Grimes v Grimes
[2010] WADC 137
•17 SEPTEMBER 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GRIMES -v- GRIMES [2010] WADC 137
CORAM: GOETZE DCJ
HEARD: 14-18 & 21 JUNE 2010
DELIVERED : 17 SEPTEMBER 2010
FILE NO/S: CIV 264 of 2008
BETWEEN: MARK PETER GRIMES
Plaintiff
AND
RAYMOND JOHN GRIMES
First defendantJUDITH GRIMES
Second defendant
Catchwords:
Fall from a ladder resting against a palm - Negligence and occupier's liability - Liability denied - Assessment of damages - Turns on own facts
Legislation:
Civil Liability Act 2002
Occupiers' Liability Act 1985
Result:
Claim dismissed
Representation:
Counsel:
Plaintiff: Mr D M Bruns
First defendant : Mr M J Hawkins
Second defendant : Mr M J Hawkins
Solicitors:
Plaintiff: Separovic & Associates
First defendant : Talbot Olivier
Second defendant : Talbot Olivier
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Husher v Husher (1999) 197 CLR 138
Ingrilli v De Sales, unreported; FCt SCt of WA; Library No 980596; 14 October 1998
Kerr v Minister for Health [2009] WASCA 32
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Mastaglia v Burns (2006) 32 WAR 427
Naumovski v Fudge (2005) 40 SR (WA) 38
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Public Transport Commission (NSW) v Perry (1976‑1977) 137 CLR 107
Road and Traffic Authority of New South Wales v Dederer [2007] HCA 42
Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Limited [2009] NSWCA 263
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Southern Properties (WA) Pty Ltd Execuive Director of the Department of Conservation and Land Management [No 2] [2010] WASC 45
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Tame v New South Wales (2002) 211 CLR 317
The Council of the Shire of Wyong v Shirt & Ors (1979-1980) 146 CLR 40
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Wensink v Marshall [2010] WASCA 117
GOETZE DCJ:
Introduction
On 25 September 2005, the plaintiff Mark Grimes was severely injured when he fell from a ladder resting against a palm at the home of the defendants, being his parents, Raymond John Grimes and Judith Grimes. The fall occurred as Mr Grimes Jr attempted to inspect the gutters and roof of his parents' home.
Mr Grimes Jr alleges that Mr and Mrs Grimes Snr were negligent in the manner in which he was instructed by Mr Grimes Snr to climb the ladder. He also relies upon their occupation of the property for their liability to him.
Mr and Mrs Grimes Snr deny negligence, plead that they have defences under the Civil Liability Act 2002 ("the CLA"), allege that Mr Grimes Jr voluntarily assumed the risk of climbing the ladder and say that he was guilty of contributory negligence.
Mr and Mrs Grimes Snr also put in issue the quantum of the claim made by Mr Grimes Jr.
Mr Grimes Jr
Mr Grimes Jr was born on 9 February 1962. He left school when he was 14 years of age. After a short time labouring, he was apprenticed to Mr Grimes Snr and ultimately, he became a bricklayer.
Mr Grimes Jr is married to Rhoda Grimes.
By September 2005, Mr Grimes Jr had built up a bricklaying team comprising a large number of subcontractors. He was subcontracting to various commercial and residential builders.
Mr Grimes Jr conducted his business through a company, Starpath Investments Pty Ltd. His wife worked in the business, providing clerical and bookkeeping assistance. Prior to the accident, she was paid an income approximating that paid to Mr Grimes Jr.
Mr and Mrs Grimes Snr
Mr Grimes Snr is a retired bricklayer. On or about 23 September 2005, he and Mrs Grimes moved into their new home situated at 4 Dunnell Street, Maddington.
The move was something about which Mr Grimes Snr was "excited" ‑ T319.
Mr and Mrs Grimes Snr had invited Mr and Mrs Grimes Jr for dinner on 25 September to thank them for their assistance in moving into their new house.
The statement of claim
The statement of claim as initially filed and as amended during the trial, relevantly reads as follows with the amendments noted in the usual way.
"3.On 25 September 2005 ('the material date'), the plaintiff was visiting the premises when he was asked by the first defendant to climb a ladder placed against the palm tree in order to check the gutters of the premises.
4.The palm tree had large seed pods each weighing in excess of 20 kilograms which were liable to break away if any force was applied to them.
5.The first and second defendants were aware of the characteristics of palm trees through their having resided on properties where palm trees were growing.
6.As instructed by the first defendant, the plaintiff
was standing onclimbed to the second or third rung from the top of the ladder, heand reached out with his left hand and grabbed a frond which was attached to a fruiting pod in order to steady himself when the frond and the fruiting pod unexpectedly broke away from the palm tree resulting in the fruiting pod striking the plaintiff's left shoulder and causing him to fall from the ladder to the ground sustaining serious injury.7.The injury was the result of the defendants' negligence and breach of duty set out in s 5 of the Occupiers' Liability Act.
Particulars of negligence
7.0Instructing the plaintiff to check the gutters by a method that had not been analysed for risks.
7.1Failing to warn the plaintiff not to apply any force to the frond which attaches the fruiting pod to the palm tree due to the high risk involved in pulling the frond away from its main point of attachment to the palm tree.
7.2Positioning the ladder against the palm tree rather than against an inanimate structure such as the pergola.
7.3Failing to arrange inspection of the gutters by professionals and by use of such aids as cherry pickers.
7.4Failing to warn the plaintiff that seed pods weighed in excess of 20 kilograms."
Paragraph 7 of the statement of claim pleads "negligence and breach of the duty set out in s 5 of the Occupiers' Liability Act ("the OLA"). This really means two claims. First, ordinary common law negligence by reason of a failure to provide a safe system of inspecting the gutters and roof and secondly, pursuant to the OLA (counsel's addresses at T8 and T440). Both such claims are against both Mr and Mrs Grimes Snr.
The defence
The defence admits that Mr Grimes Jr was requested by Mr Grimes Snr to climb the ladder to inspect the gutters and that he did so. It pleads that Mr Grimes Snr stood at the base of the ladder with one foot on the lower rung holding it in position. Further, it alleges that by standing on the second top rung of the ladder, without holding onto the ladder or to the palm, Mr Grimes Jr voluntarily accepted the risk of injury from falling and which risk materialised.
It is also alleged that Mr Grimes Jr attempted to prune or trim the palm by pulling on the frond to which a fruiting seed pod was attached. It was an obvious risk to pull on a frond or to grab one to stabilise himself. Mr Grimes Jr should have been aware that the fronds would become detached.
The defendants rely on s 5F, s 5O and s 5P of the CLA to preclude recovery by Mr Grimes Jr of damages for harm in the circumstances, namely, that there was an obvious risk in respect of which there was no duty of care to warn of that risk and further, that there is no liability for harm resulting from the occurrence of something that could not have been avoided by the exercise of reasonable skill and care by Mr and Mrs Grimes Snr.
The defence also pleads that Mr Grimes Jr was guilty of contributory negligence. The factual matters relied upon in the defence allege that:
1.Mr Grimes Jr failed to hold onto the ladder or the palm or to adequately hold onto the ladder and that he climbed too high.
2.The harm sustained from falling to the ground as a result of failing to hold, or adequately hold onto, the ladder was an obvious risk to a reasonable person in the position of Mr Grimes Jr.
