Haralambopoulos v Longin

[2011] NSWSC 852

Supreme Court

New South Wales

Medium Neutral Citation:	Haralambopoulos v Longin [2011] NSWSC 852
Hearing dates:	8-9 April, 14 April 2011
Decision date:	28 July 2011
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Judgment for the plaintiff in a sum to be calculated. The defendant to pay the plaintiff's costs as agreed or assessed.
Catchwords:	TORTS - negligence - dangerous premises - injuries to persons entering premises - invitees - plaintiff visiting domestic building site - fall through void for proposed stairwell to floor below - no physical barriers in place - whether risk obvious - whether plaintiff not aware of risk - whether contributory negligence - DAMAGES - measure and remoteness of damages in actions for tort - measure of damages - personal injuries - loss of earnings and earning capacity - change in work circumstances - assessment of earnings not based on past earnings but upon basis of that of replacement salesman
Legislation Cited:	Occupational Health and Safety Regulation 2001 Civil Liability Act 2002
Cases Cited:	Francis & Ors v Lewis [2003] NSWCA 152 Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728
Category:	Principal judgment
Parties:	John Haralambopoulos (Plaintiff) Goran Longin (First defendant) Nerina Longin (Second defendant)
Representation:	Counsel: Mr D Campbell SC with Mr S Longhurst (Plaintiff) Mr D Priestley (Defendants) Solicitors: Carroll & O'Dea (Plaintiff) Lander & Rogers (Defendants)
File Number(s):	2010/81460

Judgment

1. HIS HONOUR: Mr Goran Longin and Ms Nerina Longin were owner builders of a two-storey three-bedroom home which was under construction in Kiama. Mr John Haralambopoulos attended the premises on 10 April 2008 in order to provide a quote for the construction of a pergola. He fell through a hole from the first floor to the ground floor and suffered significant injuries. He claims that Mr and Ms Longin were negligent.

The scene

1. The home was at lock-up stage and the interior was being fitted out. The land sloped from the front of the block to the rear. The upper floor of the home, which was directly accessed via a door at the front, generally comprised the living areas. The lower level comprised the sleeping quarters. A garage was at the front of the house, adjacent to the front door. At the rear of the upper floor there was a balcony and it was there that the proposed pergola was to be constructed.

1. Interior movement between the two floors was to be by way of stairs which were to be constructed adjacent to the hallway which connected the front entry to the lounge-dining room. There was a rectangular hole in the floor of the upper level where the stairs were going to be built. In the meantime, boards were placed over the hole. They were not affixed but could be moved so as to permit access between the two floors via a ladder. Obviously, when access was not required, prudence dictated that the boards completely covered the hole. Mr Longin also had some road barriers which he placed around the hole as an additional precaution.

Pleadings

1. The primary cause of action pleaded by Mr Haralambopoulos is negligence. It was also pleaded, but ultimately not pressed, that there were breaches of various provisions of the Occupational Health and Safety Regulation 2001.

1. The pleaded particulars of negligence that were pressed at the hearing were that Mr and Ms Longin:

(a)   Failed to warn the plaintiff of the hole in the floor, and

(b)   Failed to put a barrier or barricade around the hole in the floor to warn of the danger that the hole presented.

1. Mr and Ms Longin denied that they were negligent. Any injuries, and consequent loss and damage, sustained by Mr Haralambopoulos were caused or contributed to by his own negligence because he:

(c)   Failed to watch where he was going.

(a)   Failed to walk around the stairwell hole when it was obvious that he should do so.

(b)   Failed to take notice of his surroundings.

(c)   Failed to take care of his own safety.

(d)   Failed to take notice of a ladder protruding from the stairwell hole.

1. Mr and Ms Longin also claimed that Mr Haralambopoulos failed to have regard to an obvious risk (Part 1A Div 4 Civil Liability Act 2002) and that they did not owe him a duty of care to warn of an obvious risk (s 5H).

Evidence in respect of liability

1. Mr Haralambopoulos was involved with a business that performed small domestic construction projects such as patios, conservatories and pergolas. His major role was to attend sites and provide quotations. This often involved him visiting premises that were under construction or undergoing renovation. He had been involved in this type of work for about 28 years.

1. Mr Haralambopoulos arrived at the defendants' property on 10 April 2008 at some time between about 10.30am and 11.00am. The purpose of his visit was to provide a quotation for the construction of a pergola at the rear. He was met by Ms Longin. Mr Longin was busy laying fibro sheets on the floor in the lounge-dining room on the upper floor which was to provide an underlay for tiles. His father was helping him.

1. There were some glass panels in the garage. It had been proposed to use these in a wall in the living area but they were not suitable. Ms Longin engaged Mr Haralambopoulos in a discussion about whether they would be suitable for use in the proposed pergola. She took him to the garage just outside the front door to show him the panels. The pair then proceeded inside where she indicated to him the recesses in the wall where it had been proposed that they would be installed. This wall was on the immediately opposite side of the hole in the floor. As they were both "walking and talking" towards the wall, Mr Haralambopoulos fell down the hole.

1. Mr Haralambopoulos said that he and Ms Longin had been looking at "eye level" and Ms Longin was pointing to the wall, indicating the recesses for the formerly proposed glass panel installation. He took a step, or a step and a half, forward and then fell (T21). He said that he had not seen the hole before; it was not obvious; and he did not see anything protruding above the top of the hole (T22). He said that he did not strike anything on his way down and his lower limb took the full impact on the floor below (T22). I note that in the report of Dr Steven Dragutinovich dated 30 January 2009 it is said that Mr Haralambopoulos' right foot bore the brunt of the fall "which was only partially broken as he hit the side wall on his way down" but I do not think that anything is significant in this.

1. As Mr Haralambopoulos was lying on the floor, he looked up and saw that there were boards sitting on top of the opening but they were pushed back. He also saw a ladder but the top of it was at the level of the floor above; that is, it was not protruding higher than floor level. The boards were pushed back far enough for him to fall without hitting the ladder (T22).

1. Mr Haralambopoulos was obviously in considerable pain. Ambulance and police officers attended. He was conveyed to Wollongong Hospital.

1. A Workcover inspector attended the scene the following day. Photographs which were taken by the inspector were in evidence. They depict the stair void almost completely covered by boards and surrounded by road barriers. A ladder protruded about a metre above floor level. When I say "almost completely covered", the boards were about 20 centimetres back from the ladder, exposing a hole through which only a very small child could fit through.

