluing. It remains a valid and acceptable method of installation and maintenance. Mr Faigen annexed to his report an excerpt from AS/NZS 2589:2017 that calls the process 'scrimming'.
Mr Faigen said a number of signs might indicate to a non-expert that a ceiling might need maintenance. He described and commented upon them, as follows:
1.Sagging or dropping ceilings were often recognised by shadows cast from glancing light on the ceiling, or deflections along the cornices.
2.Cracking may suggest that the ceiling needed to be inspected, though cracking was often seen along joint lines and might not necessarily be of concern. Cornice cracking and associated minor differential cracking at the walls was not a sign that a ceiling was liable to collapse, such differential cracking being observable in almost every residential building.
3.Regular patterns of 'nail popping' might suggest the need for inspection, though isolated blemishes due to screw heads being visible might simply indicate that filling is required. The 'nail popping' indicated in the plaintiff's photographs did not indicate anything more than the need for very minor maintenance by a painter upon re-painting. However, a continuous line or pattern of sunken screws beneath a ceiling sheet was a sign that the bond or fixing to the joist was failing and that urgent action was required.
4.Water stains would raise concerns, if not for the ceiling, for the fact that water was getting into the ceiling space.
Mr Faigen's report attached a fact sheet published by the Building Commission of Western Australia headed 'Spontaneous Ceiling Collapse' which cited the warning signs of a ceiling under stress prior to collapse as including a loud cracking sound, a sagging or dropping of the plasterboard sheeting and/or the cornice, and visual cracking and/or nail pops in the ceiling, a straight line of such circles being a sign that the plasterboard sheeting was pulling away from the ceiling joists. The same fact sheet indicated that a variation in the height of the ceiling of 12 mm or more could indicate that the plasterboard had detached from the ceiling joists.
Mr Faigen reported that ceilings showing signs of failure could be fixed by propping the affected area and re-screwing the ceiling sheets, propping and applying wads to the upper surface of the ceiling sheets, or replacing the entire area with new ceiling sheets.
It was Mr Faigen's experience that ceiling defects generally occurred within the first year after construction and that, in this case, it was likely that the original owner of the property did remedial work to obtain a better fixing of the ceiling. Mr Faigen's hypothesis was based on the evidence of wads (or straps) used throughout the premises. Although adhesive wads were usually placed at 200 mm - 300 mm intervals, as Mr Jones' mentioned, Mr Faigen explained that if used as part of a maintenance process, wads could be installed in 'a less rigid pattern in conjunction with screwing, where, for instance, the deflection is greatest and where screwing may be used in conjunction with wads to achieve the best alternative'.
In this case, he thought that the original family room ceiling had been fixed inadequately and had sagged. It was probably repaired by propping it, inserting new screws and applying wads to the areas where the adhesive had failed. Mr Faigen explained this process diagrammatically in appendix 5 of his report. Like Mr Jones, he thought that ceiling fixers would not have used masonry anchors (green plugs) to hold the cornice. He surmised that the green plugs were more likely used by a lay person to prevent failure of the cornice, prior to the ceiling being repaired with wads.
Mr Faigen observed that in other areas of the house, wads had been installed as needed or as a precaution. He did not get into the ceiling space, but was able to observe it from the manhole. On inspection, the other ceilings were sound and firmly affixed. He used a strong torch light against the ceilings and could not see any significant flaws.
Mr Faigen's opinion that the ceiling had been repaired by a previous owner was informed by an instruction that Ms Hiew had not done any remedial or maintenance work to the ceilings since she acquired the property.
Mr Faigen was also informed by a report to the insurer by Cunningham Lindsay Australia Pty Ltd dated 21 January 2015 (appendix 8) that stated:
We then inspected areas around the collapsed ceiling area and we noticed water damage to several small areas adjacent to the main ceiling.
There were as many as six small areas of water damage throughout the surrounding ceiling areas …
We then inspected the roof immediately above the affected areas and saw that the roof was in good condition with no evidence of any storm related damage.
There was however two valley gutters located above the affected ceiling area and following further questions to the tenants we have concluded that during recent storms where there was considerable hail we believe that the valley gutters have filled with hail and water has back flowed into the buildings.
Due to the blow-in type installation this prevented water from immediately running through the ceiling sheets but it has absorbed the moisture until it becomes quite heavy.
This in turn has caused adhesive to slowly release and as the ceiling sheets became detached they also became heavier until such time as they have collapsed …
Although the author of the report was not called, no objection was made to its tender as part of Mr Faigen's report. Mr Faigen located the two valley gutters referred to in the assessor's report. On his inspection, the roof was sound. He did not agree with Mr Jones' assessment in that regard. In Mr Faigen's view, the state of the gutters, the cracked mortar around a capping tile, and the deflection of the roof were irrelevant to the cause of water ingress. Rather, he considered that while the roof tiling remained watertight, it was 'quite plausible that when the valleys became congested with hail, water overflowed into the roof space'. In this regard, I note that it is not contended as a particular of negligence that Ms Hiew was negligent by not maintaining the roof in good repair, or allowing the gutters to fill with leaves. Counsel made it clear that the evidence was relevant only to show that the premises were not well maintained.
It was Mr Faigen's opinion that the work to repair the original ceiling was carried out by tradesman using proper procedures, except the fixing of the cornice using green masonry plugs. Mr Faigen was also of the view that on the information provided to him there would not have been any visible evidence of defects in the ceiling prior to its collapse. He said in his report at 5.5:
Despite the fact that water may have entered into a ceiling space it may not have been seen from within the house if the installation absorbing moisture spreads it over a wider area in such a way that it does not penetrate the joints, screw fixings or comes in the interior via light fittings.
Water damage from a single, localised, source is often seen as staining to the ceiling, or even water falling onto the floor below when it is concentrated in sufficient volume to do so.
This situation can occur if the volume of water is not excessive, but is held in a moist state in the installation without drying out but causing a breakdown of the plaster matrix of the ceiling board.
That is to say that, in this instance, the first manner manifestation of water damage would have been when the ceiling collapsed.
Mr Faigen stated that water was enough to break down the plaster. It usually happened in and around screws where the paper backing rots and the plaster infill becomes so soggy that the added weight of water saturated insulation causes the fixings to fail.
Mr Faigen agreed with Mr Jones' observation that sagging of the ceiling had occurred, but he thought it was by 10 mm and considered that it was probably in that position for about 20 years. He did not consider that the ceiling would have been noticeably sagging and pulling away from the wall. If the entire ceiling had sagged by 10 mm over a wide enough area such as the family room it would be unlikely to be noticed. On the other hand, if the sagging occurred recently, and to the extent of 15 mm, in a localised area, it would have been visible.