3.Mr Grimes Jr suffered harm as a result of attempting to prune or trim the palm by pulling on the frond to which a seed pod was attached, such that there was an obvious risk that Mr Grimes Jr would lose his balance and fall if the frond became detached from the palm. It was obviously dangerous to pull on the frond.
4.The fronds were likely to become detached if grabbed or pulled, such that it would be obviously dangerous to use one for stability whilst standing on the ladder.
5.Mr Grimes Jr was or should have been reasonably aware of the risk of the fronds becoming detached from the palm.
6.Mr Grimes Jr attempted to carry out the inspection from the ladder against the palm, being some distance from the house and gutters such that to so inspect from such distance, he would have to stand on a rung at or near the top of the ladder and in those circumstances, he would not have been able to hold on to the ladder in order to maintain balance. In this way, Mr Grimes Jr failed to place the ladder against the house itself which would have provided better viewing.
7.Mr Grimes Jr failed to exercise reasonable care for his own safety in all the circumstances.
Expert evidence and glossary of terms ‑ liability
Mr Charles Aldous‑Ball, arboricultural consultant, reported that the palm is a syagrus romanzoffiana (Queen Palm). It is a palm, not a tree.
The palm leaves are called fronds. They form from a basal woody structure that extends from the trunk to the first leaflet or segment which is called the petiole. The basal part of the petiole is expanded and clasps the trunk, often for a significant length and is known as the sheathing base, leaf base or leaf sheath. The sheathing base upon the Queen Palm is shed with the frond leaving a clean trunk.
Because the sheathing base extends out from the trunk, it is somewhat tenuously attached. It is therefore structurally weak. It can be easily pulled off if grabbed and wrenched with a downwards pressure.
The presence of a fruiting pod will not influence the failure of the frond if grabbed.
Mr Aldous‑Ball reported that an expert aware of the botanical features of a palm would not use the leaf frond with or without a fruiting pod for holding onto or for steadying oneself, due to the high risk involved in pulling the frond away from its main point of attachment.
He also reported that one should not stand so high on a ladder that there is nothing left to hold onto.
Mr Jason Royal, arboricultural consultant, reviewed the report of Mr Aldous‑Ball with which he agreed in a number of respects. He said that it was never easy to pull off a frond, but they will readily tear, with a degree of force – T285.
Mr Hugh Taylor is a consulting arborist. Unlike Mr Aldous‑Ball, who thought that clusters of fruit on the Queen Palm can weigh between 10 to 15 kilograms, Mr Taylor thought that they could weigh between 20 to 30 kilograms each. He thought the subject palm was 10 to 15 years old, unlike Mr Aldous‑Ball, who reported that it was approximately 20 years old.
Mr Taylor was of the view that it is uncommon for a fruit pod to fall in its entirety. Usually, ripe fruit falls off the pod over a period of time, but, in some cases, whole fruit pods have fallen. There will be little chance of this happening if the stalk of the fruiting pod is green. However, when the fruiting pods age, then, the stalk becomes dark brown and mottled in colour. That would be a warning sign to a trained tree surgeon that the stability of the fruiting pod was dangerous and may fail.
Owners of Queen Palms become accustomed to the maintenance requirements of those palms. They require regular maintenance, as dead fronds, old seed pod shells and fruit pods all require removal from the palm or when they fail.
Mr Taylor was of the view that inexperienced tree workers and people who do not own a Queen Palm should be told of the dangers that are associated with them. The dangers include the following:
1.The trunks are very hard and slippery. Ladders will be unstable when placed against the trunk.
2.Old frond stubs are often rotten and will break away from the trunk very easily.
3.Fronds have sharp sides and can cut hands.
4.When fronds are cut, the fibres that are extremely strong will hold to the edge and will often peel down the frond, including fronds with fruiting pods.
5.Using a ladder to reach the head of a palm is considered dangerous within the tree industry and, if possible, ladders are not used.
Mr Taylor was of the view, that, when hanging onto or using fronds for lowering during arbicultural works, the climber would only use green fronds. A fruiting pod could be expected to fail if grabbed or held. Anyone working on a Queen Palm should be told to only use green fronds for support or for use in rigging operations. Before applying full weight on a frond or fruiting pod, a good practice is to gently apply pressure to ascertain the strength and condition of that part and, if in doubt, to not use that part for support.
Mr Taylor gave evidence that, from the photograph being Exhibit 3.3, the two brown rings seen on the palm above the grey area and immediately beneath the head of the palm indicated that spathes, being shorter objects attached to the trunk, had been removed, or had fallen.
Mr Royal agreed with Mr Taylor's report which advised that, from the photographs, including Exhibit 1.1, a safer place to have positioned the ladder was the fascia board under the gutter by the front door, rather than the palm. In cross‑examination, Mr Taylor said that an alternate place to have positioned the ladder would have been against the gutters of the house, or on the house itself ‑ T108.
Evidence - the fall from the ladder
Mr and Mrs Grimes Jr had been invited to dinner on the subject occasion by Mr and Mrs Grimes Snr. Mr Grimes Snr took the opportunity to ask Mr Grimes Jr to inspect the gutters and roof of the new home.
Mr Grimes Jr said that his father was a:
"Pretty straightforward person. Doesn't normally take no for an answer; especially where we're concerned, his kids. Not that that's a bad thing. I mean he commands respect. Can be a bit volatile. But my relationship with him is – is okay. It's quite good" – T29.
The cross‑examination of Mr Grimes Snr as to his relationship with his son and climbing the ladder was as follows:
"Your sons were pretty good at helping you when you needed help?‑‑‑Yes.
And Mark – Mark would generally do what – what you asked him to do?‑‑‑Yes.
Mark wasn't all that happy about going up the ladder that day. Was that right?‑‑‑Well, that's what I've been told since. Yes. That would be about right, I suppose. Yes. As far as I can remember. Yes" – T318‑319.
The features of the scene at the front of the home of Mr and Mrs Grimes Snr were not in issue. Photographs depict those features. There were only two gutters at the front of the house. One gutter was in front of the front door and the other was at the rear of a perspex canopy adjacent to the front door. There was a palm growing near to the front door, the fronds of which were hanging over the perspex canopy adjacent to the front door. It was against this palm that the ladder was placed. The palm has since been removed, but its stump remains.
Mr Grimes Jr is 173 centimetres tall – Exhibit 7.1: report of Ms R Jodrell, occupational therapist. In evidence, he said that he thought he was 175 centimetres tall. The difference is not important.
From the report of Mr W J Apgar, being Exhibit 26.1, the following measurements were received without objection:
1.The height of the subject ladder is 3.82 metres. It has twelve rungs.
2.The height of the front gutter by the front door is 2.58 metres from the ground.
3.The approximate distance from the front gutter to the palm was about .8 metre.
Exhibits 3.1 and 3.3 are photographs of the ladder against the palm before the palm was removed, although those photographs were taken some nine months after the fall and the foliage on the palm was not then the same as at the date of the fall.
Exhibit 3.1 also reveals two dark lines along the roof which can be seen to the left of the first and third rungs from the top of the ladder. They can be clearly seen in that photograph which was taken from the front lawn of the home. Mr Grimes Snr was "perturbed" about those dark lines – T311.
