Hendrex v Keating - [2016] TASSC 20

[2016] TASSC 20

COURT: SUPREME COURT OF TASMANIA

CITATION: Hendrex v Keating [2016] TASSC 20

PARTIES:  HENDREX, Dale John
  v
  KEATING, Matthew
  KEATING, Lisa

FILE NO:  441/2011
DELIVERED ON:  13 April 2016
DELIVERED AT:  Hobart
HEARING DATES:  16 – 18, 21 – 23, 25, 30 September, 2 October 2015
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Damages – Particular awards of general damages – Tasmania – Brain, wrist and shoulder injuries – Award of $210,000 general damages for pain and suffering and loss of amenities.

Aust Dig Damages [61]

Industrial Law – Work health and safety – Duties and liabilities – Duties – Management or control of workplace – Whether premises made available to contractor as a workplace – Paid contractor and unpaid volunteers helping householder to replace roof.

Workplace Health and Safety Act 1995 (Tas), s 15(2)(a).

Aust Dig Industrial Law [3451]

Industrial Law – Work health and safety – Duties and liabilities – Duties – Construction work duties – Other cases – Ladders – Use for purpose designed for – Construction in accordance with Australian Standard.

Workplace Health and Safety Regulations 1998 (Tas), reg 94.

Aust Dig Industrial Law [3466]

Torts – Negligence – Essentials of actions for negligence – Duty of care – Reasonable foreseeability of damage – Particular cases – Duty of occupier – Householder providing ladder to independent contractor – Ladder not fully extended or secured.
Civil Liability Act 2002 (Tas), s 11.
Aust Dig Torts [32]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read SC, T Cox
             Defendants:  S Taglieri
Solicitors:
             Plaintiff:  Slater and Gordon
             Defendants:  Dobson Mitchell & Allport

Judgment Number: [2016] TASSC 20
Number of paragraphs: 174

Serial No 20/2016
File No 441/2011

DALE JOHN HENDREX v MATTHEW KEATING and LISA KEATING

REASONS FOR JUDGMENT BLOW CJ

13 April 2016

In July 2008 the defendants, Matthew and Lisa Keating, were married and living together in a house that they owned in Pybus Street, Snug. Mr Keating made arrangements to remove and replace the roof cladding at the front of their residence. He arranged for a group of friends to help him do that work. That group included the plaintiff, Dale Hendrex. He arranged to pay Mr Hendrex for his work, but the others volunteered to work without payment. The work commenced on the morning of 10 July 2008. There was a carport next to the front of the house. Mr Keating had a ladder, which he set up at the front of the carport so that the workers could travel to and from the roof of the house via that ladder and the roof of the carport. After some hours' work, the plaintiff set out to descend from the carport using the ladder, fell, landed on a concrete driveway, and was seriously injured. This is an action for damages in respect of his injuries.
The plaintiff is claiming damages on several bases:
·     Negligence.
·     Breaches of contract.
·     Breaches of statutory duties which he contends the defendants owed to him pursuant to the Workplace Health and Safety Act 1995 and the Workplace Health and Safety Regulations 1998.
Liability is disputed. The defendants contend that the fall was caused, or at least contributed to, by the plaintiff's own negligence. There is also a substantial dispute as to how much harm the plaintiff has suffered as a result of his fall. He contends that he is substantially and permanently incapacitated. The defendants contend that he has substantially recovered and that he is a malingerer.

The plaintiff's fall

The plaintiff suffered a head injury when he fell, and has no memory of the fall. No witnesses gave evidence that they saw him fall or land. The evidence as to what happened is entirely circumstantial.
The ladder belonged to Mr Keating. It was his only ladder. It could be erected and used in two positions. One option was to erect it so that, when viewed from the side, it resembled the letter A. Alternatively, it could be erected as a straight extension ladder, more or less doubling the height that could be reached when it was in the A position. On the day in question, Mr Keating erected it in the A position in front of the carport roof. The top of the ladder was then about 40 centimetres lower than the carport roof. No one secured the ladder to a fixed object in any way. It was standing on level clean concrete, in the most stable position possible. However the task of descending from the carport roof was somewhat awkward. One possibility was for the individual to get onto his hands and knees and reverse off the carport roof, placing one foot on the ladder, and then moving the other foot onto the ladder. Another possibility involved sitting on the carport roof facing towards the ladder, placing one foot on it, and turning around as one left the carport roof and began to descend.
The defendants contend that the plaintiff did not descend in either of those ways, but that he sat on the carport roof and then began descending the ladder frontwards, facing the street, with his back to the ladder and the carport. The plaintiff gave evidence that he sometimes descended ladders that way prior to the accident.
There were four men who worked on the re-roofing of the house that day – the plaintiff, Mr Keating, Shane Lockley, and Roger Haugaard-Bush.
Mr Haugaard-Bush lived nearby. He had had trouble starting his car that morning, and had left it with the motor running in order to charge its battery. He went home to turn the ignition off, heard a commotion, went back, and saw the plaintiff on the ground. Mr Lockley had already moved him into the recovery position.
Mr Lockley gave evidence that he had come down from the roof for lunch, leaving the plaintiff alone behind him on the roof. He said that he went to get a coffee, heard a crash as the ladder hit the ground, looked, and saw both the plaintiff and the ladder on the ground. He said that the plaintiff was "on his back, more to his right side, facing the road". He saw blood on the back of the plaintiff's head and on the ground.
Mr Keating said that he saw the plaintiff coming down the ladder shortly before his fall, "facing the wrong way, so rather than coming down backwards he was coming down the opposite way … facing the end of the drive". He said that the plaintiff was on the second or third step from the bottom of the ladder when he looked away from the plaintiff, and that he then heard a thud. He said he then turned around and saw the plaintiff lying in the driveway with blood oozing towards him.
The records of the Royal Hobart Hospital relating to the plaintiff were tendered in evidence. They include an ambulance report, written on the day of the plaintiff's fall, which says that he "fell front ways off ladder onto outstretched arms and R occiput". I infer that the information that he "fell front ways" was provided by Mr Keating on the day. The report noted a fracture of the left wrist and a possible fracture of the right wrist. It may have been inferred by an ambulance officer from those injuries that the plaintiff fell onto his outstretched arms.
There are a number of reasons for me to approach Mr Keating's evidence about the fall with considerable caution. He was not an impressive witness. Under cross-examination a number of his answers were evasive and argumentative. His evidence was given some seven years after the day in question. He might well have been tempted to try to shift some of the blame for the accident away from himself. His evidence about the timing of the fall was demonstrably wrong. He said that the accident occurred about an hour after work commenced, when those present were about to have morning tea. However the evidence establishes that an ambulance was called almost immediately after the fall, and the ambulance report shows that that call was received at 11.50am. That is consistent with Mr Lockley's evidence that the men were coming down for lunch, and with evidence given by the plaintiff that his last memory was of heading back up the ladder after morning tea.
However Mr Keating's evidence of the plaintiff descending the ladder frontwards was unshaken and uncontradicted. In the light of the plaintiff's concession that he sometimes descended ladders that way and the reference in the ambulance report to him falling "front ways", I think I should accept his evidence as to that point. I am satisfied on the balance of probabilities that the plaintiff elected to descend from the carport roof by sitting on the edge of it, moving onto the ladder without turning, and descending the ladder without turning to face the ladder. I infer that he lost his balance on the way down, causing the ladder to fall over, and causing himself to fall onto the concrete driveway, hitting his head and suffering other injuries.

Statutory duties

As I have said, the plaintiff contends that the defendants owed statutory duties to him pursuant to both the Workplace Health and Safety Act ("the WHS Act") and the Workplace Health and Safety Regulations ("the WHS Regulations").
The only provision in the WHS Act relied upon by the plaintiff as imposing a statutory duty is s 15. He contends that that section was applicable to his case by virtue of s 15(2)(a), which read as follows:
"(2) This subsection applies to —
(a) premises which have been made available to persons, other than employees of the person in control of the premises, as a workplace or the means of access to or egress from those premises …".
The plaintiff contends that, as a result of that provision applying, the defendants owed him a duty pursuant to s 15(1) of the WHS Act, which read as follows:
"(1) A person who has control of any premises, plant, substance or temporary public stand to which subsection (2) applies must ensure so far as is reasonable practicable that the premises and the means of access to or egress from the premises, or the plant, substance or temporary public stand are safe and without risk to health and safety."
The subsection went on to provide for fines as penalties for its contravention.
The word "workplace" was defined in s 3(1) of the WHS Act as follows:
"workplace means any premises or place (including any mine, aircraft, vessel or vehicle, where an employee, contractor of self-employed person is or was employed or engaged in industry".
The word "industry" was also defined in s 3(1), as follows:
"industry means any industry, trade, business, undertaking, profession, calling, function, process or work in which persons are or were employed or engaged and includes the use of plant in an educational establishment".
The plaintiff contends that the defendants' house, on the day in question, constituted a workplace; that the defendants had control of the premises; and that they made the premises available to him as a workplace. However the defendants contend that their premises were not made available to the plaintiff as a workplace within the meaning of s 15(2)(a).
Counsel for the defendants relied on published clause notes relating to the Workplace Health and Safety Bill 1995. In those clause notes, at 11, the following passage appeared:
"Clause 15 Persons in Control of Workplaces
This clause deals with problems that may arise because an employer's workplace may be in premises which is owned by another person and the employer is unable to make changes except by reference to the owner. The owner [or person in control] must ensure that premises (which have been made available as a workplace to an employer), including the means of access and egress thereto, are safe and without risk to health."
It would thus appear that s 15 was enacted in order to impose duties upon the landlords of business proprietors. However I need to consider whether, because of the wording of the section, it extended so far as to impose a duty upon the defendants in relation to the work done by the plaintiff at their home.
For some years, up to and including the day of his fall, the plaintiff carried on a one-man business, working irregularly rather than continuously, mainly doing tiling and roofing work. The business was registered for GST purposes. It appears to have been known as either D & M Hendrex Tiling or D & M Roofing and Tiling. The initials stand for Dale and Marguerite – the first names of the plaintiff and his wife. I am satisfied that Mr Keating engaged him, on behalf of both defendants, to work on the re-roofing of their house as an independent contractor. There is no suggestion that any arrangements were made for the deduction of income tax instalments, the payment of superannuation contributions, or any of the arrangements that one would ordinarily associate with an employer-employee relationship. Mr Keating was masterminding the re-roofing project. As I have said, there was no arrangement for the other men who assisted him that day to receive any payment for their work.
In the circumstances, I do not think it can be said that the defendants "made available" their premises or any part thereof to the plaintiff or anybody else as a "workplace". The words "made available" imply an arrangement, perhaps by way of lease or licence, whereby somebody, usually if not always a business proprietor, takes premises over for the purposes of some sort of work. In this case, there is no suggestion that the plaintiff was given control of the premises or any part of them, nor that he was given permission to move at will about the premises or any part of them. Mr Keating was present at all times, controlling the project, and in a position to dictate where each of his visitors did or did not have permission to go, and what each of his visitors had or did not have permission to do for the purpose of the re-roofing. It must follow that the defendants did not make available any part of the premises within the meaning of s 15(2)(a), and that s 15 therefore did not operate to impose any duty upon them.
The only provision in the WHS Regulations relied on by the plaintiff as imposing a duty is reg 94. That regulation read as follows:
"94 Ladders
An accountable person must ensure that any ladder used in the workplace is —
(a) used for the purpose it was designed for; and
(b)except as otherwise approved by the Director, constructed in accordance with AS 1892.
Penalty:
Level 2."
In reg 94(b), "AS 1892" referred to an Australian Standard relating to portable ladders. The plaintiff contends that that standard was not complied with in two respects:
· He contends that a provision in the Standard required the top of the ladder to extend above the level of the carport roof by not less than one metre.
· He contends that that provision also required the ladder to be secured.
Part 5 of AS 1892 dealt with the selection, safe use, and care of portable ladders. Section 2 of Pt 5 was entitled "Common Guidelines". The plaintiff relied on one of the clauses in that section, cl 2.6, which provided as follows:
"2.6 HEIGHT ABOVE LANDING
Where a ladder is used to gain access to a working platform or roof, the top of the ladder should extend above the level of the working platform or roof by a distance of not less than 1 m. The ladder should be secured to prevent slipping before the user ascends onto the work platform or roof. The user should take care when ascending from the ladder to the work platform or roof, or when descending from the work platform or roof to the ladder, to avoid tipping the ladder over or causing the base of the ladder to slide."
If the ladder in question had been used as an extension ladder, rather than in the A position, and had been secured, then it could have been used in accordance with the guidelines in cl 2.6. However there was nothing about the design or construction of the ladder that made it unsuitable for use by men climbing up or down between the concrete path and the carport roof. It was the way in which the ladder was used – in the A position and unsecured – that resulted in the guidelines in cl 2.6 not being complied with. Regulation 94 was a penal provision that was concerned with the design and construction of ladders. As to reg 94(a), I am satisfied that the ladder was used for a purpose that it was designed for. It was designed to be used for people to climb to and from a platform at the height of the carport roof. Regulation 94(a) was not contravened as a result of it being used in the A position instead of the extension ladder position.
In relation to reg 94(b), I do not think it can be said that the ladder was not "constructed" in accordance with AS 1892. In my view reg 94(b) must have been intended to prohibit the manufacture of a ladder to a design that did not comply with AS 1892, not to the manner in which a ladder was set up. Securing a ladder so that it cannot slip, perhaps by means of a rope, can hardly be said to be part of its construction. And when a commercially produced portable ladder is erected at a place where it is to be used, I do not think it can be said that the ladder is "constructed" at that place in the ordinary sense of the word. "The language which has actually been employed in the text of legislation is the surest guide to legislative intention": Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. There is no reason to give the words of reg 94 a wider meaning than their ordinary literal meaning, especially since the provision was a penal one.
It follows that the plaintiff's claims based on alleged breaches of statutory duty must fail.

