Hunt v Roads and Traffic Authority of NSW
[2010] NSWDC 88
•25 May 2010
CITATION: Hunt v Roads and Traffic Authority of NSW & Anor [2010] NSWDC 88 HEARING DATE(S): 18, 19, 20, 21 May and 12 June 2009
JUDGMENT DATE:
25 May 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict and judgment for the plaintiff against the defendants in the sum of $843,136;
2. The defendants are to pay the costs of the plaintiff on the ordinary basis unless otherwise ordered;
3. I find the respective responsibilities of the defendants for the plaintiff’s damages is in the proportion 25 per cent on the part of the first defendant and 75 per cent on the part of the second defendant;
4. Verdict and judgment for the cross claimant against the cross defendant on the cross claim in the sum of $632,352;
5. The cross defendant is to pay 75 per cent of the cross claimant’s costs on the cross claim on the ordinary basis unless otherwise ordered;
6. The exhibits may be returned;
7. Liberty to apply on 7 days notice if further orders are required.CATCHWORDS: TORTS – negligence – occupier’s liability – personal injury – credit based liability findings – alleged negligence of owner of rental premises – alleged negligence of managing agent of rental premises – use of non-safety glass in earlier repairs carried out to premises – subsequent lacerating injury to plaintiff – whether due to negligence – liability considerations under Civil Liability Act 2002 – alleged contributory negligence – apportionment of liability between defendants - DAMAGES – assessment of multiple heads of damage following credit based findings LEGISLATION CITED: Australian Standard AS – 1288
Civil Liability Act 2002
District Court Act 1973, s 51(2) and s 51(4)
Law Reform (Miscellaneous Provisions) Act 1946
Local Government Act 1919CASES CITED: Baker v Gilbert [2003] NSWCA 113
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Brezatz v Przibilla [1962] HCA 54; (1962) CLR 541
Browne v Dunn (1894) 6 R 67
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Donoghue v Stevenson [1931] UKHL 3; (1932) AC 562
Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113
Florida Hotels Pty Ltd v Mayo [1965] HCA 26; (1965) 113 CLR 588
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Jones v Bartlett [2000] HCA 56; 205 CLR 166
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Mason v Demasi [2009] NSWCA 227
NSW Department of Housing v Hume [2007] NSWCA 69
Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245
Oxley County Council v McDonald & Ors [1999] NSWCA 126
Richards v Cornford [2010] NSWCA 99
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
Sakoua v Williams [2005] NSWCA 405
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491
Tweed Shire Council v Hancomatic Music Pty Ltd & Anor [2007] NSWCA 350
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Wu v Carter [2009] NSWSC 355
Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40PARTIES: Adrian Hunt (Plaintiff)
Roads and Traffic Authority of New South Wales (First defendant/First cross claimant)
Glowroar Pty Limited trading as Century 21 J Brough & Son (Second defendant/First cross defendant)FILE NUMBER(S): 5159 of 2006 COUNSEL: Mr B Dooley SC with Mr G Hickey (Plaintiff)
Mr N Chen (First defendant/First cross claimant)
Mr R Sheldon (Second defendant/Cross defendant)SOLICITORS: Keddies (Plaintiff)
Sparke Helmore (First defendant/First cross claimant)
Tress Cox (Second defendant/Cross defendant)
JUDGMENT
Table of Contents
A. INTRODUCTION [1] – [12] Nature of the case [1] – [3] Parties [4] – [7] Issues for determination [8] Background [9] Credibility of testimony [10] Summary of findings [11] Assessed heads of damage [12] B. REVIEW OF LIABILITY EVIDENCE [13] – [109 Witnesses who gave oral evidence [13] – [14] Documentary evidence on liability issues [15] – [39] RTA documents [16] – [20] Exhibit “B” – 20 documents [21] – [39] Injury to plaintiff on 18 April 2005 [40] – [62] Version of the plaintiff [41] – [44] Version of Mrs Karakitsos [45] – [62] Oral evidence on glazing issues [63] – [79] Mr Bechara [64] – [67] Mr Simpson [68] – [79] Expert evidence on liability issues [80] – [109] Dr Cooke – architect [82] – [96] Dr Jacob – glass engineer [97] – [109] C. LIABILITY FINDINGS [110] – [263] Consideration of Issue 1 – Glazing history of the premises [111] – [115] Consideration of Issue 2 – Factual circumstances of the plaintiff’s injury [116] – [153] Undisputed facts [117] – [124] Resolution of disputed facts [125] – [153] Consideration of Issue 3 – Duties of care, breaches and causation of harm [154] – [180] Duties of care [161] Duty owed by RTA [162] Duty owed by managing agents [163] – [177] Content of duties of care owed by respective defendants [181] – [188] Content of duty owed by RTA [184] – [187] Content of duty owed by managing agents [188] Breaches of duties of care [189] – [235] S 5B of Civil Liability Act 2002 [190] – [197] Facts common to both defendants [198] – [199] Breach by managing agents [200] – [212] Breach by RTA [213] – [235] Causation of harm [236] – [240] Consideration of Issue 4 – Contributory negligence [241] – [252] Consideration of Issue 5 – Apportionment between defendants [253] – [263] D. REVIEW OF DAMAGES EVIDENCE AND ISSUES [264] – [365] Review of evidence of plaintiff’s pre-injury situation [265] Pre-injury health history [266] Pre-injury work history [267] – [270] Review of evidence of plaintiff’s post-injury situation [271] – [294] Ambulance attendance [272] Initial hospital treatment [273] – [277] Subsequent treatment and rehabilitation [278] – [282] Evolution of disabilities [283] – [289] Post-injury attempts at work [290] – [294] Review of medical reports [295] – [365] Treatment reports [296] – [302] RPAH clinical notes [297] – [299] RPAH Pain Management Centre [300] Dr Keir [301] Dr Tan [302] Reports obtained by plaintiff’s solicitor [303] – [342] Dr Bodel [304] – [313] Dr Clark [314] – [326] Mr Gilfillan / Ms Myburgh [327] – [338] Ms Davidson [339] – [342] Reports obtained by defendants [343] – [365] Dr Mitchell / Mr Brown [344] – [350] Ms Zeman [351] – [353] Dr Fry [354] – [365] E. FINDINGS ON DAMAGES ISSUES [366] – [387] Findings concerning the plaintiff’s injuries [367] – [369] Findings concerning plaintiff’s ongoing disabilities [370] – [374] Findings concerning effects of injuries on employment prospects [375] – [384] Mitigation issues [385] – [386] Life span of plaintiff [387] F. DAMAGES ASSESSMENT [388] – [486] Non-economic loss [389] – [394] Past loss of earning capacity [395] – [421] Future loss of earning capacity [422] – [444] Past superannuation losses [445] Future superannuation losses [446] Past domestic assistance [447] Future domestic assistance [448] – [464] Future out-of-pocket expenses [465] – [468] Past out-of-pocket expenses [469] – [485] Summary of damages assessment [486] G. DISPOSITION & ORDERS [487] – [489] Disposition [488] Orders [489]
A. INTRODUCTION
Nature of case
1. By his third further amended statement of claim filed on 18 May 2009, the plaintiff claims damages for alleged negligence against the owner and against the managing agent of rented residential premises.