Exhibit 3.4 is a photograph from the approximate height of the gutter at the front of the house looking across the perspex canopy to the gutter at the rear thereof.
From Exhibit 26.1, photographs 1 and 2 show the stump of the palm following its removal, with the solicitor for Mr and Mrs Grimes Snr standing thereon holding the ladder in the approximate position that it was on the occasion when Mr Grimes Jr fell from it. Photographs 3 and 4 show the front gutter from the position of a person standing on the fifth and sixth rungs from the top of that ladder which is in the same approximate position as when Mr Grimes Jr fell from it as set out in par 50 of Mr Apgar's report.
Photographs 5 and 6 show the instructing solicitor holding the ladder whilst he was still standing on the stump of the palm, but with the ladder having been moved approximately 90 degrees closer to the house.
Photographs 7 and 8 show the ladder resting against the perspex canopy adjacent to the front door and with the instructing solicitor standing on the fourth rung from the bottom of the ladder, and from which photograph it can be seen, that, in that position, a person inspecting the gutters would have vision along the front gutter in front of the front door and should also have vision of the gutter at the rear of the perspex canopy. The person would also be as close as possible to the two dark lines on the roof, unless he climbed onto the roof for a closer inspection.
Photograph 9 is another photograph of the ladder resting against the gutter in front of the front door of the home. The third top rung is approximately at the same height as the gutter.
Exhibit 1.6 is a photograph of Mrs Grimes Jr standing at the point she was at when Mr Grimes Jr fell from the ladder. Exhibit 1.7 is a photograph of a person on the ladder leaning against the subject palm before it was removed, three rungs from the top and with a blue mark on that photograph representing the approximate position of the fruiting pod which ultimately struck Mr Grimes Jr causing him to fall from the ladder. Exhibits 1.8 and 1.9 show the same person on the ladder standing three and two rungs respectively from the top of the ladder, holding onto the palm and a frond respectively. Exhibits 1.10 and 1.11 are photographs of a fruiting pod on a neighbouring palm, but not the subject palm.
The evidence did not reveal the colour of the subject fruiting pod and frond to which it was attached as at the date of the accident.
The various measurements and photographs referred to above are instructive of the task facing Mr Grimes Snr and Mr Grimes Jr on the relevant day.
Mr Grimes Jr advised his father that he was not going to climb the ladder. He was only attending his parents' home for dinner. That did not deter Mr Grimes Snr, who went to the rear shed and returned with a ladder, which he placed against the palm located near the front porch of his home.
When Mr Grimes Jr again declined to climb the ladder, Mr Grimes Snr said that he would do it himself. Mr Grimes Jr objected to him doing that because Mr Grimes Snr had had two operations during the previous year and had also fallen from the roof in his earlier home and had injured himself. Mrs Grimes Jr gave evidence that, in September 2005, Mr Grimes Snr was 74 years of age.
Mr Grimes Jr gave evidence that his father said to him " 'Well, if I'm not going up there,' he said, 'I'll send your mother up there' " – T31. Again, Mr Grimes Jr protested but, he went on to say of his father that:
"On that particular day, I mean, he just didn't want to take no for an answer really. Someone was going to go up that ladder by hook or by crook" – T31.
The evidence of Mrs Grimes Jr was that Mr Grimes Snr said:
"Well, if you're not going to go up there I'm going to send your mother up there.
And, you know, by hook or by crook, somebody was going up that ladder that day" – T114‑115.
In cross‑examination, Mr Grimes Jr disagreed with the proposition that there was no reason why he could not have said "no" to his father about climbing the ladder – T64. However, Mr Grimes Jr agreed that he was then 43 years of age, able to make his own decisions and could take care of himself – T65. He was in charge of a large number of subcontractors at his work. He was cross‑examined about risk as follows:
"Well, you know that the higher up a ladder you go, the further you have to fall, the more care you have to take for yourself?‑‑‑I'm not really experienced on ladders. I mean I just did what any son would do for their dad, you know what I mean. By the grace of God I didn’t get paralysed and he probably would have been dead" ‑ T65.
In cross‑examination, Mr Grimes Jr was asked about the positioning of the ladder as follows:
"Is there any reason why you couldn't have leaned the ladder against that left hand side of that porch or patio?‑‑‑I didn't lean the ladder anywhere.
Is there any reason why you could not have leaned the ladder, moved the ladder and leaned it against the left hand side of that porch or patio?‑‑‑Well, I didn't have any input into putting the ladder there.
So there is no reason why you could not have picked up the ladder and put it against the left hand side of the porch or patio, is there?‑‑‑Yeah, there is, because my dad put it there. It's his house, his tree. That's where he wanted it.
There is – apart from that, there is no reason why the ladder could not have been leaned on the left hand side of that porch or patio?‑‑‑I wouldn't know. I didn't check the – I didn't check anything.
Is there any reason why the ladder could not have been leaned against the fascia board below the gutter?‑‑‑Well, my dad said it was too flimsy.
What, the fascia board?‑‑‑Pardon?
The fascia board, the green painted board or the fascia, sorry, below the – the gutter?‑‑‑Well, my dad put it there and, you know, I trusted his judgment – T50.
…
Is there any reason why the ladder couldn't have been placed so that it was leaning against that board [the fascia board below the gutter]?‑‑‑Is there any reason why?
Yes?‑‑‑The reason it wasn't leaned against there, my dad said to me, was because he wanted me to look – it's got a pitched roof if you look.
Yes?‑‑‑He wanted me to look at the bit of the roofing as well. That's the reason it wasn't put there.
Do you agree if you had leaned the ladder on the fascia board you would have looked directly down into the gutter without having to climb very high?‑‑‑If you put it under – underneath the gutter?
Yes or on the gutter?‑‑‑Couldn't put it on the gutter cos it was too flimsy, wasn't it?
I don't know about that?‑‑‑Well, I don't know myself either. I've got no experience with ladders, mate, you know" – T55.
Further:
"Do you agree that it would have been far easier to prop the ladder against the left-hand wall immediately beneath that pitched roof?‑‑‑I'm not agreeing with anything. I don't know anything about ladders ‑ where to put them" – T68.
Ultimately, Mr Grimes Jr climbed the ladder. Mrs Grimes Jr said that Mr Grimes Snr put Mr Grimes Jr "under so much pressure" to do so ‑ T115.
Mr Grimes Jr gave different explanations about what he was looking to see and what he saw when he climbed the ladder. His evidence‑in‑chief was follows:
"… he wanted [me] to – to look at the gutters and he also wanted me to look at the roof. There was a pitched roof and he wanted me to look at that …" – T29.
This was followed by the following evidence:
"I got up to about five to six rungs, maybe from the top and I couldn't – I couldn't – I could see the gutters, but not ‑ not clearly and he said 'I want you to look at the roof as well and look at the back gutters, [being the gutter at the rear of the perspex canopy] go up higher' ‑ T31.
Could you see the – the gutter [being the gutter in front of the front door] to the left of the photo [Exhibit 1.14] from where you had got to on the ladder?‑‑‑No. I had to go a little bit higher" – T32.
In cross‑examination, Mr Grimes Jr was asked as follows:
"And as I understood your evidence‑in‑chief, you were able to see into that far gutter [being the gutter at the rear of the perspex canopy as shown in Exhibit 3.4] from where you were standing on the ladder?‑‑‑Yes, I was.