Mr Faigen did not give any weight to the photographs that depicted recessed nail heads. He did not consider that they indicated any damage to the integrity of the ceiling and attributed them to poor preparation for painting. Mr Faigen interpreted the photograph showing the two nails or screws with filler plugs on the end as showing fixings that had become redundant when the roof was repaired, the penetrations to the ceiling caused by those fixings being filled to conceal the holes. He considered those fixings to be redundant.
I am confident that where the expert evidence conflicts, Mr Faigen's can be preferred. He impressed me as more knowledgeable and experienced than Mr Jones, but more importantly, his hypotheses were consistent with the ceiling exhibiting no signs of damage or defect prior to its collapse and Mrs Hiew not having done any repairs.
There was no expert evidence of the incidence or frequency of catastrophic ceiling collapse in residential premises, that is, a sudden and widespread loss of adhesion causing the ceiling as a whole to fall to the floor.
Factual findings on liability
On Mr Greenslade's evidence, the ceiling collapsed suddenly and without warning in the early hours of 11 January 2015 striking him on the head. I accept that evidence.
There is little doubt that the ceiling collapse was caused by the ingress of water into the roof space that soaked the insulation making it heavier, and weakening the adhesion of the ceiling sheets to the joists to a point where the structural support of the ceiling was lost. I find on Mr Greenslade's evidence that there were extreme wet weather events in October and December 2014, associated with hail, that would explain the ingress of water.
During the 18 months of his tenancy prior to the incident in question, nothing was observed by Mr Greenslade that gave him cause to bring the state of ceiling to the attention of Mrs Hiew. He saw nothing wrong with the ceiling in the family room (ts 117). That is wholly consistent with the evidence of Mr Faigen that although the ceiling had dropped by 10 mm, it would not have been noticeable. Mr Greenslade made a number of pertinent observations of the premises when he inspected them in June 2011, including that there were plugged holes in the ceiling of the kitchen. Had there been any other sign of damage to or defect in the ceiling of the family room he is likely to have noticed it. Mr Greenslade is an experienced tradesman. His children and a granddaughter lived with him. He would not have failed to see a noticeable sagging of the ceiling or a pulling away of the cornice if that had occurred prior to the ceiling collapse.
I find that at no time prior to the ceiling collapse was there any sign that would have indicated to Mrs Hiew that the ceiling was damaged or defective. Nor was there any sign that it was in a dangerous state or in need of repair. There was no evidence of any observable water damage to the ceiling that may have signified this form of damage.
The pair of nail heads exposed by the ceiling collapse show that the ceiling was no more than 10 mm lower than its original height, being the thickness of a Gyprock sheet. That is the maximum distance from which the nails protruded from the joist. This is clearly shown by the adhesion of filler to the heads of the nails which would not have occurred if the upper side of the sheet were lower than the nail heads. Accordingly, the drop was not 15 mm as Mr Jones suggested. I accept Mr Faigen's evidence that such a deflection (10 mm) across the ceiling would not have been noticeable, as a deeper or localised sagging may have been. As I have found, it was not the case that the ceiling sheets were noticeably sagging and pulling the cornices off the walls, as Mr Jones suggested they would have been, before the collapse. The collapse was not presaged by any structural sign of a loss of integrity of the ceiling.
I accept Mr Faigen's evidence that the original ceilings in the house that he inspected were sound. I reject the suggestion by Mr Jones that the disturbed flushing around nail heads in the activity and lounge rooms have significance for the reason given by Mr Faigen. The recessed nail heads have not been shown to be more than cosmetic blemishes that would be fixed by preparation prior to repainting. They are consistent, in my view, with the ceilings not having been repainted. Mr Greenslade's evidence was, in any event, that in the family and meals areas he only noticed filled holes. These I find were redundant following an earlier repair of the ceiling. There was no evidence that the ceiling exhibited any signs of defectiveness, such as, for example, a linear pattern of 'nail pops'. If Mr Greenslade noticed the filled nail holes in the meals area, it is unlikely that he would not have noticed 'nail pops' if they appeared.
The fact that there was a linear crack in the laundry, which on the evidence was not indicative of a structural defect, does not signify that the ceilings in the premises were generally defective. There was no expert evidence to the effect that the laundry ceiling was unsound.
While Mrs Hiew had never engaged a building inspector or other expert to survey the premises for possible repair and maintenance problems, the expert evidence in this case was to the effect that a properly constructed ceiling would ordinarily not require repair or maintenance, unless a problem became evident.
There was no evidence from which it could be found that such an inspection at the time of the commencement of the tenancy would have revealed any damage or defect that would have prompted a repair of the ceiling. Accordingly, had Mrs Hiew arranged an inspection of the ceiling at that time, it is unlikely that the risk that eventuated on 11 January 2015 would have been detected, the ceiling collapse having been precipitated by the weather events described by Mr Greenslade.
I accept the evidence of Mrs Hiew that the ceiling had not been repaired to her knowledge since she bought the property. Her evidence was frank, cogent and credible. It follows that the repairs that were shown by Mr Faigen to have been done were carried out within a year or so after the house was built. That is consistent with the defects becoming apparent within a year of construction, in accordance with Mr Faigen's experience. The ceiling had dropped, probably due to poor adhesion of the sheets. (Mr Jones gave evidence of the dab adhesive 'skinning' in hot conditions as a possible cause.) It is likely that it was propped and supported by wads (straps) of plaster laid over the joists. These were not applied at regular intervals, indicating that they were a remedial measure. There was no reason for wads to be used at all, unless to remedy a problem with the ceiling. Obviously, the ceiling was not restored to its original height entirely, hence the need to fill the nail holes, at least in some places.
Mr Greenslade's evidence as to his observations was not accurate or reliable. The court was left firmly with the impression that he was attempting, by any means he could, to make a case that the ceiling had been repaired in an inadequate manner. He sought to show that the premises were generally in a poor state of maintenance, yet he raised no issues with Mrs Hiew during his initial inspection, or in the 18 months preceding the ceiling collapse. His evidence that he observed filled nail holes in the ceiling when he first inspected the property struck me as unlikely, as did his evidence that the kitchen and family room areas smelled of fresh paint. The evidence of Mrs Hiew and her husband was to the effect that the premises had not been painted before Mr Greenslade's tenancy. I accept their evidence.
I also accept their evidence that the ceiling had not been repaired by them and, specifically, I accept Mr Hiew's evidence that he did not tell Mr Greenslade that he had tried to repair the ceiling. Mr Hiew is a retired businessman who performed no handyman tasks in relation to the property owned by Mrs Hiew. I accept the evidence of Mr Hiew and Mrs Hiew. Neither of them has anything to gain by being untruthful as to these matters.