2. On 18 April 2005, the plaintiff received injuries when he allegedly tripped and fell whilst walking up entrance stairs in the course of re-entering the premises he was a co-lessee. During the fall, the plaintiff claimed his right hand and forearm impacted with, and then penetrated and shattered, a glass panel forming part of the entrance door when he fell forward against that door. The resultant laceration severed the nerves, tendons and associated soft tissues in the plaintiff’s right forearm and wrist.
3. This injury has left the plaintiff with scarring and lasting disability to his dominant right hand and forearm. The plaintiff’s claim is that the glass panel which broke, comprised unlaminated decorative glass, instead of safety glass, and as a consequence, it was liable to cause lacerating injuries when broken by human impact, as envisaged by Australian Standard AS – 1288, as it applied at the time.
Parties
4. The plaintiff, Adrian Hunt was a co-lessee of a rented house situated at 56 Frederick Street Ashfield in the state of NSW [“the premises”]. The plaintiff’s partner at the time, Mrs Despina Karakitsos, was a co-lessee of the premises.
5. The first defendant, the Roads and Traffic Authority of NSW [“RTA”] is the owner and lessor of the premises.
6. The second defendant, Glowroar Pty Limited trading as Century 21 J Brough & Son [“the agent”] was the managing agent for the rental of the premises to the plaintiff and his partner at the time.
7. On 31 October 2008 the first defendant, the RTA, served a cross claim against the second defendant, its appointed managing agent for the premises.
Issues for determination
8. Notwithstanding that the facts giving rise to the plaintiff’s claim were within a relatively short compass, the parties identified a large number of factual and legal issues that stood between them. They were unable to narrow those issues. I consider that the liability issues can be conveniently distilled into the following formulation of topics:
Issue 1 : The history and state of the glazing in the premises;
Issue 2 : The factual circumstances of the plaintiff’s injury;
Issue 3 : Whether the respective defendants were in breach of the respective duties of care owed by them, and if so, whether the plaintiff has established the liability and causation matters required to be proven according to the provisions of the Civil Liability Act 2002 [“ CL Act ”];
Issue 5 : The extent, if any, to which liability should be apportioned as between the defendants, including on the first defendant’s cross claim against the second defendant.Issue 4 : Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent;
Background
9. The plaintiff was born in 1974. He was aged almost 31 years when he was injured, and was aged 35 years at the hearing. He was living at the premises in a domestic relationship with his girlfriend, Mrs Karakitsos, and her daughter. Mrs Karakitsos and the plaintiff were the joint lessees of the premises where the injury occurred. Before his injury the plaintiff worked variable hours as a staging assistant and technician in the rock music entertainment industry.
Credibility of testimony
10. The issue of credibility of the testimony of both the plaintiff and of Mrs Karakitsos was central to the resolution of the key liability issues. Following my review of the entire evidence, oral and documentary, I have concluded that the plaintiff’s evidence on the economic loss aspect of his damages claim has been overstated. To this extent, I have found that his credit has been undermined to a degree, but not entirely. For the reasons I have set out in my judgment, notwithstanding that the plaintiff’s credit has been impugned with regard to his claim for loss of earning capacity, I have concluded that I prefer the evidence of the plaintiff to that of Mrs Karakitsos, concerning my findings on the manner in which the incident in question occurred. The reasons for my credit findings concerning the evidence of the plaintiff appear in the sections of my reasons dealing with the plaintiff’s claim for loss of earning capacity : paragraphs [395] to [421], and in my consideration of the liability matters arising from the evidence of the plaintiff and Mrs Karakitsos under Issue 2 : paragraphs [126] to [153].
Summary of findings
11. I have found that the plaintiff has established that his injuries were caused by the negligence of each of the defendants. I have reached this conclusion on a consideration of the liability and causation principles requiring consideration under general common law principles and pursuant to the considerations required under the CL Act. I find that the defendants have failed to establish any contributory negligence on the part of the plaintiff. I have assessed the plaintiff’s entitlement to damages in the sum of $843,136. In apportioning the respective responsibilities for the plaintiff’s damages as between the defendants, I have found that the first defendant has succeeded on its cross claim against the second defendant such liability should be borne by the defendants in the ratio of 25 per cent by the first defendant RTA and 75 per cent by the second defendant managing agent.
Assessed heads of damage
12. A total of 9 claimed heads of damage required assessment. The parties made disparate submissions on quantum based on differing assumptions. The heads of damage claimed by the plaintiff and the submissions of the parties are listed below, together with paragraph references to my assessment of the various heads of damage claimed:
Head of Damage Claimed by Plaintiff Paragraphs (a) Non-economic loss (b) Past loss of earning capacity (c) Future loss of earning capacity (d) Past loss of superannuation (e) Future loss of superannuation (f) Past domestic assistance (g) Future domestic assistance (h) Future out-of-pocket expenses (i) Past out-of-pocket expenses Totals
B. REVIEW OF LIABILITY EVIDENCE
Witnesses who gave oral evidence on liability issues
13. The following 6 witnesses gave evidence on the liability issues:
(a) The plaintiff, Mr Adrian Hunt. His evidence on the liability issues is summarised between paragraphs [41] to [44];
(b) Mrs Despina Karakitsos, the plaintiff’s former girlfriend and co-lessee. Her evidence on the liability issue is summarised between paragraphs [45] to [62];
(c) Mr Naam Bechara, a maintenance, handyman and cleaning contractor engaged from time to time by the second defendant agent to carry out work on the first defendant’s properties. His evidence on the liability issues is summarised between paragraphs [64] to [67];
(d) Mr Timothy Simpson, a real estate agent who was the second defendant’s responsible managing agent concerning the letting of the premises in question to the plaintiff and to Mrs Karakitsos. His evidence on the liability issues is summarised between paragraphs [68] to [79];
(f) Dr Leon Jacob, an engineer who was an expert in the manufacture, properties and deployment of glass used in building work. His evidence on the liability issues is summarised between paragraphs [97] to [109].(e) Dr Richard Cooke, a consultant architect who gave evidence on glazing issues. His evidence on the liability issues is summarised between paragraphs [82] to [96];
14. With the exception of the plaintiff and Dr Cooke, the remainder of the above witnesses were called by the defendants in their respective cases.