And you then say you had to go higher in order to attempt to look into the closer gutter, the one that's in front of the porch?‑‑‑No, I don't think so.
…
… ‑‑‑I could see both of them – T56.
Could you see into that gutter [ie, the gutter at the rear of the perspex canopy as depicted in Exhibit 1.14] that's behind the ‑ ‑ ‑?‑‑‑From the photo I – I'm looking at here? – T57.
On photograph 14, exhibit 1.14?‑‑‑Yeah. I mean, yeah, you could see into the gutter.
You could see into the gutter?‑‑‑Mm.
Goetze DCJ: What Mr Hawkins is putting to you is that when you were up on the ladder‑ ‑ ‑?‑‑‑Yeah.
‑ ‑ ‑before you fell‑ ‑ ‑?‑‑‑Yeah.
‑ ‑ ‑you could see all the gutters?‑‑‑Yeah, well, I didn't really get a chance, because it happened so quick, to look at anything, really, you know what I mean? This is what I'm – I'm trying to say to him.
Hawkins, Mr: Well, isn't it the fact that you could see the – the – the front of ‑ the – the front of the gutter but not inside the gutter, looking at the photograph 14 on exhibit 1.14? You can see the edge ‑ ‑ ‑?‑‑‑I can see ‑ ‑ ‑
‑ ‑ ‑of the tile?‑‑‑I can see, yeah, the tiles, I can see the gutter there, yeah.
Yes, but what about the inside of the gutter? You can see – do you agree that what you're looking at there at the back of the white stripe is the vertical face of the gutter, the front?‑‑‑Yes.
Not the rear of the gutter?‑‑‑No, there's not the rear of the gutter there, no.
And do you agree‑ ‑ ‑?‑‑‑But I never really got a chance to look because I was knocked off the ladder.
Do you agree that you cannot see into the gutter from there? From where you were standing on the ladder?‑‑‑Well, it's a bit of a far away shot isn't it, you know?
Is that a – photograph 14, is that an accurate representation of what you could see from where you were standing on the ladder?‑‑‑I can't really recall mate, because I was knocked off the ladder. You know, it was so quick" ‑ T58.
Further, Mr Grimes Jr was asked about the roof inspection as follows:
"What was there about the roof that you could not have seen from standing in the driveway?‑‑‑Well, you'd be too far away, wouldn't you?‑‑‑He'd only just had some tiles fixed, I think, a couple of days ago.
What was there on the roof that you couldn't see before you could see into the gutters?‑‑‑What, you're saying you can see from – from the gutters down on the ground?‑‑‑You'd better ask my dad because he's the one who asked me to go up there" ‑ T65.
…
Are you now saying that you were trying to climb high enough to see the roof that slopes from [right] to [left], on the left hand side of the house? [as seen in Exhibit 3.1]?‑‑‑Is that how it ‑ ‑ ‑I'm not – I'm not saying anything. You're saying to me that I am ‑ T66.
…
Now, which part of the roof were you attempting to look at from the ladder?‑‑‑All of the roof, whatever I could possibly see"– T66.
Mr Grimes Jr was then asked questions to clarify what part or parts of the roof he was to inspect and he said with respect to Exhibit 3.1, being a photograph of the whole of the front of the house, that his father wanted him to look at "all the roof, all the roof here" – T66. He was asked further questions about this and said that his father:
"wanted me to look there and also on the – on the top of that roof if I could see it" – T68.
The transcript continued at T68 as follows:
"Goetze DCJ: What the roof from the – above the white paint?‑‑‑Yeah, yeah, that part, yeah.
Down towards the chimney on the far left hand side?‑‑‑Yes. Yes, yes.
Hawkins, Mr: And you were attempting to see that by climbing the ladder propped against the palm tree‑‑‑Yeah.
Do you agree that it would have been far easier to prop the ladder against the left hand wall immediately beneath that pitched roof?‑‑‑I'm not agreeing with anything. I don't know anything about ladders – where to put them."
Then at T70:
"He [Mr Grimes Snr] just wanted you to get on the ladder and ‑ so you could see if you could see in the gutter and do you agree that – is that so? Just‑ ‑ ‑?‑‑‑No, I don't agree. He wanted me to get up on the ladder and look at the roof and the gutters.
Is it your evidence that you could see into that part of the gutter where the water runs at any time?‑‑‑I can't recall. It's five years ago now. It happened so quick I couldn't really see much at all."
Then at T72 and 73:
How many gutters were you attempting to look into by climbing the ladder?‑‑‑As many as I could.
How many is that?‑‑‑I don't really know, because I never really got a chance to look at anything. I got knocked off the ladder.
…
Were you trying to climb high enough to see if there was a gutter that ran parallel to the left hand fence?‑‑‑I can't recall. It's too long ago. I climbed up there, that snapped off and it's five years ago. It's very hard to recall when something happens so quick like that. I'm sorry about that.
Do you agree that it became apparent to you by the time you got to five or six rungs up the ladder that you would not be able to see into the gutter either to the left or the right of the palm?‑‑‑I can't recall."
Mr Grimes Jr gave evidence‑in‑chief as noted above that when he was at a height of five or six rungs from the top of the ladder his father said to him "I want you to look at the roof and look at the back gutters [ie, at the back of the perspex canopy], go up higher" – T31.
In clarification, Mr Grimes Jr said that Mr Grimes Snr told him to:
" 'Go a little bit higher' he said, 'you'll be able to see better'. I put my arm on the trunk of the tree and he said 'If you put your left arm up on,' I'm not sure, 'branch or frond, whatever you call it.' I put my left arm up there just to steady myself so I could lean around and see and ‑ ‑ ‑
He said, 'Put your left arm on the frond,' or whatever it is, branch, where the pod was, I think he said, 'They're heavy'. I said, 'Are you sure I'll be okay doing that?' He said, 'Well it's got pods on there, they're heavy.' He said, 'It's holding that,' so he said, 'You're not going to put all your weight on it, just lean on it just so you can balance yourself' and I said 'Are you sure,' and he said, 'Yeah'. I can't be – I mean, that's my recollection" ‑ T32‑33.
Mr Grimes Jr further described how, when he was on the third or fourth top rung, he put his right arm on the trunk and his left arm on the frond near a fruiting pod. He then described what next happened:
"I leant out still holding with my right arm, put not that much pressure I didn't think on it and next thing I remember it just snapped, hit me on the shoulder and the next thing I knew I was in mid‑air, heading down towards the ground" – T33.
In cross‑examination, Mr Grimes Jr provided further detail about his position near or at the top of the ladder and said that his body was leaning against the palm and his right arm was as much around the tree as he could get it. He had to lean out to his left to see the guttering on the roof. His father said to him: "Hang on to that [meaning the frond], you'll be okay" and that when he did, the frond snapped and he fell ‑ T63. He said that "he didn't really put that much weight on it at all. It just snapped." He went on to explain, that:
"The pod hit me on the shoulder, knocking me off the ladder and I twisted in mid‑air to land on my feet because I didn’t want to land on my back or my side" – T64.
In cross‑examination, Mr Grimes Jr agreed that his father left it up to him as to how high he should climb up the ladder – T65. He also agreed that his father did not tell him to climb to the top of the ladder – T70.