1. Clearly, the scene depicted in the photographs was not as it was the previous day. I note that the Workcover inspector's report states that "plywood sheets covered the whole void area right up to the extension ladder". Accordingly, it would seem that for some reason the boards had been pulled back for the purpose of the photography. The defendants maintained that the ladder was protruding as depicted in the photographs but they did not maintain that the road barriers were in position.

1. It was suggested to Mr Haralambopoulos in cross examination that the wall that he was looking at when he fell had a number of recesses where the glass panels had been intended to be installed and that these recesses descended so as to follow the line of the proposed stairs. It was suggested that this would have put Mr Haralambopoulos on notice. He did not, however, notice this. The effect of his evidence was that Ms Longin was pointing out one of the recesses, which was at eye level, and he did not have an opportunity to notice the descending series of these recesses (T43-44).

1. Mr Haralambopoulos claimed that he did not notice the stair void at all. He did not even realise that there was a floor below. He did not see the plywood sheets on the floor or the ladder (T45-46), although later he agreed that he had seen the boards on the floor (T53.12). He conceded that from his experience, he knew that when a building is under construction there might be hazards on the floor (T52).

1. Mr Steven Capenecas was a work colleague of Mr Haralambopoulos. He received a telephone call on the day of the accident and went to the scene. Ms Longin showed him where the fall had occurred. He saw an opening in the floor about one metre wide by three or four metres long. There was a ladder but it did not protrude above the hole (T76). He conceded in cross-examination, however, that he had discussed the position of the ladder with Mr Haralambopoulos: "it was brought up in conversation between us when he was able to sort of talk" (T88.8). He claimed, however, that he did not derive his knowledge of the position of the ladder from these conversations because " John was very hazy actually in what he spoke about" (T91.32).

1. Mr Capenecas claimed to have told the Workcover inspector what he observed about the ladder, but there was no mention of it in the statement that the inspector obtained from him in June 2008 (T88-91).

1. Mr Longin's evidence was that the barricades had been in place around the stair void but he had moved them away because he needed turning space when he carried into the house the fibro sheeting that he was installing on the living room floor. He laid the barricades down on the floor in the lounge room (T97).

1. As to the ladder, Mr Longin described it as being aluminium and extendable. On the morning of the plaintiff's fall, it was protruding through the hole by about a metre, as it always was (T98), and as it is shown in the Workcover inspector's photographs (T99).

1. Mr Longin had put the barricades back before the attendance of the Workcover inspector. He said that this was "an extra safety precaution ... so they can be aware there is a ply board protruding above the floor level" (T100).

1. The fibro sheeting was being brought into the house from the garage. He did not need to move the plywood over the stair void to bring the fibro sheets up from the floor below (T101). These sheets were about 2.4 metres long by 1.2 metres wide, and that was why it was necessary to move away the barricades as he brought them into the house (T102).

1. Mr Longin agreed that he had no need on this morning for the plywood to be pulled back, exposing the stair void, for the purpose of the work he was performing. However, it was possible that his father might have needed to access the lower level, using the ladder, in order to get to the toilet which was in the backyard (T107).

1. Neither Mr Longin, nor apparently his father, saw the accident. Mr Longin became aware of what had happened when his wife alerted him to it a short time later.

1. Mr Longin conceded the following points:

• He knew that an exposed hole presented a danger (T109.44).
• It was essential that after the boards were pulled back to access the hole, the hole was closed off again, because otherwise there would be a danger (T110.5).
• His father was aware of this, but Mr Longin was in charge, and he made sure that his father closed the hole as well (T110.14).
• If the hole is closed off, no-one can fall through it (T110.17).

1. Mr Longin at first said that it would have been impossible for Mr Haralambopoulos to have fallen if the hole had been as small as it was depicted in the Workcover inspector's photographs (T110.48), but, almost immediately claimed that the hole was as shown in the photographs and would not agree that the fall could not have occurred if that was the case (T111). He later confirmed that on the morning of the accident the hole was the size depicted in the photograph (T118).

1. Ms Longin was asked to describe the stair void in the moments before the accident. She said there were boards covering it and the ladder was protruding from it (T122-123). The ladder was "where it's always been" and it protruded "enough for me to grab on" . She explained, "You have to hold on to a ladder to go up and down, because there's nothing else in that vicinity to grab on to. How would you climb up and down the ladder?" She estimated it protruded "about - under a metre" (T123); about the same as shown in the Workcover inspector's photographs (T124).

1. As to the size of the hole through which Mr Haralambopoulos fell, Ms Longin's evidence was that it was "probably the same" as shown in the photograph (T124.28). That, of course, is simply not possible.

1. Ms Longin said that she did not see the fall. She said, " It's like he was next to me and we were looking up and talking and the next minute he wasn't. ... (W)e were both looking up at that very first opening... " (T126). This was a reference to the recess in the wall above the stair void where it was originally planned to install the glass panels. She was indicating to him a particular spot on the wall (T133.25) and when it was suggested to her that " obviously his eyes followed your hand, that is, he looked in the area that you were pointing to ", she was prepared to assume that was the case (T133.29).

1. Ms Longin obtained a mobile phone from her husband. She telephoned emergency services and went down the ladder to assist as best she could.

1. Ms Longin said in cross-examination that she mentioned the stairwell to Mr Haralambopoulos prior to the accident when they had first walked past it on the way to the rear of the upper level where the pergola was to be erected (T134.25). She was not asked to recount the actual words spoken and I got the impression that her evidence at this point was a summary that is open to a number of possible interpretations. There is also a concern that this was not something that was put in cross-examination to Mr Haralambopoulos. I do not believe it would be safe to act upon it.

1. It was suggested by counsel for the plaintiff that Ms Longin's account of Mr Haralambopoulos and herself passing the stair void on the way to the balcony where the pergola was to be erected, then passing it again on the way to the garage to look at the glass panels, and then the fall occurring when he was a third time in its vicinity had "[n]ever been put" (T134.47). It was, however, consistent with the evidence Mr Haralambopoulos had given (T20-21). Ms Longin's account was contrary to what the Workcover inspector had recorded. He had her version being that the fall had occurred at Mr Haralambopoulos' first presence at the stair void. Having regard to the consistency between the version in oral evidence of both Ms Longin and Mr Haralambopoulos, however, I am prepared to accept it in preference to the inspector's non-verbatim summary.