Documentary evidence on liability issues
15. The documents tendered on the liability issues are summarised in the paragraphs that follow.
RTA documents
16. Exhibit “D1.4” comprised a document entitled RTA Invitation to Tender, dated April 1998. The document invited tenders for the management of residential properties owned by the RTA. One of the objects of the tender was for the management of all repairs and maintenance activities concerning the properties which were the subject of the tender.
17. Incorporated into the same exhibit, was a further RTA Invitation to Tender document dated May 2002 which was in similar terms to the 1998 version which was tendered as Exhibit “D”, but with the full document attached. The indemnity clause found in Section 14 of the tender document was of particular relevance to the cross claims. Section 14 of the 2002 Residential Property Management Agreement that was annexed to the tender document relevantly stated:
“ INDEMNITY
The Agent indemnifies RTA from and against all actions, claims, costs, losses, expenses and damages (including the costs of defending or settling any action or claim,) in respect of:
(b) personal injury (including death) or illness to any person or loss of, loss of use of, or damage to any property or claim for breach of confidence or privacy or misuse of Personal Information; arising out of or by reason of anything done or omitted to be done by the Agents, its officers, or employees, in the performance of the Services.”(a) loss, loss of use of, or damage to property of RTA; or
18. Schedule 4 of the agreement between the defendants incorporated a list of rental properties in the RTA property portfolio that was the subject of the property management under this agreement. That schedule listed a total of 540 residential properties, of which 75 were located within the Ashfield area. Those properties involved a stated total annual rent turnover of approximately $6.93m.
19. The exhibit included a copy of an undated letter from the RTA addressed to the second defendant which was marked by the second defendant agent as having been received on 1 July 2002. The letter was addressed to Mr Tim Simpson and advised that his company, the second defendant, was the successful tenderer for the management of residential properties held by the RTA. The new property management contract was stated to commence from 1 August 2002 following on from the 1998 agreement.
20. Schedule 6 of the contractual documents between the defendants required that insurances be effected for public liability. A requirement of this provision was for the RTA to be listed as an additionally named insured, including for $10m public liability insurance cover in respect of any single occurrence.
Exhibit “B” – 20 documents
21. Exhibit “B” comprised a bundle of 20 documents touching upon the liability issues. In the paragraphs that follow between [22] and [39], for completeness, I set out a summary of the key provisions of those documents.
comprised a NSW Police COPS report dated 1 October 1998, that related to a break-in incident at the premises on 30 September 2005. The incident involved the side door to the premises. I infer from the description of the premises in the evidence that this is a reference to the main entrance door at the side of the house. The police report described the incident in the following terms:
“Between 4.00 pm and 7.00 pm on 30.09.98 unknown person/s have broken into the victim’s house and stolen the stated property. Entry was gained by smashing glass in the front door and when this was unsuccessful the entire door was kicked from the frame …”
23. Document 2
consisted of a letter written by a welfare support agency on behalf of a previous tenant of the premises. The letter, dated 15 October 1998, was addressed to the second defendant agent and requested that something be done by the landlord about the security of the premises because the tenants then in residence in October 1993, had just experienced their third break-in.
24. Document 3 consisted of the residential tenancy agreement dated 2 September 2002 entered into between Mrs Karakitsos, the plaintiff and the RTA.
consisted of an e-mail dated 20 July 2005 from the second defendant’s property manager named Ana, addressed to the RTA property manager. In that e-mail she recounted a conversation between herself and Mrs Karakitsos about the incident and attached a number of photographs of the door. The relevant portion of the e-mail stated:
All she said she had no idea how it happened (this happened sometime in the morning as Adrian was leaving home for work). He left closed the door then (sic) back went because he forgot something in the house and that (sic) when it happened…”“… I wasn’t at work the day (sic the) accident happened. When I got back to work I tried several times on (sic) few days to get in touch with tenants but no luck, I went and left my business card with message under the front door, thats (sic) when she rang, until maybe almost a week later. I visited and I spoke with tenant Des (tenant) on site, she had no complaint or bad mouth about what happened whatsoever. She even offered she would pay for the door/glass . (sic) but very nice and friendly during our conversation on site.
26. Document 5 consisted of an e-mail dated 26 September 2005 from Mr Ross Calvert, an RTA property manager, responding to the second defendant’s request for attention to be given to the security of the premises. The e-mail makes reference to the front door having been repaired. The e-mail relevantly stated : “The back door would also need to be repaired if appropriate”.
27. Document 6 consisted of a 4 page maintenance and repair schedule kept by the RTA concerning historical details of repairs and maintenance carried out to the premises between 1 January 1996 and 25 October 2007 totalling $12,793.30 being the total amount paid over those years by the second defendant on behalf of the first defendant, concerning repairs and maintenance to the premises. The document contained three relevant entries. The first was dated 23 October 1996 and referred to an expense of $204.06 paid to the Department of Housing for repair of the front entrance to the property following a break-in. The second was dated 28 October 1998 and referred to the amount of $175 paid to NG Bechara & Sons for repairs to glass following the smashing of the front door and the damaged timber on the frame of the door. The third was dated 24 March 2005 and was for the amount of $136.40 payable to Mick’s Glass Glazing to replace window glass. The fourth was dated 18 May 2005, also payable to Mick’s Glass Glazing, and was for the amount of $229.90 for replacing the timber framed door with safety glass in respect of the incident in question.
28. Document 7 comprised a letter from Mr N. Bechara of NG Enterprises Pty Ltd advising the exhibits clerk of the court that all invoices in connection with the premises prior to 2000 have been destroyed.
29. Document 8 comprised a copy of an invoice from NG Enterprises Pty Ltd dated 18 April 2004 invoicing the second defendant for repairs to a broken fence at the premises.
30. Document 9 consisted of a copy of an invoice from NG Enterprises Pty Ltd dated 3 March 2005 invoicing the second defendant for trimming of trees and rubbish removal from the premises.
31. Documents 10 to 12 consisted of ASIC searches of the company N & G Enterprises Pty Ltd to reveal that one of the directors of the company was Mr Naim Bechara.
32. Document 13 consisted of an invoice from Mick’s Glass & Glazing Service Pty Ltd dated 11 March 2005 confirming that work was done at the premises in hacking out and replacing 3 mm Flemish glass in a timber framed window in the dimensions 800 mm x 300 mm.