Mr Grimes Jr was not able to describe how his father had held the ladder (T59), but Mr Grimes Snr said that he had both feet on the bottom rung and that he held the ladder with both hands in order to steady it ‑ T316‑317.
Mr Grimes Snr said that:
"… the idea was for my son just to go up there and have a quick look and then come down again …
A quick look at what?—At the roof – at the roof in general, and the cleanliness of the gutters. Because then I could have somebody come and do them later on.
… I'd just moved into the house and I really just wanted a quick run to see if the gutters wanted cleaning out and – there was a bit of the roof that I was perturbed with that needed – from what I could see needed doing. …" – T311.
Mr Grimes Snr was then shown Exhibit 3.1, being the photograph of the house from the front garden, referred to at [36] above, showing dark lines on the roof, which he identified.
He was then asked how high his son might have to climb to see those dark lines and he said at first that his son might have to climb to the second or third top rung in order to inspect the roof, but that he might have to go higher. He could do that by holding onto the palm ‑ T314.
However, Mr Grimes Snr then also said that his son's head would need to be around the height of the second or third top rung in order to see into the gutters, but he was "just guessing" – T314.
Mr Grimes Snr said that his memory of events that day "is very vague". He had been in and out of hospital since the accident. It was "asking a lot" for him to recall it ‑ T314‑315.
Mr Grimes Snr said that he did "not really" remember the conversation with his son before he began to climb the ladder.
Mr Grimes Snr was not asked in his evidence‑in‑chief if anything was discussed whilst his son was on the ladder. He was not cross‑examined to suggest that he prevented his son in any way from moving the ladder to a better location for inspection purposes. He was however cross‑examined as to what, if any, instructions he gave to Mr Grimes Jr whilst he was on the ladder as follows:
"Do you remember your son saying anything to you while you were holding the ladder, and he was on the ladder?‑‑‑Not really. Not really. There might have been ‑ there might have been something said. I don't really know. I can't ‑ I can't remember now.
Do you remember saying anything to your son when he was on the ladder?‑‑‑I could have done, as I said, but ‑ I could have done, as I said, but I ‑ I can't really remember. I really can't remember what was said. So many things, it was confusing me." – T318.
Mr Grimes Snr could not see what was going on above him because he was looking down and away because of "stuff that might come off [his son's] shoes onto my face" – T314 and 318.
Mrs Grimes Jr gave evidence that she was by the front door at the time, but she did not detail the conversation between Mr Grimes Snr and Mr Grimes Jr whilst Mr Grimes was climbing up the ladder, other than that Mr Grimes Snr said "It's alright, mate, I've got hold of the ladder" and "you'll be right" – T116.
Mrs Grimes Snr came to the front door prior to the fall, and began talking to Mrs Grimes Jr – T115. Mrs Grimes Snr was not called to give evidence.
The credibility of Mr Grimes Jr, Mr Grimes Snr and Mrs Grimes Jr
Mr Grimes Jr prevaricated and obfuscated in giving his evidence. At times, it seemed that he simply did not wish to answer questions put to him by defence counsel. Some examples from his cross‑examination set out above relate to positioning the ladder, what he was to look at whilst on the ladder and what Mr Grimes Jr could see when he was on the ladder. These evidentiary problems lead to an adverse finding against the credibility of Mr Grimes Jr for reasons detailed more fully below in my findings of fact at [109] and past economic loss at [267] – [268], [273] ‑ [274] and [298.8-11].
Further, the statement of claim as it stood at the start of the trial and as it was amended at the end of the trial is set out at [12] above.
The claim was made on the basis of Mr and Mrs Grimes Snr being "aware of the characteristics of palm trees through their having resided on properties where palm trees were growing" - statement of claim, par 5.
Mr Grimes Jr did not give any substantive evidence in support of this claim.
In his evidence‑in‑chief, he said:
"Had you had any experience with that kind of tree before?‑‑‑No.
That kind of tree obviously was growing in your parents' yard at that time?‑‑‑Yes.
Do you know whether your parents had had contact with that kind of tree in the past?‑‑‑I don't know, because I haven't been living with them for 20‑odd years. I don't know if they've had palm trees before. I couldn't tell you if they did or they didn't. In their houses, I don't know if they've got them. I believe maybe there's some palm trees in Starick Way" – T36.
…
Have your parents had contact with that kind of palm tree before?‑‑‑Not to my knowledge, no.
Have they had experience with – they had an interest in plants, an experience with plants?‑‑‑Yeah. They have, yeah.
Could you tell us about that?‑‑‑My mother used to work at a nursery" – T37.
Mr Grimes Snr gave evidence that he did not know much about palms at all. He did not know what a frond is – T310‑311.
In cross‑examination, Mr Grimes Snr denied having a palm at a prior residence, 26 Starick Way, Gosnells. He had left that address 17 or 18 years before. He had never planted a palm. He did not know anything about palms and he did not particularly like them – T319‑320. I accept the evidence of Mr Grimes Snr as to his previous lack of involvement with, and knowledge of, palms.
By inference, the instructions for the statement of claim and to cross‑examine Mr Grimes Snr must necessarily have been provided by Mr Grimes Jr to his solicitors.
The closest that the evidence of Mr Grimes Jr came to supporting the aspect of the statement of claim as to the awareness of the characteristics of palms, was his suggested belief that "maybe there's some palm trees in Starick Way". This would not be sufficient to justify the pleading at par 5 of the statement of claim. It must then also be compared to the evidence of Mr Grimes Snr. Mrs Grimes Jr did not give any evidence about this topic. In 2005, she had been married to Mr Grimes Jr for 13 years. On the evidence, it is not known whether she ever attended at 26 Starick Way.
The statement of claim at pars 7.1 and 7.4 respectively particularises that Mr Grimes Snr failed to warn his son not to apply force to the frond and that the seed pods weighed in excess of 20 kilograms. These failures to warn no doubt are based on the alleged awareness of the characteristics of palms by Mr and Mrs Grimes Snr, of which there was none. Again, the evidence of Mr Grimes Jr does not support the particulars. Indeed, the lack of any relevant awareness on the part of Mr Grimes Snr makes it unlikely that he offered advice about the frond and pod as alleged by Mr Grimes Jr at T33 as set out at [65] above.
Counsel for Mr Grimes Jr opened the case on the basis Mr Grimes Snr instructed his son to climb higher on the ladder.
Further, counsel opened on the basis of an instruction from Mr Grimes Snr to his son to reach out and grab a frond. Counsel said that this latter instruction was to:
"Just hold onto one of the branches of the palm. It's strong enough to hold the pods so it should be strong enough for you" – T4.
This partially accords the evidence of Mr Grimes Jr to "steady myself" and as told to "balance yourself" at T32‑33 respectively as set out at [65] above.
These matters raised in the opening address as instructions were not pleaded as instructions in the original statement of claim and hence the need for amendment to par 6 and the addition of particular 7.0 of the statement of claim during the trial. It could ordinarily be expected that the instruction to climb higher would have been pleaded from the outset, if in fact such instruction had been given.