Mrs Hiew did not demonstrate a disregard for the safety of tenants as counsel for Mr Greenslade submitted. I do not find that she acted unreasonably in relation to the maintenance of the premises generally. On her own evidence and that of Ms Westwood, Mrs Hiew was responsive to requests for maintenance.
Moreover, it is not a basis for a finding of negligence in this case that she did not make a property condition report prior to the commencement of Mr Greenslade's tenancy. There is no evidence that such a report, whether done by Mrs Hiew herself, or by a property manager, would have revealed any sign of defect or damage that would have prompted an expert inspection of the ceiling at that time.
Mrs Hiew in her evidence said that if she had seen a crack in the bathroom ceiling or been informed one she would have had the ceiling inspected. I accept her evidence in that regard. She did not see such a crack; nor was she informed of one by Mr Greenslade. At no time did she have occasion to inspect the ceiling for that reason. Of course, the premise of the question put to Mrs Hiew was mistaken. Mr Jones identified a linear ceiling crack in the laundry, not the bathroom. In the circumstances, I would interpret Mrs Hiew's evidence to mean that if she had seen such a crack anywhere she would have taken the same action. There was no cracking of the bathroom ceiling. I accept Mr Jones' evidence in this regard. This is another reason for rejecting Mr Greenslade's evidence that he saw such a crack when he inspected the property.
Mr Greenslade's evidence that Mr Hiew told him he had repaired the ceiling was dishonest. His evidence was thin and vague and lacked sufficient detail to give it any cogency. He may have seen a tin of paint and a silicone gun in the shed, but it was not put to Mrs Hiew and her husband that they knew of those items, or that they suggested recent repair of the ceiling contrary to their evidence.
Mr Greenslade was also inaccurate and unreliable in relation to his evidence of observing the kitchen and bathroom cabinets to be rotted. I accept, however, that they were probably loose and worn due to age, and I accept that Mr Greenslade refixed some cabinet doors.
Mr Greenslade was not supported in material aspects of his evidence by his daughter Hayley who gave evidence that she did not notice anything of significance about the ceiling to the family room, or of smelling fresh paint when she went with her father to inspect the premises. She gave no evidence of seeing a crack in the bathroom ceiling. She did not hear any conversation between Mr Hiew and her father on the morning of the incident although she was present. Her evidence, however, did tend to support Mr Greenslade's evidence that he was struck by the falling ceiling as when she saw him at about 7.00 am on the day of the incident he was covered in dust and she observed blood coming out of his ears.
Mr Greenslade's evidence as to his observations of the ceiling after the ceiling collapsed corresponds with what is depicted in the photographs. It is not apparent from the photographs that the ceiling fixings were covered by silicone as opposed to some form of compatible filler, as one would expect. I reject his evidence that he was told by a representative of the insurer by telephone that the ceiling would not be repaired unless he reported that the ceiling appeared to be in good condition prior to the collapse. Mr Greenslade's attempt to distance himself from that statement by suggesting that he was put upon to make it by the insurer is not plausible. When later pressing Mrs Hiew's insurer for compensation, Mr Greenslade stated that he saw nothing wrong with the ceiling prior to its collapse. His email of 16 February 2015 at 4.18 pm is a significant admission. Whether it was sent by him, or by his daughter on his behalf, the statement was correct.
It is also significant in this respect that when Mr Greenslade was asked by the insurer his reason for holding her at fault, he did not suggest that the ceiling was defective. I appreciate, of course, that Mr Greenslade is not a lawyer and would not be expected to know whether the liability of his lessor was in the nature of strict liability or fault based, but it is significant that he did not say at the time that he believed Mr Hiew had repaired the ceiling inadequately as one would expect if that was what he had been told.
There was no evidence that it was common or customary for ceilings, or any other structural elements of a residential dwelling, to be inspected by a suitably qualified person prior to the commencement of a residential tenancy.
Conclusion on liability
The extent of the duty of care owed by Mrs Hiew to Mr Greenslade depends on all the circumstances of the case.
Counsel for Mr Greenslade submitted that Mrs Hiew had notice of defects in the ceiling. I have found that she did not. Counsel also submitted that Mrs Hiew was subject to a legislative requirement to make a property condition report at the commencement of the tenancy. While that is so, I have found that a property condition report made at that time would not have revealed any defects that warranted an expert inspection. I am not satisfied that there are any special circumstances that would have created, in this case, an affirmative duty to inspect the ceiling at the inception of the tenancy, or any time prior to the ceiling collapse, noting in particular that the premises were just over 20 years old at the time of the incident.
In summary, the ceiling collapsed without having presaged any observable sign of damage or defect. It collapsed due to water damage likely to have been initiated, or exacerbated, by weather events in October and December 2014.
There is no evidence that had the ceiling been inspected at the commencement of the tenancy in June 2013, any defect or damage would have been detected. Nothing was brought to Mrs Hiew's attention during the course of the tenancy that would have placed her under a duty to inspect the ceiling. No repairs to the ceiling were negligently carried out by Mr Hiew or anyone else.
No breach of duty has been established on either of the bases advanced by Mr Greenslade. Accordingly, the claim must be dismissed.
Quantum
It is appropriate to make a provisional assessment.
The amended statement of claim in par 7 pleads numerous physical and psychological injuries and symptoms a consequence of the plaintiff being struck by the ceiling when it collapsed. The physical injuries relate mainly to a neck injury and associated injuries to the left shoulder resulting in neurological symptoms in the left arm. The psychological sequelae are said to be major depressive disorder, post-traumatic stress disorder and adjustment disorder associated with anxiety, panic attacks, suicidal ideation, self-harm and sleep disturbance. Addiction to pain relief medication is not pleaded.
As a consequence of these injuries, Mr Greenslade is said to have suffered ongoing physical and psychological disabilities that have rendered him unfit for work as a boilermaker and any alternative work for which he would be suited by virtue of his education, training and experience, and restricted his ability to perform domestic tasks and engage in social activity. There is a claim for economic loss in the form of past and future loss of earning capacity, past and future domestic services and past and future medical treatment.
For the purposes of assessing the quantum of Mr Greenslade's loss, I find that he was struck on the head by the falling ceiling on 11 January 2015 and that he injured his neck, causing an impingement of the C6 nerve root. This was indicated by a CT scan in February 2015 and subsequently diagnosed by Dr Richard Vaughan, orthopaedic consultant, in the course of a medico‑legal examination April 2015. Dr Vaughan recommended surgery, but this did not take place until October 2016. The surgery was expected to decompress the C6 nerve, thereby relieving neurological symptoms in the left upper limb. The surgeon, Mr Arul Bala, was not called as a witness.