33. Document 14 consisted of an invoice from Mick’s Glass & Glazing Service Pty Ltd dated 6 May 2005 confirming that work was done at the premises carrying out installation of 6.76 mm safety glass, involving hackout and replacement of the timber framed door, the glass being in the dimensions 1250 mm x 300 mm.
34. Document 15 consisted of an RTA message to the second defendant dated 18 September 1998 approving repairs and maintenance of the property in the sum of $5466.
35. Document 16 consisted of a facsimile transmittal sheet for a facsimile from the second defendant to the RTA dated 10 October 1998 communicating details about access difficulties to the property concerning maintenance issues.
36. Document 17 consisted of a facsimile transmittal sheet for a facsimile from the second defendant to the RTA dated 9 October 1998 communicating details concerning a request for greater security measures to be taken at the property.
37. Document 18 consisted of a facsimile transmittal sheet for a facsimile from the second defendant to the RTA dated 10 October 1998 communicating details about access difficulties to the property concerning maintenance issues.
38. Document 19 consisted of a facsimile transmittal sheet for a facsimile from the second defendant to the RTA dated 10 October 1998 communicating details about access difficulties to the property concerning maintenance issues.
39. Document 20 consisted of a letter dated the 7 July 2000 from a property officer employed by the second defendant. The letter was addressed to the RTA confirming the result of a recent inspection of the premises.
Injury to the plaintiff on 18 January 2005
40. The plaintiff and Mrs Karakitsos each gave differing versions of the circumstances in which the plaintiff was injured.
Plaintiff’s version of events
41. The plaintiff’s version of the events in question was that at about 7:15pm in the evening of Monday, 18 April 2005, as he was leaving the premises where he lived with Mrs Karakitsos, he pulled the glass panelled main entry door closed behind him. He said that he then descended halfway down the stairs when he realised he had left his keys inside the premises. He said that as he turned around to re-enter the premises, he lost his footing and tripped on the second step, and in doing so he lost his footing and began to fall towards the door. In the course of these events he said he put his right hand out to stop his fall and as he did so, his right hand broke and penetrated a centre glass panel within the door. It was in these events that he lacerated his right hand and forearm.
42. The plaintiff stated that he had tripped whilst he was about two steps down from the top steps of the entrance to the premises and walking up the stairs. He stated that after he had put his arm through the glass panel he was standing with his feet on two different steps, one below the other.
43. The plaintiff acknowledged that immediately before the incident he had a “few words” of “slight disagreement” with his girlfriend, Mrs Karakitsos. He denied that the disagreement was about him not paying his share of the rent for the premises. He also denied that his girlfriend had asked him to leave the house and to return the key if he was not able to pay the rent. He stated that the disagreement was over his working hours and the care arrangements involved in looking after Mrs Karakitsos’ daughter.
44. Mr Hunt denied that he had deliberately pushed his arm towards the entrance door immediately before his injury. The evidence of Mrs Karakitsos provided a different perspective of the events in question.
Mrs Karakitsos’ version of events
45. Mrs Karakitsos, who worked as a bartender, was called as a witness in the first defendant’s case. She and the plaintiff had been co-lessees of the premises between 2002 and 2005. She and the plaintiff had been in a personal domestic relationship during that period and they had lived in the premises together, along with Mrs Karakitsos’ six year-old daughter from an earlier relationship. It was clear from the evidence of Mrs Karakitsos that she held resentment towards the plaintiff over financial matters to do with the sharing of rent for the premises and concerning aspects of their former relationship.
46. Her evidence was directed to 3 main issues, the first being the history of the tenancy, the second being an earlier glass breaking incident on the premises associated with a break-in, and the third being the circumstances surrounding the plaintiff's injury.
47. In relation to the first issue, Mrs Karakitsos described how the initial lease for the premises had been signed for a rental of $260 per week with provision for annual marginal increases. She related her account of the arrangements that she had with the letting agent and with the plaintiff concerning the payment of rent. She related interpersonal difficulties which she claimed to have arisen between the plaintiff and herself concerning the timely payment of his share of the rent. In my view, these issues are of only peripheral bearing on the case and I do not consider it necessary to further describe them or to attempt to reconcile discrepancies between the evidence of Mrs Karakitsos and the plaintiff on these matters.
48. In relation to the second issue, Mrs Karakitsos described an incident of an attempted break-in at the premises. She described how, on 9 March 2005, she had thwarted an intruder from entering the premises through the glass panelled veranda door to the front bedroom of the premises. She described how, at that time, an intruder had broken a glass panel in the front bedroom of the premises and was attempting to gain entry. She described how she had seen the intruder off the premises by becoming aggressively vocal towards him. She stated that this attitude on her part had frightened off the intruder.
49. In relation to the third issue, Mrs Karakitsos gave detailed evidence on the events leading up to and following the incident in which the plaintiff came to be injured. There were aspects of her evidence that differed significantly from the evidence given by the plaintiff in a number of material respects. Those differences are analysed in my reasons in the consideration of Issue 2. In the meantime the differences are identified in the following paragraphs.
50. She claimed that on the evening in question, a little before 7:00pm, the plaintiff had arrived home and a conversation then ensued between them concerning money she claimed the plaintiff owed her for rent and other costs that had accrued over a period of time.
51. She stated that she asked the plaintiff for money in a conversation that was not polite and involved “monosyllabic and swear words between both of us”. She claimed that she told the plaintiff that she wanted him out of the premises. She claimed that she had watched him whilst he made his exit to the door after taking a few items in a back pack. She stated that she was behind him as he made his way to the door and that she was uttering “profanities as he was walking towards the door”. She claimed to have asked him for the keys to the house and she claimed that he refused to hand over the keys to her.
52. She stated that at this time the door was ajar and that they “… were both involved in a heated discussion that I would blatantly call an argument”. She agreed with the proposition that she was “screaming abuse” at the plaintiff at this time. She claimed that she threatened to call the police if the plaintiff did not hand over the keys. She claimed that the plaintiff responded to her statement by inviting her to call the police.
53. Mrs Karakitsos stated that she had then turned from her position in the corridor to walk to the telephone in order to call the police. She stated that in these events, the hinged entrance door to the premises was ajar to the extent of it being about one third open. She stated that as she was taking a couple of steps away from where the plaintiff was standing and was walking towards the telephone. She said that at this time she had her back turned toward the plaintiff.
54. Mrs Karakitsos claimed that she had taken two or three steps down the corridor towards the telephone when she heard the noise of glass breaking. She variously described it as cracking or breaking glass, but later agreed she had heard the sound of smashing glass. She stated that she then “spun” around toward the plaintiff to see his flat palm “coming through the glass door”. She said that in slow motion she saw glass shards falling to the floor at the same time. She stated that on seeing these events she made her way to the door. She said she observed that the plaintiff was obviously “in complete shock” due to pain. She claimed that the plaintiff was initially standing upright on the step, looking at his hand, and he then fell backward into the driveway, at which time she realised the full extent of his injuries.