As a matter of comment in passing, the statement of claim as originally filed alleged that Mr Grimes Jr "… reached out with his left hand and grabbed a frond which was attached to a fruiting pod in order to steady himself …" (par 6) and then particularised that the defendants failed "to warn [him] not to apply any force to the frond which attaches to the fruiting pod …" (par 7.1). To "grab the frond" is consistent with the failure to warn "not to apply any force to a frond". But, as counsel opened and as the statement of claim was amended, there is an apparent inconsistency between an instruction to "grab a frond … to steady himself" and a failure to warn "not to apply force to a frond". Again, any instruction could ordinarily be expected to have been pleaded from the outset.
This problem is accentuated given that the evidence of Mr Grimes Jr was to the effect that he checked with his father about grabbing the frond and that his father responded with advice regarding the heavy fruiting pods. These matters are underpinned in the statement of claim by an alleged awareness of the characteristics of palms, but which was not made out in the evidence. Neither Mr Grimes Snr, nor Mrs Grimes Jr, gave any evidence of such instructions referred to by counsel in his opening. Yet Mrs Grimes Jr was able to give evidence of other conversation between her husband and his father whilst her husband was on the ladder.
Further, it was not pleaded, either originally or on amendment, that, Mr Grimes Jr was to inspect the roof. Counsel did not open on this basis. The pleading and the opening only referred to an inspection of the gutters – T3. Its importance is that it is implicit that Mr Grimes Jr did not instruct his solicitors about inspecting the roof.
The failure to plead inspection of the roof is however, not so important given that Mr Grimes Snr also gave evidence of the need to inspect the roof. However, Mr Grimes Snr quite readily moved from the general to the specific about what was required with the roof inspection, whereas Mr Grimes Jr gave various explanations about what was to be inspected, such that I do not accept his evidence about it. I will further comment on this below at [109.20].
Another example of matters of concern arose during the cross‑examination of Mr Grimes Jr about his psychiatric condition. Mr Grimes Jr said that:
"I've just taken the expert advice. I can't work. Physically I cannot work" – T92.
The following exchange then took place:
"But mentally you can?‑‑‑Pardon?
Mentally you can?‑‑‑You'll have to ask him [ie, the psychiatrist] that.
You can do arithmetic, can't you?‑‑‑Pardon?
You can add up and subtract?‑‑‑I don't know. You'd have to ask him [the psychiatrist] that.
You don't know whether you can add up and subtract?‑‑‑Pardon?
Do you know what I mean by add up and subtract?‑‑‑Of course I know what you mean.
All right. But you've just told us we'd have to ask the doctor if you can add up and subtract?‑‑‑I've said to you, ask him for the expert advice.
I'm asking you whether you can add figures together?‑‑‑And what relevance is that?
Sorry?‑‑‑What relevance is that?"
This exchange demonstrates the attitude of Mr Grimes Jr, at various times during the course of giving his evidence. It did not instil any confidence in his evidence.
During the course of the trial, the defence played a DVD (Exhibit 6) of various scenes of Mr Grimes Jr walking during the weeks leading up to the trial. It is clear, that, he was able to walk as filmed in that DVD with less difficulty than that with which he has presented to his medical practitioners and when he attended in court. The medical practitioners who gave evidence all saw that DVD and noticed the difference in the limp and gait of Mr Grimes Jr. Except for the defence expert medico, they each generally indicated that they would not change their opinion about Mr Grimes Jr based solely on that DVD, but, Ms Jodrell indicated that she would review the assessment of needs required by him. That the medicos would not change their opinions about Mr Grimes Jr was not however based on credibility, but upon the objective findings of the injuries suffered by him.
Further, the defence attempted to show an earlier DVD of various activities by Mr Grimes Jr. After objection, counsel withdrew the attempt to play that DVD, but then sought to rely on oral evidence of what might be seen in that DVD. I have disregarded that evidence as an attempt to circumvent the requirements of disclosure as required by the District Court Rules 2005, r 45G.
Mr Grimes Jr was also criticised for overstating his claim for gratuitous services in terms of those recommended by Ms Jodrell, although, when cross‑examined about Ms Jodrell's report on his needs, Mr Grimes Jr agreed, largely, with what she said.
Further, as will be seen below at [273], Mr Grimes Jr arranged for one of his bricklayers to act as supervisor following his fall from the ladder. However, in order to overcome investigations and inquiries made by the Long Service Leave Board, a subterfuge occurred whereby the bricklayer who became the supervisor submitted accounts falsely detailing bricks laid by him in order to be paid on the basis of a subcontracting bricklayer and not as an employed supervisor. In this way, Mr Grimes Jr did not have to make provision for long service leave and other rights available to employees. That he should do this reflects adversely on the credit of Mr Grimes Jr.
I do not accept Mr Grimes Jr as a witness of credit. The above matters, together with other matters set out below, show that reliance should not be placed on the evidence of Mr Grimes Jr, unless it is confirmed independently by other evidence.
Although Mr Grimes Snr said that his memory of events was "vague" and that it was "asking a lot" for him to recall those events, he was able to explain what he required and requested his son to do. He was also specific with respect to that part of the roof about which he was "perturbed". I accept his evidence.
Further, there is no reason to doubt the evidence of Mrs Grimes Jr upon the issue of liability. She detailed conversation she heard between her husband and her father–in‑law whilst her husband was on the ladder, but she could not remember and did not give evidence of the conversation and instructions alleged by her husband. Indeed, what she heard was not the subject of evidence from her husband. It may be that she became engrossed in conversation with her mother‑in‑law and therefore did not hear all of the conversation between her husband and father‑in‑law. Her evidence however did not corroborate her husband's evidence about climbing higher and holding onto a frond.
I will comment further on credibility in my findings below.
Findings of fact
My findings of fact are as follows:
1.Mr Grimes Snr was 74 years of age at the relevant time. He had had bilateral hip operations the previous year and had also fallen off the roof of his previous house, injuring himself. He was not such a forceful person whom Mr Grimes Jr should necessarily obey. However, his sons provided help when it was needed, including Mr Grimes Jr.
2.Mr Grimes Jr was 43 years of age at the relevant time and engaged in running a bricklaying company with a large number of contractors, not necessarily totalling "around about 60" in number, as he claimed – T27. At least, there were not about 60 full time contractors as noted at [267], [268] and [282] below. Mr Grimes Jr could look after himself and make decisions for his own personal safety.
3.Mr and Mrs Grimes Snr had moved into their new home only a few days before Mr and Mrs Grimes Jr attended that home for the purpose of a dinner thanking them for their assistance in moving house.
4.The new home had a palm growing in the front garden, the fronds of which were growing at least near to a perspex canopy adjacent to the front door. There was a gutter at the rear of that canopy and there was a gutter in front of the front door. The abovementioned photographs and measurements adequately depict the scene.
5.Mr Grimes Snr was "excited" about being in his new home.
6.When his son was present for dinner, Mr Grimes Snr asked him to climb a ladder to check the gutters and the roof.
7Mr Grimes Jr did not wish to climb the ladder, but Mr Grimes Snr fetched it, unfolded it and placed it against the palm in the front garden.
8.Mr Grimes Snr persisted in his request for his son to climb the ladder. Mr Grimes Jr could however have declined to have climbed the ladder.
9.The ladder was placed against the palm. The ladder was not directly under the fruiting pod which ultimately struck Mr Grimes Jr and caused him to fall. Rather, that fruiting pod was off to the side, such that if it fell, then, it would ordinarily have fallen vertically, but not onto Mr Grimes Jr on the ladder.