Mr Greenslade did not improve after surgery and continued to complain of pain. He was referred to the Sir Charles Gairdner Hospital pain management department where he was treated by Dr Michael Veltman who administered facet joint injections and epidural nerve blocks on a number of occasions, and prescribed analgesic and other medication. He was reviewed for medico-legal purposes by Dr John Ker, rehabilitation physician, and Dr Peter Silbert, neurologist. He was also examined by Dr Frederick Ng, psychiatrist.
According to Mr Greenslade, he has had no sustained symptomatic relief and has remained in a state of chronic pain and disability, associated with chronic depression which was a pre-existing condition. The general consensus of medical opinion (Dr Ker, Dr Veltman and Dr Silbert) supports the conclusion that Mr Greenslade's complaints of pain in his neck and left upper limb are of neuropathic origin that can be possibly explained by some form of neural damage that was caused prior to or as a consequence of the decompression procedure performed by Mr Bala.
The defendant's position is that Mr Greenslade's claim lacks credibility, that his complaints of pain to his doctors have enabled him to obtain large amounts of prescribed pain relief medication to which he has been addicted, and that he has exaggerated his symptoms, on which the medical diagnoses depend, to promote an unmerited claim for damages. It is also contended that he has dishonestly represented his symptoms and disabilities to his doctors, and to the court.
The defendant disputes the nature and extent of the alleged injuries and contends that the plaintiff has not been disabled or incapacitated for gainful work. The defendant contends that Mr Greenslade's pre‑2015 medical history of chronic drug dependency and mental illness shows that these conditions were pre-existing and have continued to affect him. The defence also raises the issue of Mr Greenslade's honesty, pointing to a criminal record of fraud offences in 1993, and his admitted 'doctor shopping' since the ceiling incident to obtain excessive amounts of pregabalin (Lyrica) to which he is addicted.
The defence also relies on video surveillance material obtained whilst Mr Greenslade was being covertly observed in 2018, before and after he underwent facet joint injections by Dr Veltman in May 2018. The video material is said to indicate a greater range of movement in the neck, back and upper arm than Mr Greenslade has demonstrated to his doctors and the court. The absence of wasting of the left shoulder girdle and left arm musculature is also relied upon to challenge the veracity of the claim.
The issues in the quantum assessment are focused on the honesty of Mr Greenslade and the reliability of the medical evidence. I propose to set out an overview of the evidence. It is not a complete summary.
Plaintiff's evidence
Prior history
Mr Greenslade was born in Hong Kong and raised in England until his family migrated to Perth in 1981. He was then 13. He left school after completing Year 10 and worked at Woolworths before obtaining a welding apprenticeship.
He completed his apprenticeship at Ryad Engineering, qualifying as a boilermaker/welder. He then worked at a firm called Midland Exhausts.
Mr Greenslade was married in 1991. He had four daughters from the marriage which ended in 2005.
In 1992 he suffered a back injury at work. He developed a chronic pain state. He underwent facet joint blocks in 1998 and rhizotomies in 1998 and 1999. While recovering from his back injury he developed depression for which he was treated at Royal Perth Hospital from 1994. He also became addicted to analgesic medication (Digesic) and was placed on a methadone programme.
Mr Greenslade said that he recovered from his back injury with the help of physiotherapy and gym work. He admitted that he had become depressed as a result of his back injury and had been prescribed Effexor that he was still taking at the time of the ceiling incident. Mr Greenslade said he was able to get off methadone himself by reducing the dose over a period of three months. He said he stopped using methadone in 2001.
He settled his workers' compensation claim in 2000. Before returning to work he obtained a fork lift ticket and a certificate in warehousing. He obtained work as a boilermaker/welder with a firm called Fastrak Engineering. In 2006 he started work for P & H MinePro Australasia Pty Ltd (later called Joy Global). He worked there until 2013 when he was made redundant because the firm moved its operations to New South Wales.
He then worked as a contractor for Fastrak Engineering before obtaining work with Tasman Structural Engineering building metal frames for construction. He worked there for about eight months before the business closed down. He then did contracting until obtaining a job at Eilbeck Cranes in 2014 as a boilermaker. He said he had been working for Eilbeck Cranes for about four months before the ceiling incident.
In cross-examination, Mr Greenslade acknowledged a problem with alcohol, admitting drink driving convictions in 1987 and 2006, and alcohol‑related incidents at licensed premises. He also acknowledged a number of domestic altercations that occurred when he was intoxicated. There was an incident in 2001 when he was admitted to Joondalup Health Campus after his wife had found him unconscious on the floor of a friend's house. He said that on that occasion he was taking Methadone 100 mg per day. He admitted having attempted suicide by overdosing on Methadone.
In June 2006 he attended Joondalup Health Campus having broken a bone in his left hand. In August 2006 he presented at Royal Perth Hospital after a dirt bike accident. At that time he admitted that he was depressed. He said he was traumatised by his wife leaving him. He was also suffering from financial stress. In 2006 he saw a psychiatrist and was prescribed Effexor.
Mr Greenslade admitted that on 25 March 2008 he was seen at Joondalup Health Campus with pain in his chest and back following a physical altercation at the Casino three nights before. He agreed that he suffered an injury to his right middle finger in 2008 and had time off work for which he received workers' compensation. He saw Mr Barrie Slinger, orthopaedic surgeon, at that time. His finger injury affected his work, requiring him to avoid welding and other tasks requiring heavy manual labour. He was assessed as having a 33% permanent loss of function in his middle finger (exhibit D1). He had been restricted in some activities, but was able to continue in employment after a short period on workers' compensation.
Mr Greenslade acknowledged that in 2010 he was admitted to Joondalup Health Campus having fallen over and struck his head after drinking alcohol. At that time, however, said that he felt 'pretty good' in that he was employed and was seeing his children, yet he remained depressed. Mr Greenslade acknowledged that he had been drinking heavily when he had an altercation at the Merriwa Tavern in October 2010. He acknowledged also that in February 2011 he was referred to a psychologist, but did not attend. Again, in January 2012 he was referred for psychology, but did not attend. He acknowledged that in September 2012 he told his general practitioner that he was under a lot of stress due to issues with his children and working long hours on night shift. He was still experiencing depression and suicidality in 2012 and 2013. In 2014 he was continued to be significantly depressed, but was not suicidal. He experienced financial difficulty following his redundancy from Joy Global in 2013.