Facts found

1. I am satisfied that the following facts have been established:

• Mr Haralambopoulos was invited on to the premises by Mr and Ms Longin.
• Mr and Ms Longin were well aware of the potential for danger associated with the stair void. They were also, by acknowledging the need for plywood coverings and barricades, well aware of the need to alert strangers to the danger.
• Mr Haralambopoulos was experienced in being on and around residential construction sites and was aware, in a general sense, of potential dangers that may be encountered. It was not contended otherwise. This fact must be evaluated in light of the fact that the building was a domestic dwelling that was at lock-up stage; quite a different proposition to a building site with walls, floors and ceilings obviously incomplete.
• Barricades around the stair void, a prudent safety measure, were not in place at the time of Mr Haralambopoulos' visit.
• Plywood boards covered part of the stair void, but they must have been pulled back sufficiently to create a hole of enough size for Mr Haralambopoulos to fall through with no, or minimal, impact with either the sides of the hole or the ladder. Clearly, the hole was substantially larger than the hole shown in the Workcover inspector's photographs. Mr Priestley, counsel for the defendants, conceded in oral submissions that "the hole was big enough to fall through" (14.4.11 at T1.40). Attempts by Mr and Ms Longin to suggest the hole was about the same size as shown in the photographs do not serve their credit well.
• Mr Haralambopoulos agreed in cross-examination that he saw boards on the floor. However, it is clear that he did not take in the full extent to which such boards were there. There was no apparent need to do so. If he had, he would have seen the hole, which clearly he did not. The mere sighting of boards on the floor of a house under construction would not have served to put Mr Haralambopoulos on notice that they might be concealing a hole in the floor.
• The ladder was, more probably than not, protruding some distance above the floor level, probably about a metre. Ms Longin's explanation of the practical necessity of being able to take hold of some part of the ladder if descending to the floor below makes sense.
  • Mr Haralambopoulos' evidence on the subject must be viewed with caution because his observations of the ladder were made when he was undoubtedly experiencing significant pain and shock.

• Mr Capenecas' evidence on the subject also must be viewed with caution. It conflicts with both common sense and the evidence of the plaintiff who he regarded as a "friend" (T79.50). His claim to have told the Workcover inspector about the positioning of the ladder, who did not record it in his statement, is also a concern. Further, his observation was made at a time after Ms Longin had descended the ladder to assist Mr Haralambopoulos and it is most likely that she would not have done so with the top of the ladder at floor level.
• Ms Longin and Mr Haralambopoulos were most likely engaged in conversation about her requirements for the pergola and the glass panels as they walked past the stair void on two occasions prior to the accident.
• As they approached the stair void for the third time, Ms Longin engaged Mr Haralambopoulos' attention in pointing out something at eye level, thereby distracting any attention he may otherwise have paid to the floor surface in front of him.
• At no stage did either Mr or Ms Longin give any warning to Mr Haralambopoulos concerning the hole exposed by the plywood boards having been pulled back on the stair void. Ms Longin was well aware of the hole, and that it was usually covered. There was no evidence that she noticed that it was uncovered sufficient to allow an adult to fall through, and thus presented a risk, when she took Mr Haralambopoulos towards it.

Findings on liability

1. First, confining consideration to the matters in s 5B of the Civil Liability Act that are required to be considered, I am satisfied that the defendants knew of the risk and that it was far from an insignificant risk. The burden of taking precautions to avoid the risk of harm was minimal. Even if it was necessary for the barriers to be removed at the time the plaintiff attended the home, ensuring the hole was covered and/or providing a verbal warning to him were not unreasonable precautions to take. With an exposed hole in the floor of sufficient size to permit an adult male to fall through, there was a significant probability that harm would occur if such precautions were not taken. If such an event occurred, the harm that would be caused would obviously be of considerable seriousness. Finally, there was no utility, social or otherwise, in the activity that created the risk. Accordingly, a reasonable person in the position of the defendants would not have failed to take precautions against the risk of harm.

1. Submissions on behalf of the defendants proceeded upon an acceptance that the defendants, as occupiers, owed a duty of care, but it was contended that they had an entitlement to expect that an entrant would take reasonable care for his or her own safety: Francis & Ors v Lewis [2003] NSWCA 152 at [40] per Mason P. I am not persuaded, however, that the plaintiff did not take reasonable care, even with his familiarity with building sites.

1. It is necessary to consider the question whether the risk would have been obvious to a reasonable person in the position of the plaintiff (Part 1A Div 4 Civil Liability Act ). Having regard to all of the circumstances I am not persuaded that it would have been. I accept that the hole was of a significant size and it would have been clearly visible to anyone who looked in the direction of that part of the floor. There is also the ladder protruding from the hole, perhaps up to a metre above the floor level.

1. But the plaintiff was a stranger to the location. He was engaged with Ms Longin in conversation about the construction of the pergola and the issue concerning the glass panels. In the moments before the fall she was drawing his attention to something at eye level, thereby distracting him from the dangerous hole in the floor that was in front of him. In the preceding minutes he had twice walked past the hole but there was no reason for him to be looking around the entire area of the floor as he proceeded from the front door to the balcony at the rear and back again. It would seem likely that he was engaged in conversation with Ms Longin throughout the period from when he first arrived at the premises until he fell. I am not satisfied that the risk of harm would have been obvious to a reasonable person in the position of the plaintiff.

1. The fact that the defendants felt the need to not only cover the hole with plywood boards but to also position a number of protective barriers around it, also militates against a conclusion that the risk was an obvious one.

1. Even if the risk of harm would have been obvious to such a reasonable person, I am satisfied that the plaintiff has established on the balance of probabilities that he was not aware of the risk. I accept his evidence that he was experienced in attending premises that were undergoing some form of construction or renovation and was aware that hazards may be encountered. However, I also accept his evidence that he did not notice the stair void, the plywood boards or the ladder. Most telling, in my view, was his evidence that he did not even realise that there was a floor below the level he was on.

1. At one point in his evidence the plaintiff said that if the ladder had been in the position depicted in the Workcover inspector's photographs it would have been obvious: "It would have been obvious that there was a ladder there if it was sticking out that far" (T31.16). On one view that answer might be characterised as a concession that if the Court found that the ladder was indeed protruding at the time of his visit, that the risk would have been apparent to him. In my view, however, that response really goes no further than to concede that if the ladder was protruding and he looked in that direction, he would have seen it. There is no evidence that he had any need to look in that direction at any time, let alone that he did in fact do so.