Breach of contract and negligence

I infer that at all material times Mr Keating, the first defendant, was acting not just on his own behalf but also as the agent of his wife, the second defendant. It follows that she must be liable for any breach of contract and/or negligence on his part.
Although the plaintiff was an independent contractor who did roofing work in the course of his business, he contends that the defendants owed him a duty, both in contract and in tort, to take reasonable care for his safety. The defendants were the occupiers of the premises. Mr Keating provided the ladder and set it up. That is to say, he took upon himself the roles of deciding upon the means of access to the roof, and providing the means of access to the roof.
Issues as to the existence and scope of a duty to take care for the safety of an independent contractor were considered by the High Court in Stevens v BrodribbSawmilling Co Pty Ltd (1986) 160 CLR 16. In that case, Mason J (as he then was) said, at 31:
"Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system."
In Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [103], Allsop P (as he then was), with whom Simpson J agreed, listed a number of factors relevant to the question of whether one should impute a legal duty to take reasonable care to avoid harm or injury. The factors that I consider to be relevant in this case are the following:
·     The foreseeability of harm.
·     The nature of the harm alleged.
·     The degree and nature of control able to be exercised by the defendants to avoid harm.
·     The degree of vulnerability of the plaintiff to harm from the defendants' conduct, including the capacity and reasonable expectation of the plaintiff to take steps to protect himself.
·     The degree of reliance by the plaintiff upon the defendants.
·     Any assumption of responsibility by the defendants.
·     The proximity or nearness in a physical sense of the plaintiff to the defendants.
·     The nature of the activity undertaken by the plaintiff.
·     The nature or the degree of hazard or danger liable to be caused by the defendants' conduct.
·     Knowledge by the first defendant, Mr Keating, that his conduct might cause harm to the plaintiff.
·     The nature and consequences of any action that could be taken to avoid the harm to the plaintiff.

It was reasonably foreseeable that any person travelling to or from the roof of the house that day via the ladder and the carport roof could fall, and be injured as a result. It was reasonably foreseeable that the ladder might tilt if it were not secured. It was reasonably foreseeable that the risk of a fall would be exacerbated if the top of the ladder were below the level of the carport roof, because a person descending to the ladder, or attempting to, would have to either come down backwards, with little or no view of the ladder, or come down forwards, at least initially, with no convenient way of hanging onto anything, and with a risk of instability if he decided to turn around, or if he decided not to. It was reasonably foreseeable that a fall onto the concrete path could have caused severe injuries. Mr Keating had assumed responsibility for providing and erecting the ladder. He remained present, and able to assess its adequacy or inadequacy, as erected, as a means of travelling to and from the carport roof. It was possible to obviate the foreseeable risks by erecting the ladder in the extension ladder position instead of the A position, and by securing it with a rope. The plaintiff was in just as good a position as Mr Keating to assess the risks involved, and had a capacity to take care for his own safety.
In the circumstances, I am satisfied that the defendants owed the plaintiff a duty to take reasonable care to protect him from harm when he was travelling up to and down from the carport roof. His capacity to take care for his own safety should not, in the circumstances, be regarded as a factor so significant as to result in a duty of care not being imputed to the defendants. This was not a situation in which, because of his experience as a professional roofing contractor, he had any special skills of any relevance.
The question whether the defendants breached their duty of care is governed by ss 11 and 12(a) of the Civil Liability Act 2002. Those provisions read as follows:
"11 General principles
(1)   A person does not breach a duty to take reasonable care unless —
(a) there was a foreseeable risk of harm (that is, a risk of harm of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk.
(2)   In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things):
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the potential net benefit of the activity that exposes others to the risk of harm.
(3)   For the purpose of subsection (2)(c), the court is to consider the burden of taking precautions to avoid similar risks of harm for which the person may be responsible.

12 Other principles
In a proceeding relating to liability for breach of duty —
(a) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done. …".

The risk that someone might fall from the ladder onto the concrete driveway and be injured was reasonably foreseeable. Because the top of the ladder, erected in the A position, was below the level of the carport roof, anyone using the ladder to descend from that roof had to undertake an awkward manoeuvre. Whether the individual chose to leave the carport roof facing the carport or facing away from the carport, the necessary manoeuvre was an awkward one which involved a risk of losing balance and falling. I am satisfied that that risk was not insignificant. Under cross-examination, Mr Keating agreed that if he had known that his "mates" were using the very top step of the ladder and the first step below it, he would have straightened the ladder out and secured it. The reference to straightening it out was obviously a reference to converting it from the A position to the extension ladder position. In the circumstances, I am satisfied on the balance of probabilities that a reasonable person in the position of Mr Keating would have taken precautions to avoid the risk of a man falling and suffering injury by erecting the ladder in the extension ladder position, and by securing the ladder, at or about carport roof level, with a rope or something similar. The taking of such precautions would have been simple, would not have been time consuming, and would have obviated a small but obvious risk of someone suffering an injury that could have been quite severe. It follows that I am satisfied that Mr Keating breached his duty to take reasonable care for the plaintiff's safety.
I next need to consider whether Mr Keating's breach of duty was a cause of the plaintiff's injuries. That issue is governed by s 13 of the Civil Liability Act, which imposes a "but for" test: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 429 at [42]-[45]; Strong v Woolworths Ltd (2012) 246 CLR 182 at [18]. Section 13(1) provides as follows:
"13 General principles
(1)   Prerequisites for a decision that a breach of duty caused particular harm are as follows:
(a)   the breach of duty was a necessary element of the occurrence of the harm ('factual causation');
(b)   it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ('scope of liability')."
But for (a) Mr Keating's failure to erect the ladder as an extension ladder, with its top well above the carport roof, and (b) his failure to secure the ladder with a rope, I infer that the plaintiff would have descended the ladder in a conventional way, stepping onto a rung that he could easily see at or about the level of the carport roof, and facing the ladder as he descended. When the ladder was in the A position below the carport roof, it would have been natural for anyone descending from the roof to have at least contemplated starting from a position sitting on the edge of the roof, with the top of the ladder visible below, rather than backing off the roof into mid-air, and possibly having difficulty seeing the top of the ladder. If the ladder had been erected as an extension ladder, there would have been no reason for the plaintiff or anybody else to have contemplated descending it without facing it. On that basis, I am satisfied that the "but for" test has been satisfied.
In relation to s 13(1)(b), which concerns the scope of liability, s 13(4) requires me to consider "whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty". This involves application of policy considerations in making a judgment as to whether legal responsibility should attach to a defendant's conduct: Strong v Woolworths (above) at [19]. In the circumstances of this case, factual causation having been established, I think it is clearly appropriate that the scope of the defendants' liability should extend to the harm that the plaintiff suffered.
It follows that the plaintiff has a cause of action in negligence against the defendants, and is entitled to recover damages from them in respect of his injuries.
It makes no difference whether he has a concurrent right to damages for breach of contract. There is no suggestion that the defendants owed him a contractual duty of care that differed in its scope from their duty of care in tort. If there was a contractual duty of care, that could not possibly result in the plaintiff recovering a greater sum by way of damages than is recoverable in tort. The plaintiff contends that his contract with the defendants contained an implied term requiring them to take reasonable care for his safety. One of the prerequisites for the implication of a term is that it is necessary to give business efficacy to the contract: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. Because the defendants owed the plaintiff a duty of care in tort, I am inclined to think that, without the suggested implied term, the contract would not have lacked business efficacy, and that such a term therefore should not be implied, but I have not reached a concluded view as to this point.

Contributory negligence

The defendants pleaded that there was contributory negligence on the plaintiff's part in various respects, but not all of those allegations were pursued at the trial. The defendants' contentions at the end of the trial as to contributory negligence concerned the plaintiff (a) using the ladder when its top was below the level of the carport roof; (b) using the ladder when it was not secured; and (c) going down the ladder with his back to it.
There was no direct evidence at the trial that the plaintiff knew on the day of his fall that the ladder could be erected as an extension ladder. Under cross-examination, he gave evidence to the effect that he knew that the ladder was too short; that Mr Keating would have known that the ladder was too short; that Mr Keating was too lazy to go and get a ladder that was long enough; that he did not say anything about the ladder being too short because he did not want to wait for hours for Mr Keating to get his act together; that he would have walked off if Mr Keating had not been a friend; and that he got up the ladder because he was on a time limit, wanting to get home to his wife and children after she finished work.
A ladder was tendered as an exhibit at the trial. Before it was tendered, it was in the courtroom while the plaintiff was giving evidence. He gave evidence that that ladder was not the ladder that was used on the day. I have come to the conclusion that it was. The plaintiff could easily have been mistaken. He had not seen the ladder in question for some seven years, and had suffered a serious head injury. Junior counsel for the plaintiff led evidence from Mr Lockley identifying the ladder in the courtroom as the ladder used on the day, and then tendered the ladder as an exhibit. Mr Keating gave evidence that it was his only ladder. I am satisfied that the ladder identified by Mr Lockley and Mr Keating was the ladder used on the day, and that the plaintiff's evidence to the contrary was incorrect.
During his cross-examination, the plaintiff could see the ladder from the witness box. When insisting that it was not the ladder used on the day he said, "… that one looks like it's fully extendable …".
The ladder has a metal fitting on each side so that it can be secured in the A position. At another level, it has a metal fitting on each side so that it can be secured in the extension position. I expect that any tradesman, or anyone who has worked with a variety of ladders, would easily recognise that the ladder can be used as an extension ladder. It also has a series of small diagrams on one side of it, a little above knee level, one of which shows that the ladder can be used in the extension position to reach a height of four metres.
The plaintiff had a duty to take reasonable care for his own safety. By virtue of s 23(1) of the Civil Liability Act, the same principles that are applicable in determining whether a person has been negligent must also be applied in determining whether a person who has suffered harm has been contributorily negligent. The required standard of care is that of a reasonable person in the position of the injured person: s 23(2)(a). The matter is to be determined on the basis of what that person knew or ought to have known at the time: s 23(2)(b).
The plaintiff may or may not have adverted to the risks involved in using a ladder whose top was below the carport roof, and which was not secured. If he had been taking reasonable care for his own safety, he certainly ought to have looked at the ladder to see whether it was extendable, and would immediately have realised that it was. He at least ought to have known that the ladder could have been made safe by extending it and securing it. He could and should have either asked Mr Keating to take those steps or taken them himself. There is no reason to think that Mr Keating might have refused to take those simple steps if the plaintiff had made clear that he wanted them taken. I am satisfied on the balance of probabilities that the plaintiff would not have suffered injury but for his negligence in using the ladder when it was not in the extended position, using the ladder when it was not secured, and coming down the ladder with his back to it.
By providing a ladder that was too short and not secured, Mr Keating departed from the standard of care applicable to him to about the same degree as the plaintiff departed from the standard of care applicable to him by using the unsecured ladder in that position. However the plaintiff's negligence was greater than that of Mr Keating because he increased the level of danger to himself by going down the ladder frontwards, with nothing to hang on to. It follows that his damages should be reduced by more than 50%. In all the circumstances, I think a 60:40 apportionment of liability is just and equitable. That is to say, the plaintiff's damages should be reduced by 60% because of his contributory negligence.