55. When the detail of her description of these events was explored in cross-examination Mrs Karakitsos added further detail to her account. She sought to give evidence about another alleged incident that occurred some time beforehand, and before the incident in question, in which she alleged the plaintiff had caused damage to another door in the house. The allegation by Mrs Karakitsos of the plaintiff having put his arm through another door in the house on an earlier occasion was not a matter that was put to the plaintiff in cross-examination. Mrs Karakitsos suggested in her evidence that the plaintiff deliberately put his hand through the glass panel of the door on 18 April 2005.
56. In cross-examination Mrs Karakitsos agreed that, her recollection was as follows:
“Q. I want to suggest to you that when he put his hand through - when his hand went through the glass he said nothing about calling the police for this as well before it happened, isn’t that right?
A. No, that’s incorrect.Q. What I want to suggest to you is you were having a few words with Mr Hunt and he left and then the next thing that you knew was you heard the smashing of glass and saw his hand extended through the broken glass?
A. Correct.Q. I want to suggest to you that you only made up this story about him deliberately putting his hand through out of malice towards him?Q. I want to suggest to you that when that happened the door was in fact closed, not partially open?
A. No, the door was ajar. I’m sorry, your suggestion is incorrect.
A. You are incorrect, because I don’t hold any malice towards Mr Hunt, so I’m sorry, I must disagree with you and whilst you are making this accusation the law of gravity cannot be disputed. If he tripped he would have fallen within the house. He was standing upright. I do not care and I cannot state it enough whether or not Adrian has a happy life or not, because I don’t have any emotion or thought regarding him.”
57. Mrs Karakitsos stated that after she had realised that the plaintiff had been injured, she ran inside the house and obtained a pillowcase to wrap around the plaintiff’s arm in order to try “to stop him from bleeding to death”. She stated that she also rang the ambulance, and after binding the plaintiff’s arm with the pillowcase, and keeping it raised above his head, she waited for the ambulance to arrive. She said that later, when the ambulance arrived, she stepped away from the plaintiff in order to allow the ambulance personnel to carry out their tasks.
58. Mrs Karakitsos stated that the ambulance that first arrived at the scene was not equipped with morphine. She stated that shortly afterwards, a second ambulance arrived. She stated that the plaintiff was taken to RPAH in the first ambulance, and she later followed in that second ambulance.
59. She stated that shortly after the incident, she made contact with a real estate agent employed by the second defendant to arrange for repairs of the broken glass to be carried out. She also described visiting the plaintiff in hospital, and her subsequent contact with the plaintiff.
60. In cross-examination Mrs Karakitsos conceded that she bore some resentment toward the plaintiff over money arrangements between them and thought that, because of her perception that she had been paying for him, she was taking money out of her “child's mouth”. She agreed that in these circumstances she felt her “daughter was hard done by”.
61. Mrs Karakitsos described how, after several months, during which the plaintiff was being looked after by his mother at his mother's home, she had an expectation that the plaintiff would return to live with her and her daughter, she became unhappy about the situation and ended the relationship. This culminated in Mrs Karakitsos placing the plaintiff’s possessions outside of the premises covered by a tarpaulin. She stated that at that time she had left a message with the plaintiff's mother in order to arrange for his possessions to be collected because she was “not going to wait and wait and wait for him to come and do so himself”. These events occurred in October 2005.
62. Mrs Karakitsos stated that there had been no contact between herself and the plaintiff since that time. She claimed that she did not wish him any ill harm and was indifferent to the outcome of the trial. She stated that whilst she had agreed to give evidence at the trial, she said of the plaintiff that she was not “trying to get him”. I have analysed this evidence in connection with my credit findings relating to the evidence of Mrs Karakitsos and the plaintiff.
Oral evidence concerning glazing and repair issues
63. Following the plaintiff’s injury, an employee of the second defendant managing agent arranged for the glazing to the premises to be repaired. The details of those repairs are within Exhibit “B”. Limited oral evidence was called from the handyman cleaner who had been engaged by the agent and from the principal of the agent company concerning those repairs.
Mr Naam Bechara – handyman
64. Mr Naam Bechara, a handyman cleaning contractor, was called by the second defendant to give evidence. He had been engaged in carrying out building management work for about 35 years, including carrying out work for the second defendant from time to time. The scope of his evidence was limited. In his evidence in chief, he stated that he never replaced windows himself. He said that if he had to repair a window, he would call a glazier. In his evidence in chief, he gave no evidence of any repairs carried out to the glass that was the subject of these proceedings.
65. In cross-examination by the first defendant, Mr Bechara said that he worked as a building manager for the second defendant, but he could not remember which particular property manager he had dealings with at the time of the relevant events. He stated that his system of work was that he would be telephoned by the agents if work needed to be done, and once he had completed his work, he would send an invoice to the agent for payment.
66. In cross-examination by the plaintiff, Mr Bechara acknowledged that essentially, his work was that of a handyman. In that capacity he would occasionally patch up brickwork, remove rubbish, carry out cleaning and maintenance work, and the like.
67. The evidence of Mr Bechara did not directly touch on any factual matters concerning the issues between the parties as he could not throw any light on historical glazing issues concerning the premises. He had no relevant paperwork for these issues.
Mr Timothy Simpson – managing agent for the premises
68. Mr Timothy Simpson, a real estate agent and proprietor of the second defendant company, ran a real estate business that had undergone several name changes over the years. He stated that in 2002, his company had successfully tendered for the management of some properties owned by the RTA, including the property that is the subject of these proceedings. That tender followed on from his earlier 1998 property management contract.
69. In his evidence in chief, Mr Simpson stated that he did not have much paperwork relating to the particular tender. He stated that “at some time” he had a conversation with someone from the RTA about insurance issues. On matters relevant to the claim between the plaintiff and the defendants, he stated that he did not know anything about the difference between annealed glass and safety glass.
70. In cross-examination by the first defendant Mr Simpson stated that he had been in the real estate industry over 40 years and had been licensed for over 30 years of that time. He stated that he was the principal of the agency. He stated that at some stage, a long time ago, he commenced managing properties on behalf of the RTA. From 1998, in this capacity, as a principal of the business, he said he has managed hundreds of such properties.
71. Mr Simpson confirmed that both under the 1998 and 2002 agreements his company had with the RTA, he managed properties for the RTA in the Ashfield area.