1. For these reasons I am not persuaded that the defendants did not owe a duty of care to the plaintiff upon the basis that the risk of harm was obvious. Moreover, I have concluded that the sole cause of the harm occasioned by the plaintiff was the failure of the defendants to exercise reasonable care by either warning him of the risk and/or putting a protective barrier in place.

1. It was submitted on behalf of the defendants that the plaintiff "was to a large extent the author of his own misfortune". I am not satisfied that there was any element of negligence on the part of the plaintiff. His failure to see the hole was reasonable, given the circumstances of him being a stranger to the premises who was being escorted around by the second defendant who was directing his attention to aspects upon which she sought his advice.

Damages

Evidence concerning damages

1. The plaintiff was born in 1958 and is now 52 years of age. He left school with his School Certificate at the age of 16. He and his wife were married in 1984. They have one daughter who is aged 23 and currently studying in the United States of America with the benefit of a tennis scholarship.

1. The plaintiff was in good health prior to the accident. He used to play tennis and helped train his daughter. He was a talented snooker player, competing at national level. He also enjoyed fishing and golf.

1. Upon leaving school, the plaintiff completed an apprenticeship as a fitter and turner at the Port Kembla steel works. He then worked in video stores for 3 or 4 years before entering the building industry in the early 1980's. Although he did not engage in any formal training, he acquired skills, including in computer aided design. His work in the 27 or 28 years before the accident involved him in providing clients with designs for small construction projects. He prepared costings and quotations for the construction of patios, atriums, conservatories and the like.

1. The plaintiff traded through a company called Albion Way Pty Limited. The work was subcontracted by Sales Galore Pty Limited. His role was described as involving design, costings, estimation, sales and marketing.

1. At the time of the accident, there was a proposal to expand the scope of work that was undertaken from "light weight construction" to "full construction", meaning domestic building work in the nature of building whole rooms and whole floor extensions. This was an initiative proposed by the plaintiff. He was to have performed the same role as he had previously, that is the preparation of designs, costings and quotations, but he has not been able to do so because of the effects of his injuries. Another man, Mr Alessio Sidoni, was engaged to perform what was to have been the plaintiff's role.

1. Some time after the accident, a position was found for the plaintiff with Sales Galore Pty Limited which is, essentially, office work. It is not a full-time role but allows him to work at his own pace, taking breaks when required, and mostly from home. Mr Campbell SC, without being disrespectful, likened it to "working in (a) sheltered workshop provided to him by the good graces of Mr Capenecas" (14.4.11 at T25.22). The plaintiff said that his income had been reduced significantly, but that he does not have the training, skills and experience to do anything else. He also said that he is not one to "sit around doing nothing" and would work until at least the age of 67. Mr Capenecas confirmed there was no other work available that was suitable to the plaintiff's current abilities. Initially the salary paid was $500 per week which in about mid-2010 was increased to $750 per week.

1. In a report of 30 January 2009, Dr Dragutinovich, clinical and consulting psychologist, set out the plaintiff's immediate reaction to the accident:

When I looked down my [right] leg was going in the opposite way to my pants-line - the shock took over - it was surreal - it felt like a bad dream - then the client started screaming - panicking badly - she kept apologising - she called her husband - they rang an ambulance - I was injected with morphine - the SES had to lift me out - I felt confused - panicked - I had this pit in my stomach - I kept feeling like I was going back down - falling - I know it sounds silly but as I'm talking to you about it now I can still feel that feeling - it still comes [flashes] back when I think about it even when I don't want to think about it - it feels horrible.

1. After recounting aspects of the treatment the plaintiff received, Dr Dragutinovich continued:

Since then to date John has suffered constant pain in the right foot, across the right ankle, in the right tibia and right fibula and right knee which he, as a stoic man who regards himself as having a high pain threshold: 'you have no choice', describes as: 'bloody annoying but that's not the main problem - the main problem is the sharp, shooting pains up through my foot and to the knee - it brings tears to your eyes - unbearable pain which I get when I step with my foot [flat] down - I have to compensate by stepping down [with a rolling motion] on the right side of my foot with my right toe sticking up - I still get the pains - it's bad but not as bad as when I step normally which I don't do anymore - I'm trying to but I can't because it hurts so much - the worst is steps - worse when I'm going down steps - when I'm going up [steps] I can pull my leg up - when going down the shooting pain is unbelievable - I can't walk properly along uneven ground.

1. I interpolate that the reference to the plaintiff as a "stoic man" is consistent with the impression I formed when listening to his evidence in the trial.

1. Dr Dragutinovich reported that although the plaintiff did not claim to be suffering "accident related mood and affect disturbance", he did concede that his wife and former work mates consider that he now becomes easily frustrated, irritable and angry. He found it boring to be doing nothing in comparison to his previous active lifestyle. He ruminated about the accident and the dramatic changes it had caused to his life. He had not been able to return to his job and this has had a significant effect upon his income earning capacity and, in turn I have no doubt, his pride and self-esteem. There has been impact upon his capacity to socialise. He is no longer able to enjoy rock fishing, competitive snooker, tennis and golf. He told Dr Dragutinovich, "(W)hen you can't work and can't socialise there's not much to do except sit on your bum and eat and drink" .

1. Although the plaintiff denied that he was depressed, Dr Dragutinovich's administration of the Beck Depression Inventory-2 evaluated his depression at the time of testing (30 January 2009) as being in the "moderate category".

1. The plaintiff endorsed a number of items in the inventory which are of note: feeling sad much of the time; feeling more discouraged about the future; getting very little pleasure from the things he used to enjoy; feeling like he was being punished; experiencing a loss of confidence; being restless or agitated; being less interested in other people or things; not considering himself to be as worthwhile and useful as before; not having enough energy to do very much; sleeping a lot less; being more irritable; not being able to concentrate as well as before; being too tired or fatigued to do things he did before; and being much less interested in sex.