Mr Greenslade admitted that he had lost his driver's licence on a number of occasions, the last time being in 2012 when he was convicted of refusing a breath test and obstructing police officers. He subsequently obtained an extraordinary driver's licence (EDL). On 9 January 2013 he was convicted of driving contrary to the conditions of his EDL. He was convicted of the same offence in December 2013. His EDL was cancelled. In March 2014 he was convicted of driving whilst under disqualification and disqualified for a period of nine months cumulative upon previous disqualification periods.
Post-ceiling incident history
As noted previously in these reasons, Mr Greenslade gave evidence that when he was struck on the head by the ceiling, he experienced pain all over his body. He said his ears were ringing and he could see glowing in front of his eyes. He felt tingling in his back and down his left arm and in had pain in his back. He said that his ears were bleeding and that there were cuts on his fingers.
Mr Greenslade was seen at the Emergency Department of the Joondalup Health Campus between 9.00 am and 9.30 am on the date of the incident. Mr Greenslade's evidence was that at the time of the ceiling incident he was taking 150 mg per day of Effexor, an anti‑depressant medication. He had been taking that dose since 1992.
He then consulted his general practitioner, Dr Fazal Shabudin, on 19 January 2015. He was referred for a CT scan. Dr Shabudin completed a Centrelink medical certificate.
Mr Greenslade admitted claiming Centrelink benefits without disclosing that he was entitled to income protection for which he was insured through his superannuation fund by TAL Life (TAL). He was subsequently required to repay Centrelink.
Mr Greenslade was referred in January 2016 to the Neurology Department of Sir Charles Gairdner Hospital. He underwent a left cervical foraminotomy at Joondalup Health Campus on 22 October 2016. The surgeon, Mr Arul Bala, was not called to give evidence and there are no written reports of the outcome of surgery by him in evidence, although there is a CT report addressed to Mr Bala dated 17 June 2019 (exhibit P1, page 142A).
He also received physiotherapy at Joondalup Health Campus and did hydrotherapy at Joondalup Arena. He also did exercises at home. At the date of trial, Mr Greenslade said he was taking 900 mg of Lyrica (pregabalin) daily for nerve pain in his neck, left shoulder and arm, 5 mg of Diazepam for anxiety and panic attacks, and Reboxetine for depression. He had had three lots of facet joint and epidural injections, the most recent in July 2019. He said the nerve pain was constant. It went to his thumb and index finger. (The medical evidence was that thumb and index finger are supplied by the C6 nerve.)
At the time of trial, he said he was unable to work at all and unable to do recreational activities, including surfing and bike riding. He could not play basketball or tennis. He relied on his children to help him with domestic tasks including cleaning, shopping and cooking.
Mr Greenslade said he was assisted by his daughter Hayley approximately once a week, and his daughter Melissa less frequently. Hayley helped him to do shopping. He said this was because he could not drive. He said he did not feel confident enough to drive because of 'nerve shock when I move my neck and my left arm'. Mr Greenslade said that he stopped driving when he hurt his neck.
He needed help changing his bed because he could not pull the sheets over the mattress. He said his daughter did his laundry washing and his dishes and they vacuumed and dusted. He was living in a small studio apartment. No gardening was required. He could not hang his own washing because it caused neck pain and he could not lift his left arm. Before he was injured he said he could do these tasks by himself. He said that Hayley visited him four to five hours per week. Melissa came on weekends. He said he was reliant on his daughters for financial assistance also. Prior to the incident he said that everything was 'running like clockwork'. He said he was having fun and did not need any help from anyone.
He described a rather unusual movement of what he called 'crouching' that involved raising his shoulders. He demonstrated a shrugged posture. He said that made his neck feel more comfortable. He said when his neck was not supported he would get 'nerve shock' that went down his shoulder and left arm. He kept his left arm in a protected position across his abdomen. It was noticeable at all times during his evidence that he would avoid using his left arm.
Mr Greenslade gave evidence that a dental appliance that he was wearing broke when the ceiling collapse occurred, but he had not had it repaired. It has not been pleaded as a loss caused by the incident in question.
In cross-examination, when he was asked about the aftermath of the ceiling incident, he insisted that he lost consciousness when the ceiling hit his head even though the history given to the Joondalup Emergency Department was no loss of consciousness. In re‑examination, the triage/nursing assessment notes were tendered which indicated uncertainty about loss of consciousness: 'hit on head central by falling plaster about 0330 this am. ? LOC. Hit nose onto floor. Saw stars but unsure if LOC'. The notes were, strictly speaking, not admissible, but no objection was made.
Mr Greenslade agreed that he saw Mr and Mrs Hiew before he went to the hospital. He was initially concerned to get the ceiling fixed. Later he sought compensation for loss of income. He agreed that he received sickness benefits from Centrelink from 19 January 2015. He was questioned why he sought a sickness benefit and made a claim on his income protection policy when he was expecting to return to work. He rejected the suggestion that he had no intention of returning to work after the ceiling incident.
He agreed that before his surgery in October 2016, his neck condition was worse than it was afterwards, but he continued to have nerve shocks in his left arm. Mr Greenslade said that he had improvement in his neck and left arm for a period of about three months, but from early 2017 his condition had worsened, leading to him having facet joint injections and epidural blocks.
In March 2017, his TAL income protection ran out. Later that year he changed his general practitioner, because, he said, Dr Shabudin stopped bulk billing. He started seeing Dr Iain Russell in November 2017. Mr Greenslade admitted being addicted to Lyrica and visiting multiple general practitioners other than Dr Shabudin and Dr Russell in order to obtain prescriptions. In fact, he admitted to attending medical practitioners on dozens of occasions to obtain Lyrica. He said he would tell the doctor that he had run out of Lyrica and required a new prescription.
A facet joint injection by Dr Veltman in May 2018 gave him some relief for a period of three months. Asked what his problems were in July 2018, he said 'apart from my neck, back and shoulder, my arm and being addicted to Lyrica'. He said at that time he was still having to hold his left arm against his body and to maintain the shrugged position that he indicated in court. He said that even though he had good results from the injection, he still had to hold his arm against his body to avoid getting what he described as nerve shocks. He explained that these were similar to a shock from a spark plug.
Mr Greenslade was then shown some video surveillance material captured on 26 January 2018 that showed him walking with a shopping bag in his right arm and swinging his left arm freely, not holding it close to his body as he did constantly in court. He exhibited full neck movements and there was no sign of discomfort or restriction evident.