10.Mr Grimes Jr said both that he could not put the ladder against the fascia board below the front gutter because it was "too flimsy" and also because it was necessary to look at the roof. He also said that it could not be put against the perspex canopy because it was "too flimsy". I do not accept that evidence.
11Had Mr Grimes Jr desired to do so, then, he could have easily moved the ladder to a more convenient location for better viewing of the gutters and that part of the roof about which his father was "perturbed". The evidence of Mr Grimes Jr as to the positioning of the ladder was less than satisfactory ‑ see [53] – [55] above.
12.Indeed, there were safer places at which the ladder could have been positioned for inspection of the gutters at the front of the house, namely against the perspex canopy without any apparent damage or the fascia board under the gutter in front of the front door or the gutter itself, all of which are as shown in Exhibit 26.1, photographs 7, 8 and 9. The uncontested evidence of Mr Taylor and Mr Royal supports this finding. The ladder could also have been positioned to the right of the house, on a concrete path and leant against the house, so that the viewer could look down the line of each of the gutters.
13.An examination of the relevant measurements from Exhibit 7.1 and Exhibit 26.1 and photographs being Exhibits 1.14, 3.3 and Exhibit 26.1, photographs 1, 2, 3, 4 and 9, all reveal that it was only reasonably necessary to expect that Mr Grimes Jr would climb to about halfway up the ladder in order to inspect the two front gutters and the roof.
14.Exhibit 26.1, photograph 9 shows the third top rung of the ladder, when positioned against the palm, is approximately at the height of the gutter at the front of the house. It is also approximately at the height as the gutter at the rear of the perspex canopy.
15.Further, as can be seen from the photograph being Exhibit 3.1, the two dark lines on the roof can be seen from the front garden. It can be inferred that it was from the front garden that Mr Grimes Snr became aware of those lines, leading him to be "perturbed". They were what he wanted inspected. The lines should have been visible to Mr Grimes Jr on the ladder once he was above the height of the gutters. Better vision of those lines could only have been achieved by moving closer to the dark lines. That would not have been achieved by climbing higher on the ladder. Mr Grimes Jr was not expected to climb onto the roof.
16.Exhibit 1.7, being a photograph of a person on the subject ladder leaning against the subject palm, shows that there should have been adequate vision of both gutters from the fifth or sixth rungs from the top of the ladder at which point, it would have been appreciated, if it was the fact, that the view into the gutters was limited by reason of the closeness of the lip of each gutter to the end of the tiles.
17.Exhibit 26.1 photographs 3 and 4 reveal an apparent limitation in seeing into both gutters at the front of the house by reason of the lip of the gutters being very close to the edge of the roofing tiles.
18.In his evidence‑in‑chief, Mr Grimes Jr said that when he got to five or six rungs from the top of the ladder ie, about halfway up the ladder, he could see the gutters, but not clearly. He then said that he could not see the gutter in front of the front door – T31 and 32.
19.Mr Grimes Jr contradicted this in cross‑examination in two ways:
(a)he said that he could see into both front gutters – T56; and
(b)he also said that he did not have the chance to see into either of the gutters, because he was knocked off the ladder by the fruiting pod. "[I]t happened so quick I couldn't really tell you what I could see" ‑ T58.
20.Mr Grimes Jr gave evidence about what he was to inspect on the roof, variously, as follows: and
(a)he was to look at the gutters and the roof – evidence‑in‑chief – T29;
(b)his father wanted him to look at the pitched roof ‑ evidence‑in‑chief – T29;
(c)when he was about five to six rungs, maybe from the top, his father said " … I want you to look at the roof as well and look at the back gutters" ie, the gutter at the rear of the perspex canopy – evidence‑in‑chief ‑ T31;
(d)"he wanted me to look at the bit of roofing as well" ‑ cross‑examination – T55.
(e)"he'd only just had some tiles fixed, I think, a couple of days ago" – T65;
(f)he was attempting to look at "all of the roof, whatever I could possibly see" – T66; and
(g)he was attempting to look at the roof to the left hand side of the white vertical wall, as seen in Exhibit 3.1 – T68.
21.Mr Grimes Jr also said about the gutters that:
(a)he was attempting to look into as "many [gutters] as he could" ‑ T72; and
(b)he could not recall if he was attempting to look at the gutter running parallel to the left hand fence in Exhibit 3.1 ‑ T73.
22.The statement made by Mr Grimes Jr as detailed at [109.20(a)] is logical and credible. However, in contradiction to that, the statements made at [109.20 (f) and (g)] and [109.21 (a) and (b)] are illogical and defy credulity.
23.It is clear, that, there were only two gutters at the front of the house to be inspected. Further, Mr Grimes Snr was "perturbed" about the black lines on the roof. It was the two front gutters and the black lines that Mr Grimes Jr was to inspect.
24.The evidence‑in‑chief by Mr Grimes Jr about inspection of the roof was general in detail as to what was to be inspected ‑ [109.20(a),(b) and (c)].
25.When pressed in cross‑examination, he gave detail about inspection of the roof ‑ [109.20(d)‑(g)] inclusive. The specific detail at [109.20(e)] did not match the specific detail given by Mr Grimes Snr that he was "perturbed" about the dark lines. I accept the evidence of Mr Grimes Snr about this. He was not challenged about it.
26.The point about the evidence regarding the roof is however, that, both father and son gave evidence of some specific detail regarding the roof inspection, and even if they differed on that detail, it limited, in each case, what Mr Grimes Jr was to inspect on the roof.
27.Mr Grimes Jr may have been mistaken as to the detail of what he was to inspect, but then, when pressed in cross‑examination, he was prepared to say anything in order to justify his action in climbing higher on the ladder than was reasonably necessary. That preparedness reflects badly on his credibility. The statements made in [109.20(f) and (g) and 109.21 (a) and (b)] are quite astounding.
28.Any inspection of the roof and gutters beyond that seen in Exhibit 3.1, whether to the left, right or rear of the house should necessarily have been inspected from the left, right and rear of the house. It is absurd to claim otherwise.
29.At T31, Mr Grimes Jr began to relate his version of events with respect to climbing the ladder. That is set out, in part, at [57] above. There is no evidence that, when he was about five or six rungs from the top of the ladder that, Mr Grimes Jr said anything to his father about not being able to see into either of the gutters or that he could not see the dark lines on the roof or the roof in general. I am not prepared to infer that anything was said by him.
30.There was therefore no apparent reason for Mr Grimes Snr to instruct Mr Grimes Jr to climb "higher" or "a little bit higher" from about five or six rungs from the top of the ladder. In any event, the evidence of Mr Grimes Jr about what he could or could not see from the position of five or six rungs from the top of the ladder was contradictory ‑ see [109.18] and [109.19] above.
31.Mr Grimes Snr did not instruct Mr Grimes Jr to climb to the second or third top rung as pleaded. Indeed, on the evidence of Mr Grimes Jr, he was only told to climb "higher" – T31 and "a little bit higher" – T32 and T33 (see [65] above) at the time when he was about halfway up the ladder. He agreed that his father left it up to him as to how high he should climb, and that he did not tell him to climb to the top.
32.Mr Grimes Jr in fact climbed so close to the top of the ladder that he could no longer hold onto it, but instead he necessarily held onto the palm from which position he grabbed a frond with his left hand. The frond then broke away. He said that the fruiting pod on the end of that then frond struck him on the shoulder causing him to fall to the ground.