72. When asked about the incident which was the subject of these proceedings it was clear that Mr Simpson had no personal recollection of the events. In this regard his evidence was:
“Q. You're aware, are you not, that there's a suggestion that there was some broken glass at the premises of 56 Frederick Street, Ashfield in 1998?
A. I have a vague recollection, but very vague, it's so long ago I - personally I didn't handle it myself. So the staff did most of the work and I sort of oversee.”
73. Mr Simpson was asked questions about the system which his company had employed in connection with glazing work on rental properties. He agreed that part of the system involved obtaining quotes and, under the 1998 agreement with the RTA, his company was authorised to effect repairs under a certain amount without referring to the RTA for approval. Mr Simpson was asked questions about the 2002 agreement his company had entered into with the RTA. He stated that he had never received the contract in respect of that agreement. He said that he had only ever seen a letter concerning the contract.
74. In cross-examination by the plaintiff, Mr Simpson acknowledged that in 1998, his company managed over 1000 properties, around 300 of which were RTA properties. He did so with the assistance of about six staff members including himself. It appears his estimate of the number of properties he managed for the RTA was an understatement when regard is had to Exhibit “B”.
75. Mr Simpson agreed that his company would from time to time call upon tradespeople as needed, including glaziers in the event that work needed to be done but first, the practice was to obtain quotes. He described Mr Bechara, with whom he was familiar, as a cleaner, a handyman who “does everything”. When asked whether he knew the difference between annealed and safety glass he stated that he did not know the difference and had “no interest to find (sic for out) that either”.
76. Mr Simpson confirmed that his company had procedures in place for informing staff about changes to regulations or standards that might be applicable to residential properties. He stated that over time, the procedures of his company in this regard had changed many times.
77. Mr Simpson agreed that in 2005, after the plaintiff’s injury, the door in question had been replaced. He agreed that on the occasion in question, in 2005, a property manager employed by his company, a person named Ana, had arranged for a replacement of the door with safety glass, through a company called Mick’s Glazing.
78. Mr Simpson was asked if he could explain why, in 1998, someone from his company didn’t arrange for a glazier to look at the door where the glass had been broken. He stated that the door had been replaced in 2005 because there had been an injury and in consultation with the RTA, it was decided to replace the door with safety glass. He agreed that this was done in order to avoid another injury. He agreed that having large sheets of glass as part of the door meant there was always a risk of an accident.
79. Mr Simpson stated that if the need arose for the replacement of glass in a door with safety glass, at the relevant time, he would have had a discussion with the responsible person at the RTA. He added that in this particular instance, he did not have any direct recollection of anything like that having occurred. He also stated that he doubted that he had retained archived copies of the various editions of his procedures manuals covering the period between 1998 and 2005. In this regard, he said that his company changed computers from time to time and when he disposed of them, the information on them was destroyed for security reasons. He stated that he did not keep his files for indefinite periods of time.
Expert evidence on liability issues
80. The plaintiff tendered expert (3) reports prepared by Dr John Cooke, a consultant architect. Those reports were respectively dated 24 July 2007, 8 January 2009 and 14 April 2009 : Exhibit “C”.
81. The first defendant tendered 2 expert reports from Dr Leon Jacob, an engineer who was involved in the glass technology, design and manufacture. Those reports were dated 25 January 2008 and 31 July 2009 : Exhibits “D1.2” and “D1.3”.
Dr John Cooke – consultant architect
82. Dr John Cooke, a consultant architect, was called to give oral evidence in the plaintiff’s case. Dr Cooke had prepared 3 reports. These were respectively dated 24 July 2007, 8 January 2009 and 14 April 2009. They were tendered and marked Exhibit “C”. Dr Cooke carried out an inspection of the premises on 30 May 2007 in order to assist him in the preparation of his reports.
83. In essence, the effect of Dr Cooke’s first report was that at the time of construction of the premises, the use of annealed glass rather than safety glass was permitted. Dr Cooke was of the view that the defendant should have installed safety glass at the time of the glass repair in March 2005 as it was a statutory requirement to do so under the Building Code of Australia. [“BCA”] He based that view on the fact that there were previous break-ins and an authorised glazier had attended to make repairs. Dr Cooke stated that if the glass, in question had been earlier replaced with safety glass it would have been unlikely that the plaintiff would have suffered lacerations, as laminated glass would not have allowed penetration of the panel by the plaintiff’s hand.
84. In the elaboration of his opinions set out in his first report, Dr Cooke referred to the provisions of Ordinance 70 made under the Local Government Act 1919 as it applied from 1 January 1983 concerning compliance requirements with AS 2208 and AS 1288.
85. Dr Cooke pointed out that under the 1993 amendments to AS 1288 clause 5.8(a), the use of ordinary annealed glass was permitted in doors only if the glass area did not exceed 0.5 square metres in area. This was mandated under BCA clause 3.6.5(a) which also included the requirement of a 40mm wide chair rail. He explained that at the time of the plaintiff’s injury, since the door panel in question did not have a chair rail, it therefore did not comply with either AS 1288 or the BCA requirements because the glass used was not safety glass. He reiterated his view that when repairs were carried out in March 2005, at a time when another broken glass pane in the premises was replaced with safety glass by Mick’s Glazing Services, the first defendant should have installed safety glass to the doors, including the door panel involved in the plaintiff’s injury.
86. In Dr Cooke’s second report he confirmed that he was asked to comment upon the NSW police COPS report that described a break-in at the premises on 1 October 1998 when the glass in the front door was smashed.
87. Dr Cooke explained that at the time the replacement glass was fitted in 1998, annealed glass in that door would only have been permitted under the amendments to AS 1288-1989 if the door had a chair rail not less than 40 mm wide : Amended clause 5.8(a) in AS 1288. He pointed out that the photographs of the building in question revealed that the door did not have a chair rail and therefore, in his view, the use of annealed glass was not appropriate or suitable for residential purposes as it was not in accordance with AS 1288. He pointed out that the 1989 edition of AS 1288 was published on 20 October 1989. Dr Cooke’s view was that, following the break-in in 1998, the owner of the premises should have installed safety glass in accordance with Ordinance 70, clause 53.4 and AS 1288 as amended in 1993.