1. Dr Lorraine Jones, a consultant in rehabilitation medicine, provided a report of 28 March 2009. Mr Campbell specifically referred me to her opinion that the plaintiff "has had a very severe knee injury" and " will develop severe osteoarthritis in his knee and will require a knee replacement in the future" (Mr Campbell emphasised the "will"). Dr Jones confirmed that the plaintiff was not fit for his pre-injury occupation. It was her opinion that impairments to the plaintiff's knee, foot and various toes, and his sensory impairment combine to give a 19 per cent whole person impairment.

1. Ms Sophie Hogg, occupational therapist, provided in her report of 12 May 2009 the history she received from the plaintiff of his experiences following discharge from hospital after three weeks as an inpatient. He had a full range of motion brace on his right leg and was using crutches and a manual wheelchair for mobility. He was advised to avoid weight bearing on his injured leg for three months.

1. For the first four months he slept downstairs in a recliner chair, sponge bathed at the kitchen sink and used the downstairs toilet and basin for personal hygiene and grooming tasks. His wife was the primary care giver aside from an initial two weeks of daily visits by a community nurse for wound care.

1. The leg brace was removed after a couple of weeks and he was advised he could begin weight bearing, insofar as he could tolerate it, on 13 June 2008. By that stage he was undergoing physiotherapy and hydrotherapy.

1. In her assessment in May 2009, Ms Hogg observed the plaintiff to have a limp, but did not require any walking aid. He told her that he was managing steps with difficulty but had resumed sleeping and bathing upstairs. He was still undergoing physiotherapy and physical therapy. He experienced significant levels of pain, worse on weight bearing, as well as occasional rapid swelling in his right lower limb when aggravated. He had been told in his most recent review with his trauma specialist, Dr Walker, that he should persist for another three months, but if there was still no improvement in pain levels he would be considered for referral to a neurologist.

1. Ms Hogg set out the various symptoms the plaintiff reported at the time of her assessment. They include significant pain in his right lower limb as well as weakness and reduced stability. He reported that a difficulty with his right shoulder previously experienced had fully recovered by the time of seeing Ms Hogg. (This aspect of the history, Mr Campbell submitted, supported the proposition that the plaintiff was not exaggerating or malingering (14.4.11 at T27.15)). The other major symptom of note is that the plaintiff reported that his back injury was becoming progressively worse and that he, by that stage, experienced chronic lower back pain.

1. Ms Hogg's report includes an extensive survey of the various respects in which the plaintiff's physical abilities have been affected so as to impair or disable his participation in everyday living, social and sporting activities. Suffice to say the report includes that the plaintiff's "injuries have significantly impacted on his capacity to manage all ADLs, inclusive of personal care, domestic duties, home maintenance, driving and leisure" .

1. Dr Richard Walker, orthopaedic surgeon, has managed the treatment of the plaintiff since he was admitted to Sydney South West Private Hospital four days after the accident. There were multiple consultations since that time. Dr Walker described the plaintiff's injuries as:

1.Intraarticular bicondylar right tibial plateau fracture with displacement.

2.Compartment syndrome right leg.

3.Fracture of the right medial cuneiform bone with subluxation of the first metatarsal cuneiform joint.

1. Dr Walker performed an open reduction and internal fixation of the right proximal tibia fracture and a repair of the medial meniscus. Fasciotomy wounds were closed and an external fixator was removed.

1. A subsequent operation on 17 April 2008 involved an open reduction and internal fixation of foot injuries.

1. At the time of the last of the consultations with Dr Walker on 18 August 2009, the plaintiff had experienced no real change in his symptoms for some months. He experienced ongoing pain in the knee and ankle and generalised weakness in the leg. He reported occasional episodes of the knee giving way.

1. Dr Walker's report includes an account of the various ways in which the plaintiff's domestic, work, social and sporting life has been affected. It is consistent with what has been reported by others. Dr Walker made an assessment of 19 per cent whole person impairment.

1. In a subsequent report dated 28 January 2011, Dr Walker indicated that the plaintiff had not previously mentioned back pain to him, but he allowed for it being a possible result from altered gait patterns. I note that it is stated in the report of the defendant's orthopaedic surgeon, Dr Roger Rowe, that "the diagnosis in regard to the back is probable postural aggravation of degenerate change associated with age. This aggravation is probably the result of strain associated with the fall and also the ongoing limp resulting from the injured right leg" .

1. Dr Peter Sherell, the plaintiff's general practitioner, noted in his report of 17 November 2009 that the plaintiff experienced the following symptoms:

reactive depression;

restricted social and sporting activities due to his leg injuries, with painful giving way sensation in his right ankle and foot;

right knee swelling with limited flexion;

right ankle swelling with poor ankle movement;

reduced peripheral pulses on the right leg with apparent right leg shortening; and

general hypersensitivity in the right lower leg and foot

1. Dr Sherell also noted that the plaintiff is permanently unsuited to resume his former employment; he was restricted to lifting of 8kg and less; and he is unsuited for prolonged standing, walking and sitting in the one position.

1. Dr Klaas Akkerman, psychiatrist, provided a report which was tendered on behalf of the defendant. He is somewhat critical of the DSM-IV (TR) diagnoses of post-traumatic stress disorder and chronic pain disorder made by Dr Dragutinovich. Dr Dragutinovich and Dr Akkerman subsequently conferred and produced a joint report. They remained largely in disagreement. Mr Campbell pointed out, however, that the plaintiff is not claiming for psychiatric injury (14.4.11 at T30.13). Accordingly, this matter of dispute may be put aside.

1. The report of Dr Rowe is dated 27 May 2010. It raises no significant matters of dispute with the first report by Dr Walker. Dr Rowe agreed that the plaintiff was permanently unfit to resume his pre-injury employment. His conclusions include that the plaintiff's "ability to lead a normal life has been significantly impaired by the accident" .

1. Drs Rowe and Jones prepared a joint report following a discussion between them on 31 January 2011. They agreed as to the disabilities the plaintiff experienced as a consequence of his injuries which had been set out in their individual reports. They agreed that such disabilities were permanent. They were also in agreement that the plaintiff would likely require a total right knee replacement in the future. Dr Walker was of the opinion that there was a possibility that such replacement may need subsequent revision. Drs Rowe and Jones accepted that this was a possibility, but did not regard it as a probability.

1. The plaintiff's oral evidence included that for the first three months after his return home from hospital he did nothing. He and his wife lived in a two storey townhouse. The bedrooms and bathrooms were upstairs whilst the living areas, kitchen, and a toilet were downstairs. He confirmed that he slept on a recliner chair downstairs because he could not use stairs whilst dependent upon crutches. He used the downstairs toilet and bathed in the kitchen. He spent his days watching television while his wife was at work (T26-27).