Damages – introduction

The plaintiff was 36 years old on the day of his fall in 2008, and was 44 years old at the time of the trial. He and his wife have been married since 1995. They have two children – a son born in 1996 and a daughter born in 2000. They were living in the Hobart suburb of Kingston when the plaintiff was injured. They moved to the Hervey Bay area of Queensland in May 2011, and from there to the Gold Coast in early 2014.
The plaintiff has not done any paid work since his fall. He contends that he has been substantially incapacitated as a result of damage to both sides of his brain, from which he has not recovered; wrist injuries, worse on the left than the right; an injury to his right shoulder, and a related chronic pain problem; and an assortment of symptoms resulting from those injuries. His wife has taken on the role of a carer, looking after him day and night.
On the day of his fall, as I have said, the plaintiff was taken to hospital suffering from a head injury and fractures of both wrists. He also suffered rib pain and shoulder pain. He spent seven days at the Royal Hobart Hospital, and then discharged himself in defiance of medical advice.
However he continued to receive treatment for his injuries at the Royal Hobart Hospital as an outpatient until he moved to Queensland in 2011. He also saw his general practitioner frequently during the period between his discharge from hospital and his move to Queensland. On 9 August 2010 he presented at the emergency department of the Royal Hobart Hospital as a result of the sudden onset of symptoms that were described by a doctor as "a severe headache, neck stiffness, confusion and slurred speech". The doctor noted a history of paralysis of the right side involving both his arm and legs, and numbness of the left leg. The doctor noted that the episode lasted for several hours and then resolved.
After moving to Queensland, the plaintiff continued to see general practitioners frequently. On 10 March 2014 there was another incident that led to him being taken to the Gold Coast Hospital by ambulance and spending three days there. According to the hospital records, he woke up unusually late, and his wife felt that he was not talking properly. He was making noises, was unable to say her name, and was drooling. CT and MRI scans were taken. After viewing the MRI results, the doctors ruled out the possibility that the plaintiff had had a stroke. A radiologist reported that there was no evidence of an acute cerebral infarction. The doctors thought the plaintiff may have had a seizure, but could not arrive at a diagnosis in respect of the symptoms that he had suddenly experienced.
In November 2014 the plaintiff began seeing a psychologist, Mr Coucill, about symptoms that Mr Coucill described as "depression, anxiety and adjustment issues". By 9 July 2015 he had seen Mr Coucill 14 times for psychotherapy treatment. That treatment was continuing at the time of the trial.

The plaintiff's wrist and shoulder injuries

The plaintiff gave evidence about his wrist and shoulder symptoms. He said that he experienced pain in the left wrist, but that his grip with the left hand had improved over a few years, and that his medication helps the wrist pain a little. He described having to adopt unusual physical positions to work on a car. He gave evidence of pain in the right shoulder, extending down the right arm. He said that without medication he would not be able to do anything. He described undertaking an assortment of physical work on good days, including operating a ride-on lawnmower, operating a whipper snipper, putting out rubbish, vacuuming, mopping and using a dishwasher. He said that the pain in the right arm sometimes wakes him at night. He said that one factor leading to the move to Queensland in 2011 was that he suffered aches and pains in the Tasmanian winter. All of that evidence was essentially unchallenged. However his evidence relating to the effects of his head injury was more controversial.
There was little in dispute at the trial as to the nature and extent of the plaintiff's wrist and shoulder injuries. Dr David Douglas, a consultant occupational physician, gave evidence for the plaintiff at the trial. He saw the plaintiff for the purposes of this case in January 2012 and June 2015. Reports as to his assessments of the plaintiff on those occasions were tendered. What he wrote about the wrist and shoulder injuries was unchallenged. It appears from those reports that the plaintiff made a good recovery from the fracture of his right wrist, and that his right arm was virtually fully functional in 2012. However the injury to the left wrist involved a comminuted fracture of the left radius with articular damage which resulted in malunion, ulnar variance deformity, and restricted movement in the left forearm and wrist. In 2012 Dr Douglas measured the reduction in movements affecting the left forearm, and assessed a 39% upper extremity impairment using the American Medical Association Guides to the Evaluation of Permanent Impairment, 4^th ed. In June 2015 Dr Douglas reported an improvement in the range of movement of the left forearm and left wrist, and assessed only a 20% impairment of the left arm.
In 2012, Dr Douglas diagnosed a rotator cuff injury to the right shoulder resulting from the fall. He reported that that injury resulted in ongoing pain and restricted movement. He assessed an 8% upper extremity impairment resulting from that injury at that time. In June 2015 he reported that the shoulder impairment had worsened, and assessed a 16% upper extremity impairment in relation to the reduction of movement of that shoulder.
One of the defendants' expert witnesses was Dr Blair Christian, another consultant occupational physician. He assessed the plaintiff's arm impairments in January 2012, and concluded that he had a 35% impairment of the left arm and a 10% impairment of the right arm at that time. I regard his evidence in relation to the arm and shoulder injuries as reliable. I will comment on the rest of his evidence later.
The plaintiff has a chronic pain problem associated with his right shoulder. At the best of times he has a dull ache, as well as a reduced range of movement to that shoulder. His shoulder symptoms are worse in wet or cold weather. He has had some injections into the shoulder, and they have given him temporary relief.

The plaintiff's head injury

There is no doubt that the plaintiff's principal injury was his head injury, which involved an injury to the brain. A CT scan on the day of the fall showed a subdural haematoma and multiple underlying contusions in the left temporal lobe, as well as contusions in the right frontal and temporal lobes. On admission, his Glasgow Coma Score was 13 out of 15. He was orientated to place, day and year, but not to month or events. He was an unco-operative patient. He was fitted with a cervical collar, but repeatedly removed it. He was fitted with a soft collar, but insisted on removing that too. It was 4.40am when he left the hospital. When leaving, he abused members of the hospital staff and threatened violence.

He gave evidence about problems with his memory, to the following effect:
·     His memory is so bad that he always carries a laminated card with details including his address and his wife's mobile phone number.
·     He knows that he changed his surname long before his accident, but only knows that because his wife told him.
·     He does not remember first meeting his wife, or their wedding, or their purchase of their house in Tasmania. His wife has told him about these things.
·     He does not remember what his sex life was like before his accident.
·     He does not remember what his relationship with his children was like before his accident.
·     He does not remember school functions, family activities, or his son playing soccer, but he does remember going fishing.
·     He has no memory of the months between his accident in July 2008 and his daughter's birthday in November 2008. After the accident he did not know who his family were. He remembers calling his sister "Mum".
·     He does not remember the names of streets, but he does remember and recognise landmarks. He described his visual memory as his "best thing".
·     He sometimes forgets to have a shower. If he has a shower, he sometimes forgets to wash the shampoo out of his hair.
·     If his wife asks him to go to a shop, she has to write out a list for him.
·     He gets angry about not remembering things.
·     When the family moved from Hervey Bay to the Gold Coast, he remained behind at Hervey Bay for a few weeks on his own while his wife established their new home. During that period he forgot to take a lot of his medication.
·     There are some things from the years before his accident that he does remember. These include trade skills, knowledge about cars, and details of a bitter dispute with his wife's parents.
The plaintiff gave evidence about problems with speech and word finding after his accident. He said that he did not stutter before the accident, but stuttered a lot after coming out of hospital. He also said that he gets tongue-tied, that he muddles words up, that he confuses left and right, that he is not a very good communicator first thing in the morning, and that he has trouble speaking to doctors. At the trial the defendants contended that the plaintiff's speech difficulties pre-dated his fall. There was evidence that he sometimes mispronounced words before his fall, particularly by sounding "th" as "f". As it happens, he represented himself in proceedings in the Magistrates Court several times in the months prior to the fall. An audio recording of those proceedings was tendered as an exhibit on the trial. I have listened to the recording and compared the plaintiff's speech during those proceedings with his speech during the trial of this action. He was extremely unsophisticated, excitable and undisciplined, but he did not seem to suffer from any impairment that affected his speech, and was never lost for words.
A number of the medical witnesses made observations as to the plaintiff's behaviour being impulsive, inappropriate and disinhibited. Those observations are consistent with mine. The plaintiff swore a lot when giving his evidence. I did not attempt to stop him. At one point his counsel asked what he could taste or smell when eating. He replied, "Oh nothing, nothing at all. You could give me a turd to eat and I wouldn't tell you the difference."
There was evidence that the plaintiff is not able to cope well in social situations as a result of being slow in his thinking and having difficulty finding words, with the result that he has a tendency to become overwhelmed, frustrated and angry.
The plaintiff also described continuing problems with headaches. He said that bad days occur perhaps twice a month, but that his headaches are much more frequent. He said that it is the right hand side of his head that aches the most.
He gave evidence of various other matters that are associated with his head injury, or that might be, as follows:
·     He has trouble tying shoelaces.
·     He is sensitive to speed, to such an extent that he might complain when his wife is driving at 60Km/h in a 100Km/h zone.
·     He has lost his senses of taste and smell.
·     His wife usually wakes him at about 10am to take medication. He generally goes to bed at about 7.30pm. On most days he has a snooze. I think he was trying to say that he usually had a "nano nap", but he used the words "Nanna snooze" and "Grandpa snooze".
·     After his accident, he was not steady on his feet to begin with. He still tends to stumble sometimes, and often slips on stairs.
·     He sometimes puts on t-shirts inside out.
·     He can still cook, but his wife needs to supervise him.
·     His wife speaks to the doctors for him, and arranges medical appointments.
·     He does not have any friends on the Gold Coast, though he had a couple of friends at Hervey Bay.
·     He has lost the ability to do things fast, but can still do things like tiling, and cutting down trees.
·     When being assessed by doctors, he sometimes could not keep up with what they were saying to him.
The plaintiff still drives a car. He gave evidence that he has to have annual checks, which are apparently conducted by the Queensland authorities. He only drives short distances, to familiar places. The vehicle has a GPS navigation system, but he does not know how to use it. His wife operates it. He does not drive anywhere new without her. After the incident in March 2014 when he was admitted to the Gold Coast Hospital, he was not allowed to drive for six months.
The plaintiff's wife gave evidence about his various problems. She impressed me as an honest woman who had taken on an enormous task in caring for her injured husband year after year, at the same time as managing the household and looking after two children. It is clear that she accepts that her husband has the many problems that he has described. If he were exaggerating or malingering, I do not think she would be easily deceived. I have no reason to doubt her honesty. Her evidence substantially corroborated the plaintiff's evidence as to the effects of his injuries.
At the trial the defendants relied on surveillance footage of the plaintiff that had been taken on a number of occasions between September 2012 and September 2014. It showed the following:
·     On 3 September 2012 the plaintiff went to a plastics shop in the Hervey Bay area. He was carrying a piece of Perspex. His wife was with him. A conversation took place. The plaintiff drove away with his wife. They went to a medical centre. He emerged with a small paper bag. He drove home with his wife.
·     On 4 September 2012 the plaintiff drove to a Bunnings store, accompanied by another man. A large tube of silicon was purchased. The plaintiff offered to pay for it, but his companion said that he would do so. The plaintiff drove home. His wife opened the gates before he arrived. Later the plaintiff drove the other man to another residence, towing a trailer with a boat on it. There, the plaintiff assisted in the washing of the boat. Afterwards the plaintiff drove the other man away.
·     On 19 April 2013 the plaintiff drove to a rural property, about two minutes' drive from his home, accompanied only by his dog. He removed a whipper snipper and a pair of shoes from the vehicle. Someone else drove his vehicle away. Thereafter, a station wagon with its bonnet up was observed at the rural property.
·     On 20 April 2013 other people, possibly the plaintiff's wife and son, travelled in his vehicle without him.
·     On 18 September 2013 the plaintiff drove his Toyota Hilux utility to a service station about seven minutes' drive from his home, by himself, bought some fuel, and drove for a few minutes to a place where he picked up three other men. They drove for a few minutes to a subdivision construction site. He was seen driving onto that site at about 8.03am. Enquiries were made. He could not be found there. He was next seen driving his vehicle near his home at 3.15pm. He parked on his front lawn. Later he drove away, accompanied by a teenage boy.
·     On 19 September 2013, he was at home during the morning.
·     On 4 September 2014 between 10.50am and 3.16pm he intermittently worked on a car in his garage.
·     On the morning of 5 September 2014 he was seen working on the vehicle in the garage again. He brought in a wheelie bin, or possibly two wheelie bins.
·     On 15 September 2014 the plaintiff drove from his home to the Helensvale Plaza shopping centre, accompanied by his wife. After arriving there he sat down with his wife, smoked a cigarette, visited the Department of Transport, walked back to the vehicle on his own, moved it into a disabled parking space, and rejoined his wife. (His wife gave evidence that she watched him find and move the car, to make sure he did not get lost.) He drove the vehicle, with her in it, to the main entrance of the shopping centre, where he parked again. His wife went to Coles while he waited for her. After she emerged from Coles, he drove her home.
·     On 16 September 2014, the plaintiff drove from his home, with his wife as a passenger, to a high school.
Some of the defendants' medical witnesses considered the surveillance evidence to be very significant. That is why I have given such a thorough summary of it. It did not show the plaintiff doing anything with his left or right arm that he claimed to be unable to do. It is worth noting that the plaintiff did not often go anywhere unaccompanied. His evidence as to his memory problems strongly suggests that he benefited from having passengers who could assist in navigation. As counsel for the plaintiff correctly observed in their closing written submissions, the surveillance footage showed the plaintiff to be "passive in his manner, slow in movement, and generally ponderous in appearance".
The plaintiff's wife gave evidence that he had been working on the one car in the garage for at least three years, and that the project was not finished. She said that he retained some memory of work on cars, but did not remember all he used to know, and had to read books or ask people to get information. She said that he would sometimes buy a part thinking that it would fix a particular problem, but that it would not. She said that he would sometimes buy the same part a number of times. The tempo of his work on 15 September 2014, as depicted in the surveillance footage, would not have been acceptable to any employer.
Five expert witnesses gave evidence for the plaintiff at the trial. Important evidence as to his brain injury and its effects was given for the plaintiff by a consultant neurologist, Dr Rosen, and a consultant neuropsychologist, Mr Fourez. Four expert witnesses gave evidence for the defendants. In relation to the dispute as to the effects of the plaintiff's brain injuries, their principal witness was Dr Michael Coroneos, a consultant neurosurgeon. The defendants' other experts all, to some extent, based their opinions on those stated by Dr Coroneos.