88. In Dr Cooke’s third report he provided comments on some materials that were forwarded to him to review for that purpose. He noted that the RTA maintenance and repair records show that on 28 October 1998, NG Bechara & Sons, the managing agent’s contractor, invoiced the first defendant for repair works described as “break in glass on the front door smashed and timber on frame damaged” for which an invoice of $175 was raised. Dr Cooke explained that since, in October 1998, AS 1288-1994 “Glass in Buildings – Selection and Installation” was in force, as the panel in question was fully framed and exceeded 0.5 m in area, and did not have a chair rail satisfying clause 3.7 of clause 5.8 of the standard, the repair should have been carried out using Grade A safety glazing material, namely, laminated or toughened safety glass. Dr Cooke pointed out that invoice number 0005385 dated 6 May 2005 and issued by Mick’s Glass and Glazing Service Pty Ltd, shows that the damaged glass was hacked out and was replaced with safety glass at the cost of $209 plus GST. He pointed out that in 1998, using safety glass to carry out the repair would have been relatively inexpensive, and would have involved an expense of about 14 per cent more than the cost for annealed glass.
89. In reviewing the documents that he identified as having been made available to him, Dr Cooke expressed the opinion that the glass panel broken in 1998 and repaired by NG Bechara & Sons using non-safety glass was the same panel repaired in 2005 by Mick’s Glass and Glazing Service Pty Ltd. Dr Cooke’s interpretation of the NG Bechara & Sons invoice was that non-safety glass was used to repair the front door panel in October 1998. He reiterated his view that safety glass should have been used in the repair, both in 1998 and 2005.
90. Dr Cooke said that he expected an organisation like the RTA would have been expected to have had a policy in place for glass repair work.
91. The opinion set out in the reports of Dr Cooke were explored in his oral evidence.
92. In his evidence in chief, Dr Cooke explained that in his view, based on the recommendation of clause 5.1, note 7 of AS128-1989, safety glass should be used when glass is being replaced. He further explained that since 1983 there have been specific safety provisions for the use of safety glass buildings, including doors of the kind in consideration in this case relating to the plaintiff’s injury, where there was a risk of injury from glass due to human impact.
93. Dr Cooke explained, that clause 5.1.2 sets out one of the purposes for using safety glass where glass might be the subject of human impact, namely, to minimise the risk of cutting and piercing injuries.
94. Dr Cooke was of the view that once glass had broken, applying requirements of the applicable Australian Standard, there were two choices with regard to replacement. One was to use safety glass, and the other was to use annealed glass provided that a 40mm wide chair rail was in place. He explained that the term chair rail originated from the common practice of having a lateral rail installed at the height of a chair back, to avoid causing damage by the back of the chair resting against a glass panel. The term is generally applied to lateral rails interrupting the line of what might otherwise be a long glass panel.
95. In cross-examination, Dr Cooke explained that the operation of Ordinance 70 was in force until either 1 January 1992 or 1 January 1993, depending upon the transitional provisions. He explained that Ordinance 70 and Ordinance 71 covered buildings, including residential flat buildings. In respect of domestic buildings designed and constructed after 1 July 1974, compliance was required with Ordinance 70.
96. Dr Cooke confirmed that the way in which an inexperienced person might determine whether glass was annealed glass or safety glass was to look at it in its damaged condition. He said that seeing the photographs he could determine which was which, because of the different fracture patterns that related to these two different types of glass. He stated that when looking at the photographs in this case, he could see that annealed glass had been used in the door and he could tell this since that glass was broken. He agreed that to the inexperienced naked eye, laminated glass did not look particularly different from ordinary glass until it has broken.
Dr Leon Jacob – glass expert
97. Dr Leon Jacob, an expert engineer in glass technology, design and manufacture, prepared 2 reports that were respectively dated 25 January 2008 and 31 July 2008. These were tendered by the first defendant as Exhibits ”D1.2” and “D1.3”.
98. Dr Jacob was provided with a copy of a report from Dr Cooke, along with the plaintiff’s statement of claim and some photographs taken of the entry door to the premises. He noted that the premises had been broken into both before and during the tenancy of the plaintiff. He also noted that a glass panel in the front window had been smashed and replaced following a break-in that occurred in March 2005. Dr Jacob noted that he had been informed that the glass breakage that occurred in the incident required the replacement of glass to the side panel of the door assembly. He carried out an inspection of the site on 25 September 2007. His first report included a number of photographs taken of the door in question on that occasion.
99. On his inspection of the premises Dr Jacob noted that the current door that had been fitted had a large laminated glass panel fitted with a translucent inter-layer to provide privacy and opacity.
100. In his first report, Dr Jacob confirmed that since 1 January 1983, Ordinance 70 mandatorily required that safety glass be fitted to doors and side panels. He provided a history of the evolution of safety criteria for glass in buildings since 1957. From the photograph provided to him, and which was copied as Photograph 1 on page 5 of his first report, he estimated that the infill panel broken by the plaintiff measured about 0.45 square metres to 0.6 square metres in area. He confirmed that at the time AS 1288-1973 permitted 4mm annealed glass in framed doors up to an area of 0.5 square metres. He also noted that AS 1288-1999 permitted the use of such glass panels up to a maximum of 0.3 square metres in area. In his opinion, the original installation would have been considered adequate for its application according to the applicable standard that prevailed at the time.
101. Dr Jacob confirmed that since 1983, reputable and larger glass companies generally replaced all broken glass doors and side panels with safety glass. In his view, at the time the broken side panel to the front bedroom door-window assembly was repaired in March 2005, this would not have triggered a glazier into thinking of the need for safety glass replacement as the side panel was positioned higher than the minimum requirement for safety glass and side panels. This was because the bottom edge of the glass was more than 1200 mm above the finished floor. I infer from this evidence that the same position would have applied in 1998.
102. Dr Jacob rejected the proposition that the first defendant ought to have inspected other glass in the building as a result of the need to replace the glass in the front bedroom window so that all glass would conform to the current Australian standard. He based this view that there was no need for such replacement as it was not new construction. He also observed that the current standard not require all glass doors to be replaced in full compliance with current standards.
103. Dr Jacob stated that glass replacement according to AS 1288 only becomes mandatory for installation of safety glass in connection with building work to which the BCA applies. He stated that whilst the glass industry always endeavoured to replace annealed glass with safety glass in non-compliant glass infill panels, annealed glass was permitted by clause 5.1(f) – AS 1288, provided there was compliance with the panel size requirements. In this regard, it should be noted that Dr Jacob’s opinion was based upon an estimate of the glass area in question.
104. The opinions set out in the reports of Dr Jacob were explored in his oral evidence.
105. In his evidence in chief, Dr Jacob stated that when he inspected the premises in question in September 2007 he was provided with a sample of the broken glass on the door where the plaintiff sustained his injury. After carrying out some checking and research he ascertained that the type of glass in question was called Flemish or Waverley, and it had not been manufactured in Australia for over 40 years.
106. Dr Jacob explained that laminated glass comprised two pieces of glass with a piece of plastic so that glass can be broken but that this would not break the plastic and so this construction prevented penetration through the glass when it was broken, hence the expression safety glass. In contrast, annealed glass had the property of breaking into shards, splinters and jagged edges.