1. Two crutches were used for the first eight or nine months. The plaintiff was then able to manage on one crutch for the next three or four months. He then progressed to a walking stick. He had been advised to try not using it in order to maintain some strength but there were still occasions when he found it necessary.

Non-economic loss

1. It was submitted on behalf of the plaintiff that an assessment in the range of 45 to 50 per cent of a most extreme case should be made. Specifically, Mr Campbell submitted that "a figure of 40 per cent would be unthinkable, a figure of 45 per cent would be conservative and a figure of 50 per cent would be about the mark" (14.4.11 at T31.1). This is to be contrasted with the submission of Mr Priestley on behalf of the defendant that "33 per cent, a third of a worst case of a man his age reflects the seriousness of his injury. Anything much more would be outside the range" (14.4.11 at T4.30).

1. The plaintiff confirmed the various changes and limitations in domestic, social and sporting activities that are well set out in the reports. It became abundantly clear when listening to his evidence that his self-esteem and general enjoyment of life has been significantly impacted. This is overlaid by virtually constant pain. His stoicism is exemplified by his reticence in using pain relieving medication.

1. The foregoing review of the medical evidence indicates that, aside from psychiatric injury which is not part of the plaintiff's claim, there is little that is in dispute. The plaintiff has endured considerable pain and suffering, particularly in the first year or so following the accident. This has reduced but the present level is not likely to abate any further. His ability to undertake many activities, domestic, work, social and sporting, has been significantly impacted.

1. I am satisfied that an assessment of 45 per cent of a most extreme case is appropriate. With the amount currently declared for the purposes of s 16(2) of the Civil Liability Act being $500,500, that yields an award of $225,000.

Past out of pocket expenses

1. The parties agree on an amount of $52,043.89.

Future treatment

1. The plaintiff sought an amount for future consultations with his general practitioner. There is reference in Dr Walker's report of 1 September 2009 to the plaintiff likely requiring analgesic and anti-inflammatory medications and, for this reason, needing to see his general practitioner every month or two for repeat prescriptions. However, I note that the plaintiff gave evidence that he was no longer taking medication and that this was his preference (T37). Despite this, I accept, as did counsel for the defendants, that there will be a need for future general practitioner consultations.

1. A claim is made in respect of a need for future surgery. Dr Walker said in his first report that further surgery is "likely". It was his view, in September 2009, that as the plaintiff's symptoms had not by that time improved, "it would be reasonable to consider arthroscopic examination of the knee and removal of all his hardware". He estimates a cost in the range of $8,000 to $10,000 for this.

1. Dr Walker also reported in September 2009 that "if" the plaintiff developed post traumatic osteoarthritis of the knee requiring total knee arthroplasty, further hospitalisation would be required. He assessed the cost of such an admission as being in the order of $25,000 to $30,000 with an additional need for ongoing post-operative physiotherapy. Further, given the plaintiff's age, Dr Walker considered that he would likely require revision surgery at a cost of $30,000 to $35,000, depending on the implants required.

1. In his subsequent report of 28 January 2011, Dr Walker referred to the need for total knee arthroplasty if the plaintiff was to develop post traumatic osteoarthritis as a "possibility", and reiterated that revision surgery some years later "may" be required. However, he then opined that the chances of the plaintiff developing significant post traumatic osteoarthritis over the next 5 to 20 years were "highly probable". He updated his assessment of costs: $7,000 to $10,000 for the removal of hardware and arthroscopy of the knee; $30,000 for the knee arthroplasty; and $45,000 for revision of the knee arthroplasty.

1. Dr Jones put the matter of future surgery more strongly: "He will develop severe osteoarthritis in his knee and will require a knee replacement in the future" . Her estimate of the cost of the knee replacement, in her report of 28 March 2009, was $20,000.

1. Dr Rowe regarded it as "more probable than not" that the plaintiff will experience premature and significant arthritic change in his knee over the next five to ten years. He estimated the total cost of a total knee replacement as being in the order of $25,000.

1. In their joint report, Drs Rowe and Jones expressed the view that a total right knee replacement in later life was "likely" . They referred to Dr Walker's view that subsequent revision may be needed and agreed that, although this was a possibility, it was not really a probability.

1. For the plaintiff it was submitted that a sum of $41,775 should be awarded for future treatment, whereas the submission for the defendant was that "a reasonable figure ... might be in the order of $35,000". Precise calculation of an appropriate amount not being possible, I propose to allow $40,000.

Past domestic assistance

1. There was a substantial dispute as to the amount that should be awarded for past domestic assistance.

1. The plaintiff's evidence was that his wife did everything for him for the first three months following his discharge from hospital, during which time he was virtually confined to the recliner chair downstairs. He had very limited mobility for the balance of the first nine months after the accident when he needed to use two crutches and his wife continued during that time to do everything for him.

1. Mrs Haralambopoulos was asked how many hours per week the plaintiff contributed to domestic and gardening chores before the accident. In her evidence in chief, she said "I don't know, about 20, 30 hours; 20 hours" (T65.31). In cross-examination, she agreed that she had not given that answer much thought. At the end of her evidence she said, "Per week? I don't know, about 10, 12, maybe" (T68.29).

1. As to what he did after the accident, she said in chief, "Now? Actually nothing" (T65.27). In cross-examination, she indicated that he performed some minor tasks such as dusting his computer, cleaning up after himself in the kitchen and occasional cooking (T66-67).

1. Ms Haralambopoulos experienced a serious back injury following a car accident in 1978 which restricted her ability to perform "the heavier parts of the housework and that sort of thing" (T63). She nominated cleaning the bathroom, carrying washing, vacuuming and carrying shopping as examples of tasks the plaintiff performed because she could not (T64). Since the accident they have paid for somebody to come in to assist with housework "about every five, six weeks" (T65).

1. The plaintiff said that the domestic cleaning service came to the house "about every six weeks" and it cost "$400 and something" each time, he thought. He had also paid for someone to attend to mowing lawns and household maintenance tasks. Each of these costs was met by workers compensation up until about February 2010 (T41).

1. The plaintiff's claim is for $36,000 (40 hours per week for 40 weeks at an average of $900 per week) and $33,000 (12 hours per week for 110 weeks at approximately $300 per week, this being part commercial and part gratuitous assistance); a total of $69,000.