In the video captured on 20 July 2018, he was holding a bag and bottle in his left hand. His left arm was bent at the elbow to 90 degrees. He appeared relaxed. He extended the arm without apparent difficulty. He was walking and there was no evident limitation of neck movement. He opened and closed a car door with his left hand. He was seen shopping in a supermarket. He was able to use both hands to bag fruit and to hold his shopping while in a queue for the cashier. Outside, he was seen to raise his left hand to his mouth to smoke. He bent over freely to pick up cigarette butts and used both hands to manipulate items he was carrying. His neck movements appeared to be full in flexion and rotation. He walked for a significant time with items held in his left hand. He did not move the items to his right hand, as one would expect if his left hand was symptomatic. When he did move items to his right hand he swung his left hand and arm. He smoked using his left hand and raising his arm. He was able to look up and down.
I find that Mr Greenslade as a result of the ceiling falling on his head suffered a compression type injury that precipitated symptoms emanating from the C6 nerve root that radiated from the spine to the left shoulder, arm and hand. The injury rendered symptomatic an impingement of the C6 nerve on the left caused by foraminal stenosis (narrowing), a pre‑existing condition that was progressive and would, on balance, according to Dr Silbert, have become symptomatic in any event within 5 - 10 years of the date of the ceiling incident.
Dr Vaughan considered as early as June 2015 that Mr Greenslade was in urgent need of surgery to decompress the C6 nerve. He feared that that at that time if surgery was not performed then damage to the nerve could occur. That is in fact what appears to have occurred. Mr Greenslade did not come to surgery until October 2016. While the foraminotomy by Dr Bala was clinically successful, in that subsequent scans showed an adequate widening of the foramen, Mr Greenslade's symptoms were not totally ameliorated as expected.
As I have observed, Dr Ker, Dr Veltman and Dr Silbert are all of the opinion that ongoing radicular symptoms, following what appears to have been a successful decompression procedure, can be explained by damage to the nerve due to the chronicity of the compression prior to surgery. So, while there is no apparent structural cause for radicular symptoms that would otherwise be associated with the nerve impingement, those medical witnesses do not exclude an alternative explanation.
Even having noted the significant discrepancies between Mr Greenslade's clinical presentation and the absence of any left upper limb wasting, as well as the conspicuous inconsistency between Mr Greenslade's movements as depicted in the covert surveillance material and his presentation on examination, Dr Silbert was prepared to accept that he had residual radicular symptoms.
Dr Ker pointed out that further investigations could have been carried out that may have demonstrated actual neural damage. He noted that there had been no imaging of the C6 nerve itself and there had been no electrophysiological tests done. There is no objective evidence, therefore, to prove the extent to which the C6 nerve has been compromised.
The medical evidence supports a finding that Mr Greenslade, despite the compression of the left C6 nerve in October 2016 has been left with residual radicular symptoms in the form of pain extending through the shoulder and down the arm into the hand with associated paraesthesia affecting the fingers in the C6 distribution, being the thumb and index finger, crossing over to the C7 and C8 distributions and affecting the remaining fingers.
Mr Greenslade's symptoms and disabilities, however, though chronic, are not as grave as he has portrayed them to his doctors or to the court. The musculature in the shoulder girdle and left arm is not consistent with the disuse of the left arm that he has sought to demonstrate by constantly holding his left arm across his abdomen and shrugging his shoulders as if to protect it.
Mr Greenslade offered no explanation for the discrepancy between his presentation in court and what was depicted in the video material, except to say that his gait, as depicted in the videos, was not normal because he was attempting to protect his neck.
Having observed his gait on video surveillance footage and heard Mr Greenslade's comments on it, and as I have noted previously, I am not satisfied that he has an antalgic gait, that is, that he had altered his gait to avoid pain. I find that what Dr Veltman observed of Mr Greenslade's gait when he came into his rooms was affected, as his restricted neck and left upper limb movement was.
It is, of course, difficult to assess the extent of symptoms and disabilities due to injury where the plaintiff is not a witness of truth, for whatever reason. Mr Greenslade, in my view, has told his doctors and the court what he feels has been in his interests to say in order to promote his claim. That does not mean that there is no valid basis for a finding of injury. It just means that making findings as to the true extent of the injury and its sequelae is somewhat problematic.
Among my reasons for finding Mr Greenslade's evidence to be unreliable are the following:
1.My finding that he gave untruthful evidence in relation to his meeting with Mr and Mrs Hiew on the morning of the ceiling incident.
2.He maintained an exaggerated guarded posture in the course of giving his evidence. This posture, with which Mr Greenslade also presented to the medical examiners, was so unusual that it gave me cause for doubt, even before the surveillance video material was adduced in evidence. The video material demonstrated that when Mr Greenslade thought he was unobserved, his movements of the neck and left arm were unrestricted.
3.He gave a false account of his psychiatric history to Dr Ng.
4.He stated falsely that he gave up driving from the date of the ceiling incident due to injury, when in fact he was disqualified from driving and has been for a significant period since the date of the ceiling incident due to traffic offences and infringements.
5.He exaggerated the extent to which he is unable to attend to activities of daily living, such as dressing himself, washing himself, cooking and cleaning. In my view, having assumed a sick role, he has become dependent on his daughters to assist him in activities that he is capable of doing himself.
6.He represented restrictions of movement to Dr Shabudin who observed him, when removing clothing on a pretext, to demonstrate unrestricted arm movements.
7.No wasting of the left shoulder and arm consistent with disuse has been observed. Mr Greenslade is able to and does use his left arm.
I do not give particular weight to Mr Greenslade's fraud convictions as a young man, but it has to be said, as the defendant's counsel submitted, that they are not without significance in the total picture. The same can be said of his false representations to various doctors that were made in order to obtain excessive prescriptions of Lyrica.
The picture emerges of a person who has sought to justify himself by whatever means are available. In order to justify his fraud offences he said that his family was in need when he was off work due to a work related back injury. Yet there is no reason to suppose that he would not have been in receipt of workers' compensation payments as he gave evidence that his workers' compensation claim was ultimately settled for a lump sum.
Similarly, his 'doctor shopping' activity was justified by him on the basis that he needed pain relief. In fact, he was, I find, simply feeding an addiction as he did years before when he became hooked on analgesic medication while being treated for his back injury. I do not accept Dr Veltman's view that he consumed medication to excess in order to relieve his pain. Dr Veltman is an experienced pain management specialist, but in my view is in no better position than the court to draw inferences as to Mr Greenslade's motivation for consuming excessive quantities of Lyrica. I do not accept that his pain state was so severe that it drove him to take as much Lyrica as he could get his hands on. Rather, I find that he has exaggerated his symptoms to his doctors in order to justify increased dosages of Lyrica.