33.If Mr Grimes Jr had climbed just "a little bit higher," as he said he was instructed to do, then he still could have held the stiles (ie, the vertical sides) of the ladder in safety with both hands. Alternatively, he should not have climbed so high that he could not hold onto the stiles, by reason of the need for his own safety. When his hands got to be at the top of the stiles, he could then have determined whether or not he had a better view of, or into, both gutters and onto the roof. If not, he could have said so, descended the ladder and determined how to progress further.
34.When his son climbed the ladder, Mr Grimes Snr placed both of his feet on the bottom rung and a hand on each stile of the ladder in order to provide stability for it. He mainly looked to the side rather than up at Mr Grimes Jr, for the reason that anything falling from the shoes of Mr Grimes Jr might strike him in the face and eyes. Mr Grimes Snr was therefore not really watching his son climb the ladder. He could not remember conversation with his son whilst he was up the ladder. Mrs Grimes Jr did not give evidence of any such conversation, as noted above at [78] and [79], even if she was distracted by conversation with Mrs Grimes Snr. She heard other matters of conversation between her husband and father‑in‑law. I am not persuaded that the alleged conversation, including instructions, occurred as claimed by Mr Grimes Jr.
35.Mr and Mrs Grimes Snr did not have any awareness of the characteristics of palms and there is no evidentiary basis, even on the evidence of Mr Grimes Jr, enabling him to allege that they did have such an awareness. The instructions to his solicitors to plead this allegation impact adversely on the credibility of Mr Grimes Jr.
36.Mr Grimes Jr claimed that he was instructed to take hold of the frond to steady himself or for balance. He further said that his father advised that the seed pods were heavy and that the fronds were holding the seed pods. Mr Grimes Snr did not have any relevant knowledge of seed pods. It is therefore improbable that Mr Grimes Snr gave any such advice or instruction to hold a frond as alleged. I am not satisfied that such advice or instructions were given.
37.Mr Grimes Snr was in no different position to Mr Grimes Jr with respect to the awareness of the characteristics or weight of a fruiting pod and frond which might break away from the palm when grabbed.
38.Mr Grimes Jr at least did not adequately test the frond for its strength, if at all, before transferring some of his weight from the trunk of the palm, even though he had his body, and by inference his weight, on the trunk. His right arm was around the trunk. He said that he was told "just lean on it just so you can balance yourself". It is a matter of common sense that he should have tested the frond for strength before transferring any, or any substantial, weight to it. Inferentially, he transferred too much weight to it because it "snapped", as he said at T64.
39.The proposed inspection of the gutters and roof from the subject ladder was a reasonable request, because, the undisputed measurements and photographic evidence shows that climbing the ladder to about the halfway point should have enabled inspection of the front gutters and that part of the front roof which "perturbed" Mr Grimes Snr.
40.If the inspection of the front gutters and indeed, the whole of the front roof facing the front garden as seen in Exhibit 3.1 could not have been concluded from halfway up the ladder whilst it was leaning against the palm, then, that fact could have been ascertained at that halfway point or "a little bit higher" and the ladder could have been moved to a safer and more convenient position as shown in photographs 7, 8 and 9 of Exhibit 26.1, or to the pathway to the right hand side of the house ie, to the right of the carport where the foot of the ladder could rest on concrete and the upper stiles could rest on the house.
41.Climbing a ladder is a matter of everyday experience. Mr Grimes Snr did not tell and did not need to tell Mr Grimes Jr how to climb the ladder "because everybody knows how to climb a ladder, don't they?" – T315.
42.The only concern about the use of the ladder against the palm was the fact that the top rung only rested against the palm, and not the two stiles. It is for that reason no doubt, that, Mr Grimes Snr placed his weight on the foot of the ladder.
43.When Mr Grimes Jr fell from the ladder, it and Mr Grimes Snr did not fall or move, or at least, there is no evidence that either the ladder or Mr Grimes Snr did so fall or move. Indeed, the claim is that it was the movement of the fruiting pod into his shoulder which caused Mr Grimes Jr to fall from the ladder.
44.That Mr Grimes Snr placed his weight on the foot of the ladder shows analysis by him of the task at hand. The risk was identified and appropriate action was taken to avoid the movement of the ladder.
45.Analysis of the method of inspection beyond what may be inferred to have been undertaken by Mr Grimes Snr was not necessary. Further, given my findings, professionals were not required for inspection purposes.
46.Mr Grimes Jr said that his father told him to climb "higher" or "a little bit higher" on the ladder. It is however something quite different for Mr Grimes Jr to have climbed not just "higher" or "a little bit higher", but so high that his feet were on the second or third top rung, which necessarily meant that he was required to hold onto the palm for support with his feet on the ladder.
47.By climbing so high on the ladder, to the point where he was no longer able to hold onto the stiles of the ladder, such that he necessarily had to hold onto the palm, Mr Grimes Jr was acting beyond the scope of his father's instructions, such that he was engaged in a frolic of his own.
48.Had Mr Grimes Jr not climbed above the ladder itself, there were no risks beyond the normal risks associated with the use of ladders leaning up against a palm. Indeed, he had climbed safely to about the halfway point on that ladder.
49.Mr Grimes Jr did not protest about going up the ladder for any reason of safety. Rather, his protest was because he was merely visiting his parents for dinner and did not then wish to climb up the ladder. The only reason he was in the front yard was because he was having a cigarette.
50.Mr Grimes Snr at first said that he expected his son would need to climb to the second or third top rung to inspect the roof. My finding is that Mr Grimes Snr was "just guessing" as he himself said. Further, this evidence is a matter of reconstruction and not persuasive given the evidence of measurement and the photographs. He also said that he expected his son's head would only need to be at the second or third rung level in order to be able to see into the gutters. That would seem to be true, especially when regard is had to Exhibit 26.1, photograph 9. However, this evidence also seems to be evidence by way of reconstruction, rather than actual recall of the incident. Other than these matters, I accept the evidence of Mr Grimes Snr in its detail.
Absent evidence of a plan to purchase a new home, I make no provision for the heavier work around a house.
There is no evidence detailing the future need for Mr Grimes Jr to receive a daily foot massage.
I make no provision for future gratuitous services.
Past and future travelling expenses
Mr Grimes Jr provided a schedule of travel claimed by him at 39 cents per kilometre. The total kilometrage was 2,672. Allowing for that, I will award $1,042.08 for past travel. There is a claim for future travel for which the amount sought is $800.
I propose to order a global $1500 for travelling expenses.
Summary of damages
The end result is, that, had I allowed the claim, then after providing for contributory negligence I would have assessed the damages to be awarded to Mr Grimes Jr in the sum of $182,572.62 calculated as follows:
Loss of amenities $120,000.00
Past medical expenses and interest $ 2,592.45
Future medical expenses $ 48,201.39
Past loss of earning capacity and interest $253,610.55
Future loss of earning capacity $470,655.00
Past and future loss of superannuation
and interest on past loss Nil
Past gratuitous services and interest $ 16,303.68
Future gratuitous services Nil
Past and future travelling expenses $ 1,500.00
$912,863.07
Less contributory negligence 80 per cent $730,290.45
$182,572.62
The claim of Mr Grimes Jr is dismissed.
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