1. On behalf of the defendants it was conceded that domestic assistance of, perhaps, 10 hours per week may have been necessary for the first 9 months after the accident whilst the plaintiff was on two crutches.

1. I do not accept the estimate by Ms Haralambopoulos that her husband was performing 10 to 12 hours of domestic chores per week before his accident. It had all the hallmarks of an off the cuff guess. In any event, it is at best only a partial guide to the gratuitous attendant care services provided since the accident.

1. With the plaintiff being virtually helpless in the first nine months, I would assess the amount of additional work and care provided by Mrs Haralambopoulos at an average of 3 hours per day or 21 hours per week.

1. The subsequent period to the date of judgment is in the order of 131 weeks. Ms Haralambopoulos' provision of gratuitous attendant care services has continued but there has been less need as the plaintiff acquired some improvement in mobility. That improvement was likely in the early part of this period before it plateaued at the level of restriction that now persists. Seven hours per week is, in my view, a reasonable average.

1. I will leave it to the parties to calculate an appropriate figure in accordance with s 15(5) of the Civil Liability Act .

1. I accept the plaintiff's evidence that he has had to pay for commercial domestic assistance since about February 2010, and that it cost about $400 for each six weekly service. Again, I will leave it to the parties to agree on a calculation to the time of judgment.

Future domestic assistance

1. It was submitted that there was a need for commercial domestic assistance in the order of 3.5 hours per week; handyman, gardening, lawn and maintenance assistance of 2.5 hours per week; and a shopping home delivery service at $20 per week. The submission relied upon the recommendations in the report of the occupational therapist. The total award sought in relation to this category was $263,127.25.

1. Mr Priestley submitted that one hour per week was appropriate. Reference was made to the joint report of Dr Rowe and Dr Jones in which it was said to be reasonable that the plaintiff have domestic assistance in regard to lawn mowing and garden maintenance and that he may also require assistance for any heavy work or work around the house requiring kneeling or squatting.

1. There was some controversy about the extent to which the plaintiff and his wife had engaged external services to assist with tasks around the house. To date, this has been done at a low order of frequency but that is not a useful guide as to what is actually required. The frequency with which there has been recourse to such services has been driven not so much by need but by cost.

1. In my view, the joint report understates the position and fails to acknowledge the contribution that the plaintiff formerly made in terms of household cleaning and related chores that his wife either could not perform or found difficult because of her back complaint. Two hours per week appears to be a reasonable amount to allow for domestic assistance.

1. The need for handyman, gardening, lawn and maintenance assistance is something that would fluctuate. The plaintiff lives with his wife in a rented townhouse with what seems to be an outdoor area of modest proportions. The landlord would be responsible for provision of certain types of handyman and maintenance services. However, I accept the plaintiff's evidence that these are not always attended to in a timely fashion and so he used to attend to many such matters himself (T60). I am of the view that an allowance of one hour per week is appropriate.

1. The plaintiff gave evidence that his wife did the shopping but that he used to reluctantly assist her once a week. He told Ms Hogg that his wife did most of the grocery shopping but that he assisted her when necessary. He also said that now he is unable to complete shopping due to his poor walking tolerance.

1. I am not persuaded that an allowance for a weekly shopping service is necessary. The plaintiff and his wife are the only occupants of the house and their shopping requirements must be relatively modest.

1. As with past domestic assistance, I will leave it to the parties to agree a calculation upon my conclusions of two hours per week for domestic assistance and one hour per week for handyman, gardening, lawn and maintenance assistance.

Net income loss

1. It was the plaintiff's submission that there should be an amount of $149,378 for past net income losses and $552,973 for future net income losses. It was also submitted that there should be an amount of $100,000 allowed for the lost opportunity to significantly increase earning capacity.

1. For the defendant, however, it was submitted that there should be an award in the order of $18,000 for past lost and that "an appropriate cushion for future economic loss would be in the order of $100,000". Alternatively, it was submitted that "loss for the future would be reflected by a notional weekly sum in the order of $200 per week".

1. The plaintiff relied upon reports by an accountant, Mr Dennis Furey. His rationale was to completely ignore past earnings (although past taxation returns are annexed to his first report). Mr Furey looked at the commissions earned by Mr Sidoni since he commenced doing the work formerly done by the plaintiff for Sales Galore Pty Limited. He then increased that figure by an amount to factor in that Mr Sidoni's conversion of leads into actual contracts was in the order of 1 in 5 compared to the plaintiff's conversion rate of about 1 in 3.5. It was on this basis that, before any deductions were made, Mr Furey calculated average commission revenue of $187,636 per annum.

1. The deductions that were made were the expenses of Albion Way Pty Limited, superannuation guarantee forgone, taxation, the prescribed discount rate of 5 per cent and 15 per cent for vicissitudes.

1. Mr Priestley referred to the amount of the gross income of Albion Way Pty Limited that was attributable to "sales of goods and services". This was the figure that represented the commission revenue generated by the plaintiff's work for Sales Galore Pty Limited. In the 2005 tax year the gross income from the provision of services was $70,936. In 2006 it was $54,376; in 2007, $56,238; and in 2008, $73,549. That is vastly different to the figures calculated by Mr Furey with his method that ignored past earnings.

1. The plaintiff's personal tax returns for the four years prior to the accident reflect an average assessable income of about $15,000 per annum. However, Mr Priestley fairly acknowledged that "because of the mysteries of assessing business income and deductions for tax purposes, his true earning capacity and even his true earnings were greater than this" (written submissions at [38]).

1. When he recommenced work in his new role in about mid-2009, the plaintiff was earning $500 per week. According to Mr Capenecas, that was increased in about the middle of 2010 to $750 per week. The latter is little different in net effect to the gross commission income derived in the four years prior to the accident.

1. Mr Priestley's submission was that a compromise was called for and that $100,000 was an appropriate figure (14.4.11 at T6).

1. I am not satisfied that this is a case in which past events provide appropriate guidance about the future: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at [7] - [8] per Gleeson CJ, Gummow, Kirby and Hayne JJ. With respect to Mr Priestley, I prefer the plaintiff's approach. I acknowledge the stark difference in the figures derived in the competing analyses. The fact remains, however, that the role played by the plaintiff has been taken over by a man with at least equal and possibly less skill than he had. There was no challenge to the evidence as to the commissions that Mr Sidoni had generated. That seems to me to be a fair assessment of the likely commissions that the plaintiff would have generated with the expansion of the enterprise that he had promoted.