I find that there is no satisfactory evidence to support a finding that Mr Greenslade suffered any psychiatric or psychological disorder as a result of the ceiling collapse incident, or the physical injuries caused by it. Mr Greenslade did not give evidence of the symptoms of post-traumatic stress disorder on which Dr Ng based his diagnosis of that condition. Sadly, Mr Greenslade had a long history of substance abuse and mental health problems. Mr Greenslade has been afflicted by depression for a long time. It was not caused by the injuries he suffered in the ceiling collapse, but it has impacted on his ability to cope with his symptoms. The defendant takes the victim as he finds him. I accept on the basis of Dr Silbert's evidence, and the evidence as a whole, that Mr Greenslade experienced an exacerbation of his longstanding depression, consistent with chronic pain.
It is likely that his pre-existing mental illness increased his susceptibility to chronic pain. That said, the history given to Dr Ng has been shown to be untrue. The accuracy of his history was critical to Dr Ng's diagnosis of post‑traumatic stress disorder. As Dr Ng's opinion as to the effects of the incident was based on an incorrect history, and symptoms of which Mr Greenslade gave no evidence, I am unable to give it any weight.
Otherwise, I am satisfied on the evidence that Mr Greenslade suffered an injury to his right ear that caused bleeding. According to the clinical records of Dr Shabudin there was no damage to the ear drum. I accept that he suffered headaches for a period of time.
Provisional assessment of damages
Plaintiff's claim
Prior to his closing address, counsel for Mr Greenslade handed up amended particulars of damages dated 10 November 2019. This document revised the particulars that had been filed and served prior to trial and formed the basis of counsel's submissions on quantum.
With respect to loss of earning capacity it was submitted that Mr Greenslade should be found to have been totally incapacitated for work as a boilermaker/welder from the time of the ceiling incident.
Counsel explained his questionable posture as 'guarding' or demonstrative behaviour for which there were mixed psychological and physical reasons. It was submitted that his presenting in a disabled manner did not demonstrate a conscious desire to exaggerate his claim.
It was conceded, on the basis of the evidence as a whole, that Mr Greenslade had 'a real chance' of being able to exercise his retained earning capacity 'provided the right adjustments and supportive transitions can be encouraged over the next 12 months or so'. Counsel suggested that Mr Greenslade's prospects of re‑employment would be improved by him losing weight, accessing professional rehabilitation services, muscle strengthening, making a gradual return to work, periodic pain relief injections, careful management of his medication regime and psychotherapy.
Counsel observed that for a number of years prior to 30 June 2014, Mr Greenslade's annual earnings averaged $91,720 gross. This represented a net weekly wage of $1,343. However, the actual calculations that were submitted were premised on the more modest weekly earnings of Mr Greenslade at Eilbeck Cranes of $978.77 net.
The claim for future loss was based on total loss of capacity for 12 months at the higher rate of $1,343 net per week, thereafter, on the basis of a 50% loss of pre‑accident capacity for five years, beyond which no loss was claimed.
Counsel pointed out that this assessment represented a future loss of 20.6% of Mr Greenslade's earning capacity as a boilermaker to age 67. It was argued on his behalf that this was a conservative estimation. Clearly, it took into account the opinion of Dr Silbert that Mr Greenslade's earning capacity as a boilermaker/welder was likely to be compromised by the progress of his pre‑existing degenerative spinal disease as well as other evidence that refuted Mr Greenslade's original contention that he was totally and permanently incapacitated.
Damages for past travel expenses were claimed on a global basis in the sum of $2,000. No schedule of journeys made or kilometrage was provided. Nor was a rate specified.
For past gratuitous services provided by his daughters, Melissa and Hayley, a claim was made for three hours per week at $36 per hour for 255 weeks to the date of trial.
Future medical expenses were claimed globally: $10,000 for psychotherapy and medication for Mr Greenslade's psychiatric condition, $25,000 for rehabilitation and $15,000 for pain relief medication and therapy, a total of $50,000.
For future travel expenses the plaintiff claimed a global sum of $2,000; for future services, $24,408, being three hours per week for the next five years.
On behalf of the defendant it was submitted that Mr Greenslade was not a credible witness. The court could not be satisfied that he had been truthful about the level of his symptoms and the effect of his symptoms on his day‑to‑day functioning, including his capacity to work and his claimed need for domestic and other services.
The defendant submitted that the court could have no confidence in Mr Greenslade's assertions of incapacity following the decompression surgery he underwent in October 2016, observing that after early reports of improvement, as expected, Mr Greenslade's subjective symptoms and disabilities worsened for no apparent reason.
The defendant submitted that it could not be assumed that had the ceiling incident not occurred, Mr Greenslade would have worked continuously as a boilermaker for an indefinite period. He was likely to be compromised in his working capacity by his pre‑existing physical and psychiatric conditions, and, over a period of time, by his progressive spinal degeneration. No concessions were made with respect to the claimed need for past and future services or future medical treatment and travelling. For past travelling a modest allowance was conceded.
Past loss of earning capacity
For the purpose of assessing the quantum of Mr Greenslade's loss I accept that the cervical injury caused by the ceiling falling on his head rendered him totally incapacitated for his work as a boilermaker and that he remains unfit for unrestricted work in that role.
I also find, on the basis of Dr Silbert's uncontested opinion, that Mr Greenslade was likely to come to a foraminotomy within 5 ‑ 10 years of the ceiling incident due to the progression of degenerative changes in his cervical spine.
Despite my adverse findings as to Mr Greenslade's credibility, based on the evidence of Dr Silbert, who took full account of the inconsistencies he observed in his presentation and the lack of wasting of the left upper limb, his incapacity continued until at least some time after his convalescence from the surgery he underwent on 22 October 2016 for decompression of the C6 nerve root.
At the time of the ceiling collapse he was working at Eilbeck Cranes earning $978.77 per week net. His average gross income and that time was $1,246.77. His employer superannuation contributions at 9.5% would have been $112.21 gross, $95.38 net (after the conventional 15% deduction for tax and fund management). His employment ceased on 31 January 2015, so past loss should be calculated from 1 February 2015.
I am satisfied, on the balance of probabilities, that Mr Greenslade was totally incapacitated for work for a period of at least two years from the date of the ceiling incident. The clinical records of his general practitioner, Dr Shabudin, indicate that he was reporting significant improvement in January 2017 from the surgery he underwent on 22 October 2016. On 17 January 2017 Mr Greenslade reported that his left arm moved better and had more power, that his neck was not as painful and stiff, that he was getting less numbness and pain and that he could do all activities of daily living. His upper limb strength was four out of five. Dr Shabudin thought that Mr Greenslade should remain off work until the end of February 2017. This recovery was in accordance with Dr Shabudin's expectation. Whilst Dr Shabudin was not of the opinion at that time that Mr Greenslade was fit for boilermaking, he thought that he should be able to get back to some form of work. It is not without significance that Mr Greenslade's income protection payments came to an end in March 2017. I am not persuaded, on balance, that Mr Greenslade has been totally incapacitated since February 2017.