Dr Rosen

Dr Rosen saw the plaintiff in January 2012 and April 2015 for the purpose of this litigation. He wrote a number of reports. In his first report, dated 1 February 2012, he noted a number of the plaintiff's symptoms, including headaches, pain in the shoulder and wrists, impaired balance, memory problems, inability to cope in social situations, difficulty sleeping, frequent fatigue, and mood symptoms, particularly feelings of frustration. He concluded that the plaintiff's traumatic brain injury had led to "cognitive memory, personality and mood dysfunction with impaired balance". He opined that the plaintiff had probably reached maximum medical improvement. He said that he had a permanent disability that arose from the cognitive, behavioural, mood and personality changes resulting from the head injury. He considered that the plaintiff's brain injury would prevent him from engaging in any form of employment in the open workforce, even if his chronic pain remitted. He said it was likely that "he would find it extremely difficult to engage in any area of employment for reasons ranging from difficulty in learning new skills to difficulties conducting appropriate social intercourse due to a combination of easy frustration, volatile emotions, inappropriate behaviour, disinhibition and impulsivity". His opinions essentially remained unchanged after he reviewed the plaintiff in April 2015. Before the trial he viewed the surveillance footage. He considered that it confirmed his opinions. Essentially he adhered to his original opinions at the time of the trial. He was not shaken in cross-examination.

Mr Fourez

Mr Fourez assessed the plaintiff for the purpose of this case in or about May 2015, and provided a report dated 26 May 2015 to his solicitors. He interviewed the plaintiff and his wife, reviewed the Royal Hobart Hospital file and reports from the plaintiff's other expert witnesses, and conducted a series of psychological tests. He noted symptoms that included daily headaches, poor balance, loss of smell and taste sensations, excessive fatigue, slower speech rate, word finding deficits, poor short-term memory, impaired remote memory, residual face recognition problems, poor route finding, distractibility, inability to cope with multiple inputs, emotional blandness, loss of empathy, increased irritability, a degree of social disinhibition, and loss of libido. He administered tests to investigate the possibility of response bias, but the results provided no support for a hypothesis that the plaintiff was withholding effort. He believed that the listed symptoms were all the result of the plaintiff's brain injury. He commented, "The location of his permanent lesions is also largely consistent with the presence of verbal memory deficits, alteration of personality, and high-level language difficulties." He did not anticipate any further neurological recovery. He assessed the plaintiff's cognitive dysfunction to be "moderate to severe". He opined that the plaintiff's poor memory, distractibility and slow speed of performance would combine to render him incapable of competing on the open job market, and that his propensity to fatigue and ongoing balance and orthopaedic symptoms further detracted from his employability. His opinions remained unchanged at the time of the trial, and were not shaken by cross-examination.

Dr Coroneos

Dr Coroneos expressed a radically different view of the plaintiff. He interviewed and examined him twice, in February 2012 and October 2013, providing the defendants' solicitors with detailed reports after each of those assessments. He subsequently provided a number of reports in relation to other experts' reports and the surveillance footage.
Dr Coroneos' first report was dated 9 March 2012. In that report he expressed opinions that he could not determine any objective neurological deficits; that the plaintiff's presentation was not typical of significant organic ongoing brain damage; that the CT, MRI and EEG reports were not consistent with the plaintiff's presentation of gross memory and speech disturbance; that there was no mechanism whereby his condition could deteriorate to the point where his inability to recall was as bad as he advised it was; that there had been a spontaneous resolution of his contusion and subdural haematoma without surgery; that the plaintiff's holding of a driver's licence and driving were inconsistent with any occupational incapacity; that he could not explain the plaintiff's reported incapacity for work; and that he could not comment on prognosis because he did not believe that the plaintiff's presentation was co-operative. His stated opinions remained unchanged up to the time of the trial.
After viewing the surveillance footage, Dr Coroneos wrote, in a report dated 1 July 2015, that he believed the plaintiff was able to engage in full-time employment without a requirement for restriction; and that he believed the plaintiff had made a complete recovery from his head injury and was not restricted from returning to full-time pre-injury employment.
In an undated proof of evidence delivered shortly before the trial, he commented on a report by one of the plaintiff's expert witnesses, Ms Ravignani, an occupational therapist. He said this:
"Mr Hendrex's complaints and presentation are non-organic to a significant extent. They do not justify the needs identified by Ms Miller-Ravignani, which are based on acceptance of Mr Hendrex's complaints which I consider are not able to be explained neurosurgically."
Dr Coroneos appears to have had access to the plaintiff's records from the Royal Hobart Hospital at the time of his first report dated 9 March 2012. He referred in that report to a series of CT scans that were taken during the week that the plaintiff spent in hospital. He referred to some letters dated 11 September 2008 and 26 February 2009, and then wrote, "I note that follow-up EEG, CT and MRI did not demonstrate any abnormality."
He must have regarded that as an important point. I say that because, before the end of his report, he said five more times that the CT, MRI and EEG investigations were said or reported to be normal. But that was not true.
The Royal Hobart Hospital records contain a report of a CT scan undertaken on 31 December 2009. That report contains the following:
"Comparison was made with the last CT brain dated 09/09/08.
No intra or extra-axial hematoma or space occupying lesion shown. An area of encephalomalacia is seen in the left inferior temporal region, this probably resulted from the previously known haemorrhagic contusions. There is volume loss of the left temporal lobe and mild ex-vaccu dilation of the left temporal horn and left lateral ventricle trigone.
At the site of the right temporal haemorrhagic contusion there is less significant encephalomalacia with widening of the anterior limb of the sylvian fissure but no significant ventricular ex-vacuo dilation shown."
Those records also contain a report of an MRI scan undertaken on 1 March 2010. That report contains the following:
"There is volume loss in the infralateral portions of the left temporal lobe with some subcortical high signal on T2 weighted imaging consistent with gliosis. There is prominent extra axial CSF space but no evidence of a [sic] extra axial collection or haemorrhage. On the susceptibility weighted imaging there is evidence of haemosidarin deposition in this region, presumably related to the large contusion.
…
OPINION
At the site of previous cortical contusion there is evidence of gliosis and volume loss. There is no additional abnormality."
Further investigations were undertaken in 2010, including a cranial CT scan on 9 August 2010 and a CT cerebral angiogram on 1 November 2010. It would appear that the radiologists were looking for evidence of a subarachnoid haemorrhage or an intracranial aneurysm, and that they found no evidence of any such abnormality. No mention was made in their reports of the damage resulting from the fall.
In his second report, dated 10 October 2013, Dr Coroneos noted the result of a CT scan undertaken on 23 August 2013, as follows:
"There was evidence of gliosis left temporal lobe which is longstanding. No acute intercranial [sic] abnormality. No contrast examination performed."
Despite that, he still wrote on the next page, summarising his previous conclusions, "I noted that CT, MRI and the EEG were reported to be normal after spontaneous resolution of his contusion and thin subdural haematoma which did not require surgery … The CT was said to show a contusion and thin subdural haematoma which resolved spontaneously." He said nothing about the fact that the CT scan of 23 August 2013 was inconsistent with the opinions he had previously expressed. He ignored the radiological evidence of permanent brain damage, stating only, "I am unable to find any objective neurological deficit."