1. The greater scope of the work that Sales Galore Pty Limited subsequently came to offer seems to be the most likely explanation for the difference in the prior earnings of the plaintiff and the substantially greater subsequent earnings of Mr Sidoni. It must be borne in mind that the previous work that Sales Galore engaged in was in small scale constructions. The contracts subsequently won by Mr Sidoni in the period for which data is available (October 2008 to June 2010) were primarily in five figure sums but a number of them were in six figure sums. It is safe to assume that the value of contracts won by the plaintiff prior to his accident, when the work was confined to light constructions, was significantly less. Indeed, the average value appears to have been in the order of $15,000, whereas the average value of contracts won by Mr Sidoni is many times more than that. The plaintiff's commission rate was in the range of 8 per cent to 10 per cent. Mr Sidoni's commission rate averaged 8.5 per cent which is not significantly different.

1. Accordingly, I am of the view that the earning capacity lost by the plaintiff as a result of the accident can be measured on the basis of the commission earnings of Mr Sidoni. That seems to be the best measure of the plaintiff's most likely future circumstances but for the injury: s 13 Civil Liability Act .

1. I am satisfied as to the appropriateness of most of the assumptions made in Mr Furey's calculations. That includes an assumed retirement age of 67. I note that he has taken into account the 5 per cent discount and made an allowance of 15 per cent for vicissitudes. There was no real dispute about it but I also record that I am satisfied that the plaintiff's economic prospects as a consequence of the accident are broadly the same as they have been over the past two years or so; that is, his actual earning capacity in the future is not expected to be significantly different.

1. There is, however, one aspect of Mr Furey's analysis with which I do not agree and that relates to the comparison of the lead conversion rates of Mr Sidoni and the plaintiff. The plaintiff's conversion rate was measured on the contracts he secured for Sales Galore in relation to light construction projects. Mr Furey was asked to proceed upon an assumption that he would have had the same conversion rate in respect of the full construction projects that have been part of the work that Mr Sidoni has performed. It may well be that the plaintiff was more effective in achieving sales than Mr Sidoni but there may well be factors which relate to the different nature and scope of the projects themselves that have a bearing upon conversion rates. In the end I am not persuaded that the assumption that the plaintiff would have had a greater conversion rate than Mr Sidoni is justified. Past and future net income loss should be recalculated without this assumption.

1. The foregoing is not to completely dismiss the evidence about the relative attributes of the plaintiff and the man who has assumed his role because of the accident. I accept the evidence of Mr Capenecas which was to the effect that the plaintiff has energy, enthusiasm, work ethic and skill that exceed those of Mr Sidoni. Whilst I have said that I regard it as appropriate to calculate lost income upon an assumption that the plaintiff would have had an earning capacity the same as Mr Sidoni, I am also of the view that there should be buffer to compensate for the lost opportunity to derive increased earnings. There is support for taking this approach to the different capacities of the plaintiff and Mr Sidoni, as opposed to the approach taken in Mr Furey's calculations of factoring in the relative conversation rates. Mr Campbell conceded that the prospect that, in the future, the plaintiff "would have ... done better than Mr Sidoni (is) ... very difficult ... to mathematically calculate" (14.4.11 at T21.46).

1. There is an additional factor to take into account. The calculations made by Mr Furey include a deduction for the plaintiff's present level of income. I am satisfied, however, that the long term security of the plaintiff's present employment is not assured. He is performing a job that is an amalgamation of tasks previously performed by others. It is, in effect, a job that was created specially for him largely out of the goodwill of Mr Capenecas at a time when it was hoped that he would eventually be able to return to his former role (T74.25). I am satisfied from Mr Capenecas' evidence that there is a reasonable possibility that this is not a position that the plaintiff will be able to remain in until retirement age.

1. Mr Campbell's submission was that a $100,000 buffer should be allowed for the two contingencies: the lost opportunity to derive increased earnings and the prospect that the plaintiff will not retain his present employment. I am satisfied, as well, that if the present employment is lost, the plaintiff's prospects of obtaining alternative employment at an equivalent level of income are far from assured. I accept the submission.

Superannuation

1. Mr Furey also calculated that there should be an amount allowed for superannuation guarantee loss of $35,428 for the past and $162,956 for the future. The calculations take into account the proposed increase of the superannuation guarantee rate from the present 9 per cent to 12 per cent on an incremental basis between 2013-14 and 2019-20.

1. It was submitted for the defendants that s 15C Civil Liability Act refers to a percentage of damages payable. However, Mr Campbell drew attention to the resolution of such an issue in Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 where it was held by Basten JA, Allsop P agreeing, that s 15C is to be construed as referring to a percentage of gross earnings. That is how Mr Furey appears to have approached the calculation.

1. Otherwise there was no submission that an award under this head should not be made. The calculations will need to be updated.

Conclusions as to damages

Non-economic loss	$225,000.00
Past out of pocket expenses	$52,043.89
Future medical treatment	$40,000.00
Past domestic assistance
Gratuitous attendant care for 9 months at 21 hours per week	To be calculated
Subsequent gratuitous attendant care until judgment at 7 hours per week	To be calculated
Commercial domestic assistance from February 2010 at $400 at 6 weekly intervals until judgment	To be calculated
Future domestic assistance
Domestic assistance at 2 hours per week	To be calculated
Handyman, gardening and maintenance at 1 hour per week	To be calculated
Past and future income and superannuation loss
Past and future income loss without assumption concerning different lead conversation rates	To be calculated
Loss of opportunity to significantly increase earning capacity and allowance for prospect of not maintaining present employment	$100,000.00
Past and future superannuation guarantee loss	To be calculated

Orders

(1)   Judgment for the plaintiff in a sum to be calculated.

(2)   The defendants are to pay the plaintiff's costs as agreed or assessed. Liberty to apply within 14 days if any alternative order is sought.

(3)   The parties are to confer with a view to agreeing calculations as to damages in accordance with these reasons for judgment.

(4)   Plaintiff to file agreed short minutes of order.

(5)   In the event that there is any disagreement, the parties are to approach my associate with a view to settling a timetable for written submissions.

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Decision last updated: 09 August 2011