Implicit in my finding is a rejection of the opinion of Dr Ker, Dr Veltman and Dr Russell as to the earning capacity of Mr Greenslade. Those opinions are displaced by my adverse findings as to the reliability of Mr Greenslade's presentations to those doctors.
In my view it would be reasonable to allow past loss at the rate of his net weekly income at Eilbeck Cranes from 1 February 2015 to 30 May 2017, allowing some further period for a graduated return to work and the likely delay in obtaining suitable alternative employment after a prolonged period off work. That is a period of 28 months or 120.4 weeks. At $978.77 per week net, his loss is $117,844.
Assuming that his gross weekly income was entirely ordinary time earnings, I would calculate superannuation as follows:
$1,246.77 x 9.5% - 15% x 120.4 = $12,121. (The reduction of 15% is made for taxation and fund management.)
From 1 June 2017 to 30 August 2020, a period of about 193 weeks, I find that Mr Greenslade had a capacity to work at least part‑time in a position to which he was suited or had training. I take into account that, as well as having a trade qualification as a boilermaker/welder, Mr Greenslade had obtained the qualifications set out in [175]. I make this finding on the basis that I am not satisfied that Mr Greenslade was truthful as to his symptoms and disabilities during this period. I find that he misled his medical examiners by affecting a disabled posture and exaggerating his symptoms. Underpinning this finding is the evidence that there was no significant wasting of Mr Greenslade's left upper limb consistent with the disability that he complained of.
Doing the best I can, I would credit Mr Greenslade with a retained capacity to earn at least 40% of what he earned as a boilermaker at Eilbeck Cranes. Based, therefore, on a 60% loss of capacity for this period I would allow $587 net per week for 193 weeks, total $113,291.
I would allow superannuation on the same basis, that is, 193 weeks at $60.40, total $11,045.
Total past loss is therefore:
1 February 2015 - 30 May 2017 Earnings $117,844 Superannuation $12,121 1 June 2017 - 30 August 2020 Earnings $113,291 Superannuation $11,045 Total $254,301
Interest is allowed as follows:
$129,965 x 3% x 2.33 years = $9,085
$129,965 x 6% x 3.25 years = $25,343
$124,336 x 3% x 3.25 years = $12,123
The total interest allowance on past loss of earning capacity is $46,551.
Future loss of earning capacity
Mr Greenslade's closing submissions advance a claim for future loss of earning capacity for a period of six years. I consider this period is reasonable having regard to the likelihood that he would become incapacitated for his pre‑accident work. In any event, he is likely he will progress, as he did following his lower back injury in 1992, to recover to a sufficient extent to be able to do suitable alternative work on a full‑time basis.
The 6% multiplier for six years is 264. At $587 net per week, future loss of earning capacity is assessed at $154,968, say, $155,000. Loss of superannuation on the same basis would be $16,006, say, $16,000. I would therefore allow future loss of earning capacity in the total sum of $171,000.
The usual vicissitudes of life have been taken into account by the rate and period of future loss. No further reduction is indicated.
Past travelling expenses
Although this claim has not been itemised and is made on a global basis, the defendant concedes that if damages are awarded, some allowance should be made. The sum claimed represents about $360 per annum over the last five and a half years. In my view, as a matter of impression, $2,000 inclusive of interest would be a reasonable allowance.
Future travelling expenses
I make no discrete allowance for future travelling expenses. I am unable to find, being doubtful of the veracity of Mr Greenslade, that he is likely to incur significant expenses for travelling as any future treatment referable to his accident injuries will overlap with the treatment that he would have required had he not been injured. In my assessment this item will be subsumed in the allowance for future treatment.
Past services
I find that Mr Greenslade has established that as a result of his cervical injury he required the assistance of his daughters in various domestic and personal tasks, but this need has only been demonstrated up to the point where Dr Shabudin found that he was able to do all activities of daily living (January 2017).
For a period of two years (104 weeks), I will allow two hours assistance at the rate claimed of $36 per hour (which is not disputed). This comes to $7,560. That amount exceeds Amount B for the purposes of s 13(3) of the Civil Liability Act 2002 (WA) and can therefore be awarded. Interest on that sum at 3% for two years and 6% for three years and nine months is $2,154. I would round up this allowance, including interest, to $10,000.
Future services
I am not satisfied on the evidence that Mr Greenslade requires any assistance in terms of personal care, or that his domestic situation is one where he is likely to require, by reason of any residual symptoms from his cervical injury, domestic services, certainly not to a greater degree than he would have in any event. No allowance for future services is warranted.
Future treatment expenses
The claim is extravagant. I do not find that Mr Greenslade requires, as a result of the ceiling incident, any psychiatric treatment. I do not accept the diagnosis of post‑traumatic stress disorder. To the extent that Mr Greenslade may continue to experience symptoms of depression, I consider that by this time, that is, over five years after the ceiling incident, it is not possible to find, on balance, that any ongoing need for psychiatric treatment is accident-caused.
There is no evidence before the court as to the cost of rehabilitation. In any event, I do not consider that Mr Greenslade requires managed rehabilitation. I do not find that his residual problems are so significant that he is unable by self-help to improve his functional capacity.
I do consider that some allowance should be made for ongoing pain management, but on the evidence as it stands, this can only be as a matter of impression. I would allow, globally, $10,000 to cover general practitioner consultations, specialist pain management reviews and medications, and incidental costs such as travel and parking expenses.
Non-pecuniary loss
For the reasons that I have previously given, this head of damage is difficult to assess. Mr Greenslade has adopted a sick role. I do not accept that he has done so unconsciously, but I do accept that he has had residual symptoms of his C6 nerve compression injury. Having regard to the opinion of Dr Silbert, his neck was likely to become symptomatic in any event. In a case such as this, the assessment of damages for non‑pecuniary loss is a matter of impression, the evidence not permitting any detailed findings of the extent to which the injuries in question have caused the plaintiff to experience pain, suffering and loss of enjoyment of life. My assessment is 75,000.
Section 10(3) of the Civil Liability Act applies. Amount A is $22,500 and Amount C is $65,500. As the allowance exceeds Amount C, it is not liable to be reduced.
Summary
In summary, my provisional assessment of damages is as follows.
Past loss of earning capacity $254,301 Interest thereon $46,551 Future loss of earning capacity $171,000 Past travelling expenses $2,000 Past services and interest $10,000 Future treatment $10,000 Non-pecuniary loss $75,000 Total $568,852
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Staude31 AUGUST 2020
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