The plaintiff underwent an MRI scan on 13 March 2014. The report of that examination, which was tendered as part of the Gold Coast Hospital and Health Centre records, includes a finding that, "There is gliosis within the inferior left temporal lobe which likely reflects sequelae of previous traumatic cerebral contusion." Dr Stephanie Auchincloss, a psychiatrist who was one of the defendants' expert witnesses, wrote in a report dated 28 May 2014, on page 10, "I understand the result of an MRI in March 2014 showed a large area of gliosis, involving the left temporal lobe, with no other specific abnormality. There was no evidence of an acute cerebral infarct at that time, and an EEG obtained at that time was also normal. The MRI suggests there might be an organic basis for some of his problems."
Dr Coroneos was asked to comment on that report, and did so in a letter dated 28 August 2014. He wrote:
"He [sic] understands that the MRI in March 2014 showed a larger [sic] area of gliosis involving the inferior left temporal lobe with no other abnormality. EEG was normal."
He did not mention that, in her next sentence, Dr Auchincloss had commented that the MRI suggested that there might be an organic basis for some of the plaintiff's problems. He told the defendants' solicitors, "I do not believe that the report you have provided changes any of the opinions that I have formed and documented in my reports."
In a report dated 1 July 2015, Dr Coroneos wrote:
"I believe that Mr Hendrex has made a complete recovery from his head injury and is not restricted from returning to full time pre-injury employment."
Nowhere in Dr Coroneos' documentary or oral evidence did he disclose any reasoned basis for so profoundly disagreeing with the opinions of Dr Rosen. He mentioned a number of times that Dr Rosen had not examined the plaintiff's fundi – the interior surfaces of the eyes. He noted himself in 2010 that the fundi and eye movements were normal, but did not appear to attach any significance to that observation.
I was surprised that Dr Rosen and Dr Coroneos expressed very different views as to the significance of some things. For example, each considered that the surveillance footage provided confirmation of their opinions as to the plaintiff's unfitness or fitness for work. Dr Coroneos expressed the opinion that the plaintiff's driving was inconsistent with his claimed disability, whereas Dr Rosen expressed concern about him driving, and doubts about how well he was managing to find his way to destinations. Evidence that the plaintiff was taking anticonvulsant medication was considered explicable by Dr Rosen, but Dr Coroneos expressed opinions that it was inexplicable, and inconsistent with the plaintiff's claimed symptoms. Assuming, for the moment, that the opinions expressed by Dr Coroneos were honestly held by him, I think the key to the differences between the two experts' approaches might be found in something Dr Rosen said towards the end of his cross-examination about the different perspectives of neurosurgeons and neurologists. One needs to bear in mind that Dr Coroneos is a neurosurgeon and Dr Rosen is a neurologist. Dr Rosen said this:
"Most patients are discharged from neurosurgical clinics after head injury well before they get to this stage. [The stage the plaintiff had reached in 2015.] Once there's no further need for neurosurgical input the neurosurgeon has a very limited role, and it's mostly the neurologists, neuropsychologist, psychologists, psychiatrists and that constitutes, if you like, the brain injury team, the brain injury rehabilitation team. It's rare for the neurosurgeon to have an active role in that over such a long period of time ....".
Because of his different expertise, I am inclined to think that Dr Rosen, as a neurologist, was in a better position to assess the significance of the plaintiff's ongoing reported symptoms than Dr Coroneos was in his capacity as a neurosurgeon.
Dr Rosen explained that, prior to the incident on 9 August 2010 when the plaintiff was taken to the Royal Hobart Hospital with symptoms of paralysis, severe headache, confusion and slurred speech, he was taking two forms of medication that happened to have anticonvulsant properties – one to manage his behavioural disturbance as a so-called mood stabiliser, and one for pain relief. He explained that, although there was no history of convulsions, the possibility that the plaintiff had had an epileptic seizure could not be ruled out, and it was therefore decided to err on the side of caution. As a result, the plaintiff was advised not to drive for a period of time, and anticonvulsant drugs were prescribed. Dr Rosen also explained that the plaintiff had been given opioid type medication for the relief of his chronic pain problem. By contrast, Dr Coroneos opined in March 2012 that the plaintiff's ongoing presentation including ongoing incapacity, requirement for anticonvulsants, and requirement for narcotics was inconsistent with the ability to drive a motor vehicle.
In his report dated 27 April 2015, Dr Rosen explained that, in his opinion, there was a reasonable explanation for apparent inconsistencies in the plaintiff's presentation. He wrote:
"His behavioural inconsistencies are in keeping with the sequelae of certain types of brain damage due to traumatic brain injury but at the same time call into question his overall level of motivation and illness behaviour and whether or not there is any degree of elaboration. In the context of a head injury of this nature it can be very difficult to fully tease out these factors."
By contrast, Dr Coroneos appears to have proceeded on the basis that any inconsistency in presentation tended to confirm that there was no organic brain damage.
The evidence suggests that the plaintiff was often not at his best when he went to see the defendants' expert witnesses. The information that he provided to them as to the state of his memory was often inconsistent with the information that he provided to the experts engaged by his solicitors, and with his evidence at the trial. I have the impression that anger sometimes led him to exaggerate his symptoms when talking to the defendants' experts, and that anxiety hampered his ability to respond to their questions. Dr Coroneos appears to have identified exaggeration as a factor without making any allowance for any difficulties on the plaintiff's part.
Up to this point, I have not said anything about the cross-examination of Dr Coroneos, but it is now time to mention it. The cross-examination was conducted by Mr Read SC. He asked only seven questions. None of them concerned the plaintiff. All concerned the credibility and reputation of Dr Coroneos. The cross-examination established that Dr Coroneos was suspended from practice for 12 months following his conviction in January 1994 on a charge of defrauding the Commonwealth, and that he was suspended again in 2003 for a further three months. Dr Coroneos said that he did not recall the details of the second suspension, but that he did not think that it was related to the first one. I do not believe that he was unable to remember the reason for his second suspension. I do not think he was telling the truth when he said that he could not remember the reason for it. It is not likely that he was suspended so many times that he could not recall the reason for a particular suspension in 2003. It is far more likely that he knew why he had been suspended that year, and did not want me to know the reason.
If Dr Coroneos had not been cross-examined at all, I would have been extremely reluctant to accept his opinions because he appeared to ignore information about CT and MRI scans that other experts regarded as evidence of a permanent brain injury, and because of the evidence suggesting that a neurosurgeon is not in as good a position as a neurologist or a neuropsychologist to perform an assessment of a patient like the plaintiff. In the light of the doctor's apparent dishonesty under cross-examination, as well as his fraud conviction many years ago, I am not prepared to attach any weight at all to any opinion expressed by him as to any point of controversy. He may be eminently qualified for practice as a neurosurgeon, but as an expert witness I consider him untrustworthy.

Dr Christian

As I have said, another of the defendants' expert witnesses was Dr Blair Christian, a consultant occupational physician. He saw the plaintiff at the request of the defendants' solicitors in January 2012 and October 2013. On both occasions he wrote detailed reports. Both were tendered at the trial, along with some supplementary reports and proofs of evidence in which he commented on other specialists' reports and the surveillance footage. On the basis of Dr Coroneos' reports, he accepted that there was no continuing organic brain damage that led to any significant disability.
When Dr Christian saw the plaintiff in January 2012, he did not attempt a thorough assessment in relation to his head injury because he had limited information, and limited time with him. When he saw him again in October 2013, he had been provided with reports by Dr Coroneos and Mr Perros. On the basis of their reports he opined that it seemed reasonable to accept that traumatic brain injury was unlikely to be the predominant cause of all the plaintiff's symptoms and his general presentation, and that it seemed unlikely that significant traumatic brain injury was causing any significant degree of disability. He recommended a psychiatric assessment because he was not clear whether there was any "conscious elaboration or magnification of symptoms and disability, or rather whether this should best be understood as being a psychiatric or psychological issue such as a somatic condition". He did not change his opinions as a result of viewing the surveillance footage.
When Dr Christian saw the plaintiff in October 2013, he had been provided with a copy of Dr Rosen's report of 1 February 2012. That report contained opinions that were diametrically opposed to those of Dr Coroneos. However, in his report of October 2013, Dr Christian did not mention the views of Dr Rosen at all, but simply accepted the opinions of Dr Coroneos. The report of Dr Rosen contained details of the CT scan of 31 December 2009 and the MRI scan of 1 March 2010, both of which provided evidence of organic brain damage that was inconsistent with the conclusions expressed by Dr Coroneos in his report of 9 March 2012. The fact that Dr Christian uncritically accepted the opinion of one of the defendants' other experts, without even mentioning the contradictory opinion of one of the plaintiff's experts, tends to suggest that his opinions, at least in relation to the head injury, should be approached with great caution. As I have concluded that the opinions expressed by Dr Coroneos are not trustworthy, it follows that I should give very little weight to the opinions of Dr Christian in relation to the head injury.

Mr Perros

Another of the defendants' expert witnesses was Mr Peter Perros, a consultant neuropsychologist. He saw the plaintiff only once, on 21 August 2012. He undertook a neuropsychological assessment and provided a report dated 11 September 2012 to the defendants' solicitors. Amongst other things he administered a series of psychological tests. He had been provided with a lot of documentation, including the first reports of Dr Coroneos, Dr Christian and Dr Rosen. He accepted the opinions of Dr Coroneos and Dr Christian to be correct. Remarkably, he took the view that Dr Rosen's opinions were much the same.
He mentioned Dr Rosen a few times in his report. At page 14, he wrote this:
"Mr Hendrex suffered left temporal lobe contusion with haematoma and contrecoup type contusions in the right frontal and temporal lobe, and bilateral wrist fractures. Subsequent brain imaging investigations reveal there is gliosis associated with the brain injury which have [sic] resolved over time. Dr Rosen has opined that opined that [sic] Mr Hendrex has no focal neurological impairment."
A number of points can be made about that paragraph:
·     It was not correct to say that the brain injury or the gliosis had "resolved over time", or that any investigations had revealed that, or even suggested that.
·     In the relevant report of Dr Rosen, that dated 1 February 2012, the only reference to focal impairment was in a passage where Dr Rosen summarised a letter dated 11 September 2008 from Dr Mark Slatyer, a consultant physician at the Royal Hobart Hospital, to the plaintiff's general practitioner. That letter contained a thorough summary of the symptoms that the plaintiff then had as a result of his fall. It also included a sentence that read, "He had no focal weakness". In summarising that letter, Dr Rosen wrote, "On neurological examination he had no focal weakness …".
·     No intelligent reader could interpret Dr Rosen's report as suggesting that the plaintiff had no ongoing organic brain injury symptoms.
On page 15 of his report, Mr Perros wrote:
"Dr Blair Christian also sifts through the medical data and basically comes up with an opinion that supports that of Dr Coroneos (and Dr Rosen) – that there are no reliable signs of organicity."
Obviously Mr Perros, assuming he was being honest and had actually read Dr Rosen's material, totally misunderstood Dr Rosen's opinions.
On 17 September 2014 Mr Perros wrote a follow-up report to the defendants' solicitors, commenting on some recent medical reports. He said a number of things in that report which revealed misunderstandings on his part. That report contained the following:
"I note that the hospital records seem to attribute the gliosis apparent on the CT scan to an old injury, not to an acute (at the time) injury.
…
All the medical opinions obtained seemed to be indicating that there was no brain damage arising from the subject fall.
…
I recall that in 2012 Dr Rosen opined that Mr Hendrex has no focal neurological impairment. This opinion is shared by Dr Michael Coroneos."
There is nothing in the hospital records that could be interpreted as attributing the gliosis to an old injury. All of the medical opinions indicated that there was brain damage resulting from the fall, though Dr Coroneos and Dr Christian expressed opinions that the plaintiff had recovered from the brain damage. One of the reports on which Mr Perros had been asked to comment was that of Dr Coroneos dated 10 October 2013. That report included a summary of Dr Rosen's first report, in which Dr Coroneos said that Dr Rosen "commented on cognitive memory, personality and mood dysfunction" and advised that in his opinion the plaintiff had reached maximum medical improvement. Yet Mr Perros still did not appear to realise that those two specialists had very different views.
Under cross-examination, Mr Perros was taken to a passage in Dr Rosen's report of 1 February 2012 in which he gave a diagnosis of "Traumatic brain injury … leading to cognitive memory, personality and mood dysfunction with impaired balance". He was then taken to his own comments as to all the medical opinions seeming to indicate there was no brain damage, and asked whether that was a mistake. He responded, "At the time I wrote it I thought it was correct". The cross-examiner asked him a second time whether that was a mistake. He gave exactly the same response, "At the time I wrote it I thought it was correct". The cross-examiner asked him whether it was right or wrong. He responded that that was his answer. The cross-examiner tried again, without success. I intervened, and said to the witness, "Answer the question. Is it right or wrong?" Mr Perros was giving his evidence by video link. At that point he remained silent, turned away from the camera, and appeared to sulk. I asked him whether he was going to answer my question. He eventually responded, "What – did it – was it one of the medical – one of the sections that you read out, didn't it actually say that there was no focal impairment? I think it was the first one, Dr Coroneos, wasn't it?" Mr Read SC resumed cross-examining and, after asking the same question four more times, obtained a concession that the sentence in the report was wrong. I formed the view that Mr Perros was not an impressive witness.
Mr Perros accepted that the plaintiff had problems, but took the view that they were essentially psychological. In his report of 11 September 2012 he wrote:
"From the psychological perspective, Mr Hendrex displays a gradual deterioration in his psychological health … I believe that his chronic pain, anger, and dissatisfaction with 'the system' have eroded his hope of returning to his pre-injury status."
In a proof of evidence dated 10 February 2015, Mr Perros summarised his opinions relating to the plaintiff as follows:
"In the absence of medical evidence of neurological impairment, I am not able to provide a neuropsychological explanation for his presenting complaints. He is exaggerating his cognitive difficulties. I believe Mr Hendrex is suffering from health anxiety which is not attributable directly to the fall, but rather the medical legal process."
He was subsequently sent the surveillance footage, Mr Fourez's report of 26 May 2015, and a report by Dr Auchincloss. In a report dated 17 July 2015, his conclusions as to that new material included the following:
"The material provided does not materially change my opinion.
…
Mr Hendrex has maintained a high degree of competence in completion of activities of daily living that is not consistent with his presentation at interview and neuropsychological testing on 21 August 2012."
Towards the end of his cross-examination, Mr Perros gave a very different account of the impact of the surveillance footage on his opinion. Speaking of his September 2012 assessment, he said:
"I gave him the benefit of the doubt on the psychological injury secondary to the fall off the ladder and the physical injuries which affect his capacity to work, but the impression I gained was of a housebound cripple who's totally dependent on his wife and what I saw in the video smashed that perception quite unequivocally."
He must have forgotten that, about two months previously, he had said that new material provided to him, which included the surveillance footage, did not materially change his opinion.
The plaintiff's wife gave evidence about the day that she and her husband visited Mr Perros. The plaintiff had to get up much earlier than usual to travel from Hervey Bay to Brisbane for the appointment. The journey took about four hours each way. They drove from Hervey Bay to Caboolture and took a train from there. After arriving, she and her husband were told that the assessment would take something like four hours. That was a source of anxiety because no arrangements had been made for anyone else to look after their children at the end of the school day. Under cross-examination, Mr Perros agreed that on arrival the plaintiff looked strained and bleary eyed, and appeared tired, with obvious bags under his eyes. He confirmed that the plaintiff said he had not slept well the night before because he was worrying about the appointment and "having to go over it all again". He confirmed that, during his session with the plaintiff, he had cause to be concerned about the plaintiff's comfort, his distress, and the fact that he was complaining of headache. He said that the plaintiff's levels of depression and anxiety would have had an impact on some of the test results, and that he shortened the test procedure. In his report of 11 September 2012, Mr Perros noted that some test results suggested low effort, and "disengagement from and low interest in testing". That is hardly surprising.
Because of the state the plaintiff was in when Mr Perros undertook his assessment, his reliance on the opinions of Dr Coroneos, his misunderstanding of the opinions of Dr Rosen, and the other observations I have made about the poor quality of his evidence, I do not consider his opinions reliable where they are in conflict with those of Mr Fourez and Dr Rosen.

Dr Auchincloss

As I have said, Dr Auchincloss gave psychiatric evidence for the defendants. She saw the plaintiff once, on 26 May 2014. At that time she was provided with Dr Coroneos' reports of 9 March 2012 and 10 October 2013, Mr Perros' report of 11 September 2012, and a discharge summary from the Gold Coast Hospital dated March 2014, but not with any reports from Dr Rosen or any of the experts who subsequently gave evidence for the plaintiff. The plaintiff was remarkably unco-operative with her. In the circumstances, her conclusions at that time were not surprising. In a report dated 28 May 2014, she wrote the following:
"It is highly unlikely that Mr Hendrex has an organic brain syndrome with an acquired brain injury. I think the majority of his difficulties are due to malingering, and to his desire to obtain a financial compensation.
…
I understand the result of an MRI in March 2014 showed a large area of gliosis, involving the inferior left temporal lobe, with no other specific abnormality. There was no evidence of an acute cerebral infarct at that time, and an EEG obtained at that time was also normal. The MRI suggests there might be an organic basis for some of his problems.
…
I doubt Mr Hendrex has any capacity to work at the moment as he is assuming a posture of considerable disability. Whileever he believes that he can get remuneration for this condition I do not believe that he will be able to go back to work.
…
The cause of the incapacity is the assumed posture of severe memory disturbance which he is convinced is secondary to his acquired brain injury. Having read the reports, both by the neurosurgeon and the neuropsychologist I believe this is highly unlikely. He does have some gliosis on his MRI but the neuropsychological report suggests his memory and cognitive deficits are due to lack of effort, rather than solely having an organic basis."
In June 2015 Dr Auchincloss was provided with the surveillance footage. After viewing it, she wrote in a supplementary report:
"… the video surveillance footage encourages me to be more certain than before that Mr Hendrex is suffering from a factitious condition and that his purported memory difficulties are less likely to be organic in nature."
On the basis of the material provided to her, Dr Auchincloss understood that the plaintiff had damage to his left temporal lobe, but did not realise that he had bilateral temporal lobe damage. Her understanding was that there was lasting gliosis only on one side, but it was on both. She gave evidence that it is much more likely for a patient to have very severe memory problems if there is "bitemporal damage". She conceded under cross-examination that it was highly likely that the plaintiff had an organic brain syndrome with an acquired brain injury, but opined that there was certainly some feigning on the plaintiff's part, and that the degree of feigning was almost impossible to tell.

Conclusion

The evidence of Dr Rosen as to the plaintiff's head injury was thorough, well reasoned, consistent, unshaken, and substantially unchallenged. It is true that he was unable to explain the precise mechanism by which the plaintiff's brain injury resulted in the symptoms that have been observed and described, but I do not see that as a weakness in his evidence. Medical science does not yet have an answer for every question. Dr Rosen has over 20 years' experience in clinical neurology, including teaching and research work. In view of the assessments I have made of the various expert witnesses and their stated opinions, I prefer the expert evidence of Dr Rosen and Mr Fourez as to all aspects of the plaintiff's head injury, and I accept that evidence.
As a result, I substantially accept the evidence of the plaintiff as to his symptoms. It appears that he overstated his memory problems to some of the defendants' expert witnesses, probably as a result of anger and frustration, but I believe he was honest in giving his evidence.

Loss of earning capacity

In my view the evidence clearly establishes that the plaintiff became permanently unemployable as a result of his fall. I say that principally on the basis of the evidence of the plaintiff, his wife, Dr Rosen, Mr Fourez and Dr Douglas.
The plaintiff's work history is uncontroversial. He grew up in Tasmania and left school at the end of year 10. He commenced an apprenticeship as a motor mechanic, but did not complete it because his employer went out of business. He worked as a commercial fisherman for about five years. He later worked for a car rental company, dealing with the public over a counter. After that he worked as a cleaner at Cadburys. That was a part-time position. He worked only four hours per day. He then started working for a tiler. His work involved laying parquetry floors and vinyl floors, and some roofing work. After that he went into business on his own as a tiler. He undertook both roofing and flooring work. He worked on houses at first, but later took on some jobs for larger companies. At times he had other men working for him. However, in the years leading up to his accident he worked only intermittently. His wife was the household's primary breadwinner. He would spend time staying home looking after the children while she worked.
At times he received Centrelink benefits. He filed tax returns, but did not declare all his income. As he put it, "The tax man seen bugger all."
According to the plaintiff's tax returns, his income from Centrelink and other sources during the nine financial years that preceded his accident was as follows:

YEAR CENTRELINK
$ OTHER
$

2000 7345 3200

2001 8223 0

2002 8535 0

2003 5642 1049

2004 2405 2731

2005 0 4870

2006 0 0

2007 3050 0

2008 0 0

The plaintiff claimed a tax deduction of $150 in respect of clothing and laundry expenses for the 2000 year, and a deduction of $160 as the cost of managing his tax affairs for the 2004 year. Those were the only deductions he claimed.
I am not able to make a finding as to what income the plaintiff really earned in the years preceding his accident. I am satisfied that he was capable of earning substantially more than $4,870 per annum gross, that being the income that he declared for the 2005 tax year, after which he did not declare any earned income. I am also satisfied that, in the years leading up to his accident, he was not fully exploiting his earning capacity.
There are two pieces of evidence that I can use as starting points for the purpose of assessing damages for the destruction of the plaintiff's earning capacity. Mr Keating gave evidence that he was paying the plaintiff an hourly rate, and that he thought that rate was $25 per hour. I was also provided with figures published by the Australian Bureau of Statistics, which show that the average weekly earnings for Australian full-time adult employees as at May 2015 amounted to $1,541.50. I calculate that that is the equivalent of $1,172.29 per week after tax. My calculations are as follows:

Annual earnings before tax ($1,541.40 x 52) $80,152

Income tax ($17,534 + 37% of $152) ($17,590)

Medicare levy (2% of $80,152) ($1,603)

Net annual earnings

$60,959

Net weekly earnings ($60,959 ÷ 52) $1,172.29

There are a number of factors adverse to the plaintiff that need to be taken into account in assessing damages under this head:
·     He had not completed an apprenticeship or obtained any formal qualifications.
·     He was never a person of high intelligence.
·     In the years prior to his accident he had chosen not to fully exploit his earning capacity. That was likely to remain the situation, at least intermittently. But for his injuries, there may have been times when he worked full-time, but there may have been times when he would not have worked at all.
·     He had a bad back before his fall. That made it difficult for him to do some types of work, and there were days when he was unable to undertake physical work.
·     He was accident prone. He had had a number of trips to hospital in relation to injuries that were caused by his own carelessness. It was likely that he would have been unfit for work from time to time as a result of minor injuries if he had not become incapacitated as a result of his fall. His tendency to descend ladders frontwards rather than backwards may well have resulted in an injury and unfitness for work.
·     Some allowance should also be made for illness. If working as an independent contractor, the plaintiff would have earned nothing if he had ever fallen ill.
Counsel for the defendant submitted that the plaintiff "had effectively no earning capacity for work for which he was suited by education, training or experience prior to the fall". I think that overstates the position. Subject to the problems caused by his bad back, he was suited for physical work such as tiling and roofing. He had substantial experience, though not formal qualifications, in relation to the work of various trades. All the evidence I have as to his pre-accident personality indicates that he was very independent and quite undisciplined. He was far more suited to working as an independent contractor than as an employee. I accept that the chances of him ever successfully retraining for any sort of sedentary work were quite low.
Doing the best I can, and bearing in mind that the plaintiff bore the onus of proof, I think it appropriate to compensate him for lost earnings in the period between his injury and this judgment on the basis that, on average, he would have earned about $150 per week after tax. In arriving at that figure, I have taken into account the very slim possibility that he might have worked as an employee and obtained superannuation benefits. I therefore calculate his damages for past economic loss as follows:
405 weeks @ $150 per week = $60,750
However there are some factors which suggest that the plaintiff would have been more likely to have exploited his earning capacity in future years. One possibility is that, once his children became adults and left home, he would have found himself with reduced domestic responsibilities and spent more time doing remunerative work. Another possibility is that he might have chosen to replace his wife as the principal breadwinner of the household, particularly if she became unemployed or incapacitated.
A man with the plaintiff's date of birth will become eligible for an age pension on attaining the age of 67 years: Social Security Act 1991 (Cth), s 23(5A). The plaintiff is now 44 years old. The discount rate to be applied in calculating the present value of his future loss is 5%: Civil Liability Act, s 28A(a). If the plaintiff had not become incapacitated for work, I think he would probably now have been capable of earning about $800 per week after tax. If he had not been incapacitated, there is a chance that he would have continued to do a little remunerative work after reaching pension age. Doing the best I can, I think it appropriate to compensate him for the loss of his future earning capacity, including possible superannuation benefits, by awarding the lump sum equivalent of $250 per week for a period of 23 years, which I calculate as follows:
$250 x 721 = $180,250
The multiplier of 721 has been derived from Table 2 in Luntz, Assessment of Damages for Personal Injury and Death, 4^th ed, Butterworths, 2002, at 683. In selecting the figure of $250 per week, I have made allowance for the usual contingencies, including mortality, illness, and injury, as well as unemployment and under-employment.

Past gratuitous care

The plaintiff's wife has looked after him very thoroughly ever since his fall. She has had to take on the bulk of the household chores, such as shopping, cleaning and washing. She takes the plaintiff to medical appointments, purchases his medication, and supervises him in many respects. She reminds him to take medication, shower, and change clothes. She manages the family finances. She supervises him at home and away from home. She guards him against problems in social situations.
She gave evidence that the plaintiff sleeps poorly, and that he sometimes wakes and sit up on the edge of the bed. She needs to supervise him at night in case he falls asleep or comes to harm during the night.
A detailed assessment of the plaintiff's needs for attendant care was undertaken by Ms Ravignani, the occupational therapist who gave expert evidence for him. She opined that he needs 12 hours of inactive supervision and vigilant care every night, as well as 4 hours of supervision, assistance and vigilant care every day. She said that the required care was currently provided by his wife but, in a report in January 2013, summarised what carers would have to do if his wife was not available, as follows:
"Carers would ensure that Mr Hendrex eats properly and exercises; they would take him shopping, supervise meal preparation and housework and supervise financial and administrative management (banking & paying bills). They would also provide prompting and assistance for personal care, provide him with transport if necessary and ensure that he attends appointments as well as accompanying him to social or leisure activities if necessary."
The plaintiff is claiming damages in accordance with Griffiths v Kerkemeyer (1977) 139 CLR 161 in respect of his need for the services that have been provided by his wife since the day of his accident. As the Full Court observed in Potts v Frost [2012] TASFC 6, 22 Tas R 103 at [52], s 5 of the Common Law (Miscellaneous Actions) Act 1986 did not abrogate the rules in Griffiths v Kerkemeyer, but had the effect of significantly confining the damages that could be recovered in accordance with those rules, until the repeal of s 5 by the Civil Liability Amendment Act 2005 removed the restrictions placed by that section on the recovery of damages for gratuitous services.
Section 28B of the Civil Liability Act applies to this component of the plaintiff's claim. That section includes the following provisions:
"(1) Damages for gratuitous services may be awarded in respect of gratuitous services required by the person as a result of injuries to that person caused by the negligence of another person.
(2) A person may not recover damages for gratuitous services unless the services have been provided, or are likely to be provided, to that person for more than 6 hours per week and for more than 6 consecutive months.
(3) In calculating damages for gratuitous services —
(a) the hourly rate is not to exceed one-fortieth of adult average weekly earnings; and
(b) the weekly rate is not to exceed adult average weekly earnings."
As a general rule, it is the market cost of the services provided gratuitously that a defendant must pay by way of damages as the reasonable and objective value of the need for those services: Van Gervan v Fenton (1992) 175 CLR 327. That principle applies in this case, subject to s 28B(2) and (3).
The plaintiff has claimed damages in respect of the past services provided gratuitously by his wife on the basis of the commercial cost of equivalent services for (a) four hours per day, seven days per week, and (b) a 12-hour sleepover each night, seven nights per week. The sums claimed exceed adult average weekly earnings. Counsel for the plaintiff conceded that, under this head, he could not recover an amount greater than adult average weekly earnings for the period in question.
Counsel for the defendants did not dispute the appropriateness of the hourly rates used in the calculation, but submitted that I should award nothing in respect of sleepovers, and assess damages under this head on the basis that the plaintiff needed his wife's gratuitous services for only two hours per day. She argued that the plaintiff has been substantially independent since the end of 2009 at the latest.
She submitted that I should not assess damages on the basis they were claimed because no medical expert had opined that the plaintiff reasonably required the level and nature of care that formed the basis of Ms Ravignani's calculations. It was argued that she was not qualified to give an opinion as to what care was required, beyond assessing the nature and cost of the care required to meet a medically identified need.
I reject that submission. Dr Rosen was asked in 2012 to assess the number of hours per week for which assistance was likely to be provided, but said that he was unable to do so, and that that was a matter for an assessment by a suitably qualified occupational therapist or a rehabilitation physician. Ms Ravignani is a suitably qualified occupational therapist. Dr Douglas, who is a suitably qualified rehabilitation physician, opined in February 2012 that the plaintiff needed care for 24 hours a day, seven days a week, as he was not able to be left unsupervised for any length of time. An assessment based on Ms Ravignani's evidence may therefore be considered to be a conservative one.
I accept the evidence of Ms Ravignani to the effect that, at all material times the plaintiff has needed supervision overnight every night, and about four hours' assistance from someone each day. As an experienced occupational therapist, she is well placed to make such an assessment. Her evidence, to the extent that it was challenged, was unshaken.
It follows that, under this head, the plaintiff should recover an amount based on total average weekly earnings, not the commercial cost of the services provided, in respect of the period from 17 July 2008, when he departed from the Royal Hobart Hospital, until the day of this judgment. His wife cared for him throughout that period, except for some short periods when he was in hospital and about three weeks in early 2014 when he remained behind at Hervey Bay. I have evidence that the appropriate average weekly earnings figure was $1,541.50 as at May 2015, but counsel did not tender evidence of any earlier figures. The Australian Torts Reporter includes, at ¶29-180, a table that sets out average weekly earnings figures from February 1999 to May 2009. It appears from that table that, as at 15 August 2008, the equivalent figure was $1,200.80. I will more or less split the difference between the two figures to allow for inflation. I will assess damages under this head on the basis that average weekly earnings averaged about $1,370 throughout the relevant period.
It is now about 404 weeks since the plaintiff walked out of the Royal Hobart Hospital. I estimate that his wife has provided gratuitous care for about 400 weeks during that period. I assess damages under this head in the sum of $548,000, representing 400 weeks at $1,370 per week.

Future attendant, domestic and related care

The plaintiff's wife is a very dedicated and competent carer. I am satisfied that she will continue to provide the care that her husband requires for a very long time, subject to the following:
·     There may be times when she makes arrangements for respite care to be provided commercially, particularly as she gets older.
·     It is likely that she will eventually become physically unfit to provide the level of care required.
·     There must be some risk of "burn out". Although I saw no evidence of any risk of the plaintiff's wife's commitment to her husband and her marriage deteriorating, good marriages do sometimes fail as a result of adversity, and that possibility must be taken into account in this case.
Ms Ravignani calculated in January 2013 that the cost of providing carers for four hours each day, and for a 12-hour sleepover each night, would amount to $173,578 per year. That figure equates to about $3,338 per week. That figure substantially exceeds average weekly earnings. To the extent that services will be provided by the plaintiff's wife in the future, damages under this head must be capped at the average weekly earnings figure pursuant to s 28B(3)(b) of the Civil Liability Act. In my view, if the plaintiff's wife were to cease caring for him, it would be reasonable for the plaintiff to incur that level of expenditure in order to live safely in his own home, rather than in some sort of institution.

I must make some provision for the possibility that the plaintiff will require commercially provided attendant, domestic and care services at times in the future. I must assess damages in respect of the commercially provided services on the basis of their reasonable commercial cost in accordance with Van Gervan v Fenton (above). The figure of $173,578 per annum is now three years old. The relevant wage rates have no doubt increased as a result of inflation. In the plaintiff's particulars, damages under this head were claimed on the basis of higher hourly rates and an annual cost of $187,880, but no evidence was tendered to substantiate those figures. In the circumstances, it is appropriate for me to take judicial notice of the fact that the 2013 wage rates must have increased due to inflation, and to adopt an annual figure that is greater than the 2013 figure. For ease of calculation, I will adopt a figure of $182,000 per annum, which equates to $3,500 per week.
The amount required to compensate an Australian man of the plaintiff's age for the loss of $3,500 per week for the rest of his life, adopting a discount rate of 5%, can be calculated as follows:
$3,500 x 837.6 = $2,931,600.
The multiplier of 837.6 has been derived from Table 3B in Luntz, cited above, at 687.
The multiplier that I have used makes allowance for mortality. The only other contingency relevant to the assessment of damages under this head concerns the provision of services gratuitously. I must make a substantial adjustment because of the likelihood that, throughout the rest of the plaintiff's life, the services he needs will nearly always be provided by his wife or perhaps other family members. Such an adjustment needs to be made only because s 28B(3) limits the damages in respect of gratuitous services by reference to adult average weekly earnings.
If all of the services required by the plaintiff were provided gratuitously for the rest of his life, the appropriate award of damages would be as follows:
$1,541.50 x 837.6 = $1,291,160.
To allow for respite care, and for the possibility that for part or parts of his remaining years the plaintiff will not have anyone who is willing and able to provide the required care gratuitously, I should award a sum under this head that exceeds $1,291,160. In the circumstances, I think it appropriate to assess damages on the basis that, over the rest of his life, the plaintiff will be cared for gratuitously 85% of the time and commercially 15% of the time. I therefore assess damages under this head as follows:

$1,291, 160 x 85% $1,097,486

$2,931, 600 x 15% $439,740

Total $1,537,226

Past medical and pharmaceutical expenses

The evidence establishes that, as a result of his fall, the plaintiff incurred pharmaceutical expenses totalling $1,870 prior to the trial. His Medicare claims history statement shows that Medicare paid $16,787 to doctors for services rendered as a result of his injuries. He will be liable to repay that amount pursuant to the National Health Act 1953 (Cth). That amount must therefore be taken into account in assessing his damages.
No doubt further pharmaceutical and medical expenses have been incurred since the start of the trial, which was about seven months ago. Doing the best I can, I estimate that such expenses during that period would have amounted to about $2,500.

Under this head, I therefore award the following:
Pharmaceutical expenses before trial  $1,870
Medical expenses before trial  $16,787
Pharmaceutical and medical expenses since trial          $2,500
Total  $22,957

Future medical, pharmaceutical and miscellaneous expenses

As a result of his injuries, the plaintiff will need to see a general practitioner frequently for the rest of his life. The parties have agreed that the present cost of a consultation with a general practitioner is $65. The plaintiff contends that damages should be assessed on the basis of one visit per fortnight to a general practitioner, but the defendants contend that one visit per month would be sufficient. In the 33 months following his accident, the plaintiff saw his general practitioner about once per month, but in the months preceding the trial he was seeing his general practitioner about once per fortnight. I think it is significant that he was receiving treatment at the Royal Hobart Hospital in the years following his accident, and therefore probably had less need to see a general practitioner than he does now. I also take into account the fact that most people need to see general practitioners from time to time, particularly as they get older. It is the plaintiff's wife, not the plaintiff, who arranges his medical appointments. From what I have seen of her, I do not think she would waste time and money on unnecessary appointments. In the circumstances, I think I should allow a little less than the cost of one visit per fortnight. I will assess damages in respect of general practitioner visits on the basis of a present cost of $30 per week.
Dr Rosen stated that the plaintiff will require follow-up neurological consultations once or twice per year. He said that the cost of such consultations would be in the order of $500 for the initial visit and $250 for each follow-up visit. I accept that evidence. The cost of a follow-up consultation every eight months would equate to about $375 per year, which is the equivalent of a little under $7.50 per week. To allow for the additional cost of the initial visit, I will assess damages on the basis of present cost equivalent to $7.80 per week.
The plaintiff takes six different types of medication as a result of his injuries. I accept that he needs to take each type of medication in the quantity that he currently takes. There is a dispute as to whether damages should be assessed on the basis of the unsubsidised cost of the medication, or on the basis that the plaintiff, as a pensioner, needs only to pay about $6 per prescription under the Pharmaceutical Benefits Scheme ("PBS"). The plaintiff's claim is based on an unsubsidised cost of $104.65 per week. However the defendants contend that, taking subsidies into account, damages should be assessed on the basis of the medication costing $25.94 per week.
The plaintiff receives a disability support pension, but it is means tested. The means test includes an asset test. Counsel for the plaintiff provided me with information as to the impact that the receipt of $1 million would have on the plaintiff's pension and PBS entitlements. That information was not disputed by counsel for the defendants. I accept that, as a result of various provisions in the Social Security Act and the National Health Act, the receipt of such a sum would render the plaintiff ineligible for either a disability support pension or a health care card. On the basis of the information provided, and the asset reduction specified in s 1064 of the Social Security Act in Module G-4, I calculate that the ownership of a sum exceeding $940,793 would have that effect. The plaintiff's wife gave evidence that they hope to purchase a house from the proceeds of the judgment. I will assume that the plaintiff will spend $400,000 of the proceeds on a house. Further, it appears to be common ground that the plaintiff will have to disburse about $255,000 by way of reimbursing Centrelink, reimbursing Medicare, and paying solicitor/client legal costs. On the basis of the conclusions that I have reached thus far as to contributory negligence, and as to the assessment of damages under various heads, I am not satisfied that the proceeds of this judgment will be sufficient to preclude him from receiving subsidised medication. I will therefore assess damages in respect of future pharmaceutical expenses on the basis of the subsidised cost of $25.94 per week.
Ms Ravignani opined that the plaintiff would reasonably need to incur expenditure in relation to a variety of services and items in the future, as follows:
·     She considered it reasonable for the plaintiff to receive "independent living training" from an occupational therapist for a total of 60 hours over a 12-month period. In 2013 she said that that would cost $155 per hour, or a total of $9,300.
·     She said that he would require a case manager to help him with independent living, and that that person's services would be required for 8 hours per month during the first year and thereafter for 12 hours per year, at $155 per hour. That is to say, the cost would be $1,860 per year (the equivalent of $35.77 per week), plus an additional $13,020 for the first 12 months.
·     She said that care providers would incur expenditure that would have to be met by the plaintiff. Such expenditure would cover food, transport, entry to shows, and other expenditure. She estimated that these expenses would amount to $100 per week.
·     She said that the plaintiff would require a gym membership for life in order to maximise his physical function, health, and well-being, as well as weight management. She costed this at $1,042.80 (the equivalent of about $20 per week), and said exercise was a therapeutic necessity for the plaintiff.
·     She said that the plaintiff would benefit from the assistance of a dietician, for a total of 24 hours in the first 12 months, and thereafter 4 hours per year. She costed this at $620 per year (the equivalent of $11.92 per week) plus an additional $3,100 for the first 12 months.
·     She said that the plaintiff would require intermittent treatment by a physiotherapist or similar professional because of his painful wrist and shoulder. She estimated that he would require 12 sessions per year at $75 per session. That is to say, the cost would be $900 per year (the equivalent of about $17.30 per week).
·     She said that the plaintiff would benefit from intermittent review by an occupational therapist to maximise his functional independence and assist with leisure options and liaise with carers. This seems to me to be a duplication of what she said in relation to "independent living training". I will therefore not allow anything in relation to this item.
·     She estimated that the plaintiff would require domestic assistance for spring cleaning, gardening, lawn care, outdoor cleaning, rubbish removal, home handyman tasks, car cleaning and maintenance, averaging 3.1 hours per week. She costed this at $44.15 per hour. That equates to $136.86 per week.
Counsel for the defendants submitted that none of these claims should be allowed, arguing that it was not reasonable for any of those costs to be incurred, and that there was no supporting medical evidence.
Ms Ravignani's opinions in relation to all of these items were set out in her report of 31 January 2013. It is very important to remember that her assessment on that occasion was a hypothetical one, based on an assumption that the plaintiff's wife would not be caring for him. That is to say, she assessed the cost of the services that he would need to pay for if his wife were to cease caring for him. Since his wife will continue to care for him in the foreseeable future, it is necessary for me to differentiate between expenses that should reasonably be incurred while his wife continues to look after him, and expenditures that it would not be reasonable to incur unless and until no one is looking after him gratuitously.
The plaintiff is overweight. He has put on a lot of weight since his fall. I think it would be reasonable for him to incur expenditure for the services of a dietician and for gym membership. However there is a strong chance that he will not be willing to take advice from a dietician or regularly attend a gym. Taking a broad brush approach, I will allow $3,000 in respect of the dietician and $3,000 in respect of gym membership.
The independent living training may never be required, and is unlikely to be required for a very long time. I will allow $1,000 because of the contingencies that such expenditure may be required in the distant future.
The other items involve recurrent expenditure totalling about $290 per week on Ms Ravignani's figures, as well as some one-off items. In my view it is reasonable to make some provision in respect of each item, on the basis that there are contingencies that such expenditure will be required when and if gratuitous care is not provided. The estimates in relation to carers' out of pocket expenses and heavy domestic assistance seem too generous to me. I will allow 10% of the amount required to compensate for the expenditure of $290 per week for life. In fixing that figure, I have taken into the account the one-off expenditure that Ms Ravignani said would be appropriate in relation to the various items.
Once again, the appropriate multiplier is 837.6. As stated above, that is the appropriate multiplier for calculating compensation to a man of the plaintiff's age for a particular weekly amount for the rest of his life, adopting a discount rate of 5%.
Under this head, I therefore allow the following:

Medical expenses ($30 pw x 837.6) $25,128

Future neurological consultation ($7.80 pw x 837.6) $6,533

Medication ($25.94 pw x 837.6) $21,727

Dietician $3,000

Gym membership $3,000

Independent living training $1,000

Miscellaneous ($29 pw x 837.6)) $24,290

Total $81,078

Fund management expenses

It is clear from the evidence as to the impairment of the plaintiff's cognitive function that he will not be able to manage a large sum of money. It will be necessary for the proceeds of this judgment to be managed by an entity that will no doubt charge substantial commissions. Again I will assume that the plaintiff will spend about $400,000 from the proceeds of the judgment on a house, and that he will have to pay about $255,000 from the proceeds of the judgment in refunding Centrelink and Medicare benefits, and in paying the solicitor/client component of his legal costs. The parties have agreed that, if damages are to be awarded under this head, I should make an estimate of the balance that will remain from the judgment sum after such payments are made, and increase the judgment sum by adding 17% of that balance figure to the final judgment sum. That is to say, the 17% is to be added after the reduction for contributory negligence.
As can be seen in the calculation below at [174], without any damages under this head, the judgment sum, after apportionment, would amount to $1,058,904. After buying a house, paying Centrelink, paying Medicare, and paying solicitor/client costs, I estimate that about $400,000 would be available for investment. In accordance with the parties' wishes, I have added 17% of that figure, namely $68,000, to the judgment sum as representing damages recoverable under this head, after an adjustment for contributory negligence.

Pain and suffering and loss of amenities

I have already described the physical and psychological symptoms that have resulted from the plaintiff's brain, wrist and shoulder injuries. He is substantially disabled. His life is in ruins. He is fully aware of all of his problems, and of what his life used to be like.
His personality has changed. He has become distant and disconnected. He often displays little emotion, but has problems with frustration and emotional volatility. He has difficulty keeping up with conversations. He becomes confused and frightened in large crowds or in noisy environments. He sometimes loses his temper in social situations. There is little he can do independently. His sexual relationship with his wife has suffered. His relationships with his children have suffered. He was always a smoker, but is smoking more than he used to.
He has continuing problems with his left wrist and right shoulder. He has a chronic pain problem. He has a chronic problem with headaches, sleeplessness, and fatigue.
The Civil Liability Act provides in s 28 that, "In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings." I do not think it appropriate to refer in these reasons to the awards of damages in particular cases. The High Court said in Planet Fisheries Pty Ltd v La Rosa (1968) 199 CLR 118 at 125 that a judge making an assessment of general damages "will be aware of and give weight to current general ideas of fairness and moderation". Since the introduction of s 28(1), it must be appropriate to take into account such general ideas from other Australian jurisdictions, even if the result is not in keeping with past Tasmanian ideas of fairness and moderation. In this case, the plaintiff has, because of his symptoms, chosen to live in Queensland. The quantum of his damages under this head should not depend on where he has chosen to live or the reasonableness of his choice.
In all the circumstances, I consider that the plaintiff's damages under this head should be assessed in the sum of $210,000.

Conclusion

For these reasons, there will be a judgment for the plaintiff in the sum of $1,126,904 calculated as follows:

Past loss of earnings $60,750

Future loss of earnings $180,250

Past gratuitous care $548,000

Future care $1,537,226

Past medical and pharmaceutical expenses $29,957

Future medical, pharmaceutical and miscellaneous expenses $81,078

Pain and suffering and loss of amenities $210,000

Total of the above $2,647,261

Less 60% (contributory negligence) $1,588,357

Balance $1,058,904

Fund management expenses (17% of $400,000) $68,000

Total

$1,126,904

YEAR	CENTRELINK $	OTHER $
2000	7345	3200
2001	8223	0
2002	8535	0
2003	5642	1049
2004	2405	2731
2005	0	4870
2006	0	0
2007	3050	0
2008	0	0

Annual earnings before tax ($1,541.40 x 52)	$80,152
Income tax ($17,534 + 37% of $152)	($17,590)
Medicare levy (2% of $80,152)	($1,603)
Net annual earnings	$60,959
Net weekly earnings ($60,959 ÷ 52)		$1,172.29

$1,291, 160 x 85%	$1,097,486
$2,931, 600 x 15%	$439,740
Total	$1,537,226

Medical expenses ($30 pw x 837.6)		$25,128
Future neurological consultation ($7.80 pw x 837.6)		$6,533
Medication ($25.94 pw x 837.6)		$21,727
Dietician		$3,000
Gym membership	$3,000
Independent living training	$1,000
Miscellaneous ($29 pw x 837.6))	$24,290
Total	$81,078

Past loss of earnings	$60,750
Future loss of earnings	$180,250
Past gratuitous care	$548,000
Future care	$1,537,226
Past medical and pharmaceutical expenses	$29,957
Future medical, pharmaceutical and miscellaneous expenses	$81,078
Pain and suffering and loss of amenities	$210,000
Total of the above	$2,647,261
Less 60% (contributory negligence)	$1,588,357
Balance	$1,058,904
Fund management expenses (17% of $400,000)	$68,000
Total	$1,126,904