107. In cross-examination, Dr Jacob agreed that persons becoming glaziers were required to qualify through an apprenticeship. He explained that attempts were being made in the industry to require licensing for glazing work. He explained that this was because an untrained person could not readily make the distinction between glass that was annealed or laminated. He stated that the industry was trying to recommend adherence to the Australian Standards, in particular ASS 1288-89, by encouraging people to use safety glass wherever possible, especially in windows and side panels.
108. Dr Jacob acknowledged the distinction between repair work and new construction. He explained that the standard was meant to apply to a new construction. He also explained that in the 1983 version of standard, there was a clause advising people that if glass was broken, they should try and replace it with safety glass, but this clause was taken out because of advice that there was no ability to legislate retrospectively in respect of building work
109. Dr Jacob confirmed that when he had a teaching role in the glass industry, he recommended that the best practice was to replace broken glass with safety glass. He also explained that there was no significant difference in the expense. He also explained that whereas a lay person would have difficulty distinguishing the difference between annealed and safety glass, a glazier should not have that difficulty in detecting the type of glass in question, especially after it had been broken, that is, at the time consideration was being given to replacement of broken glass. He explained the critical consideration concerning whether a replacement broken glass should be carried out with safety glass, was or not the cost, noting that the difference was not significant, but rather, a consideration of whether there is likely to be exposure to human impact, in which case, safety glass was recommended.
C. LIABILITY FINDINGS
110. In the paragraphs that follow I set out my consideration of the liability issues calling for decision.
Consideration of Issue 1 – Glazing history of the premises
111. A consideration of the liability issues must commence with a review of the state of the glazing of the premises. I find that before the incident involving injury to the plaintiff, it was more likely than not that the glazing to the panels in the main entrance door comprised annealed or non-laminated glass. Necessarily, by definition, this did not comprise safety glass. For a number of reasons I find that the glass in question was not safety glass.
112. First, it is clear from the evidence of Dr Cooke and Dr Jacob that it was not the practice or a requirement that buildings of the age of the premises in question had to be glazed with safety glass when built.
113. Secondly, when the records of the October 1998 and March 2005 glass repairs to the premises are examined, the records make no mention of the installation of safety glass. Given that safety glass was more expensive than annealed glass, I infer from the records and the circumstances, which included a system between the defendants for accountability of expenditure for repairs, that if safety glass had been used in these instances of glass repairs, mention of that fact would have appeared in the records of expenditure, at least in the invoice which claimed the cost of the repairs from the RTA. I infer from the absence of any mention of safety glass in these invoices, that non-safety glass was in fact used for the repairs.
114. Thirdly, when Dr Jacob examined a remnant fragment of broken glass shard that was involved in injury to the plaintiff, it was plain to his expert eye that the glass in question was in fact annealed, and therefore was not safety glass. This view was confirmed by Dr Cooke’s consideration of the circumstances, including the description of the breakage pattern, and from his expert interpretation of the photographs.
115. Accordingly, I conclude that the overwhelming probability was that the glazing of the panel in the main entrance door to the premises was either Flemish or Waverley glass, as was described by Dr Jacob following his researches into the issue. On this issue I am persuaded to this view by the evidence of both Dr Jacob and Dr Cooke.
Consideration of Issue 2 – Factual circumstances of the plaintiff’s injury
116. Some of the circumstances surrounding the injury to the plaintiff were not disputed. In the paragraphs that immediately follow, I first set out the undisputed facts, then I identify the areas of factual conflict in the evidence before stating my findings concerning the disputed matters of fact.
Undisputed facts
117. It was common ground that the plaintiff’s injury occurred at the premises at around 7:15pm on Tuesday18 April 2005. It was also common ground that in the context of their longstanding domestic relationship at the time, the plaintiff and Mrs Karakitsos had issues between them of a personal nature, including issues over money matters to do with their joint occupancy of the premises.
118. There was no dispute that shortly before the incident occurred, the plaintiff was in the course of leaving the premises for the stated reason of going to work. There was also no dispute that just before the incident occurred, the plaintiff was on the steps at the front entrance to the premises. The plaintiff’s stated reason for wanting to re-enter the premises, which required that he turn around in order to face the front door before re-entering the premises, was to get a key he had forgotten to take with him.
119. On the plaintiff’s version of events, as he was leaving the premises, he turned so he could re-enter the premises because he had forgotten to take his key with him. On Mrs Karakitsos’ version of events he did so because they were in the midst of a blazing argument over money matters. That argument included the expression of her stated desire for him to hand over his key to the premises, leave the premises, and for him to leave their relationship. Her account of these events was disputed by the plaintiff who claimed he was simply leaving the house in order to go to work, but had to return in order to get his key.
120. There is no dispute that whilst the plaintiff was on or near the second step of the premises and facing the door, his right hand impacted with a large glass panel located within the structure of the door. In these events, the force of the impact was sufficient to break the glass, at which time the plaintiff’s right dominant hand and forearm penetrated the broken glass panel. There is no dispute that in these events, the plaintiff suffered severe lacerations to the right hand, forearm and its underlying nerves, tendons, muscles, and blood vessels, and as a consequence, was in shock.
121. On the plaintiff’s version of events, the breaking of the glass door panel occurred when he slipped whilst walking up the stairs. He claimed that in doing so, he fell forward with his right hand extended so that his hand and forearm made contact with the glass, thereby fracturing the glass, resulting in his hand and forearm penetrating the breaking glass panel so as to cause the lacerations described.
122. On the version of events given by Mrs Karakitsos in her oral evidence, she did not actually see the incident from the beginning, because at the time the incident occurred she claimed to have had her back turned to the plaintiff. She said that she was walking away from the front door, allegedly to make a phone call to the police concerning the dispute she claims to have had with the plaintiff over her request for him to hand over his key. She stated that her attention had been drawn to the incident when she heard the sound of breaking glass, following which she stated that she had quickly spun around and was able to see the plaintiff’s right hand and forearm coming through the breaking glass panel.
123. Mrs Karakitsos also claimed that the plaintiff had deliberately placed his hand through the glass panel. She sought to imply that on a previous occasion, the plaintiff had damaged a door in the premises in a similar way. The plaintiff denied that just before the incident in question, there was a conversation between himself and Mrs Karakitsos about the police being called. He also denied deliberately placing his hand through the door. There was another version of events attributed to Mrs Karakitsos, as recorded by an employee of the agent, to the effect that she had no idea how the incident occurred : Document 4 of Exhibit “B”.
124. There is no dispute that after the laceration of his right upper forelimb, the plaintiff either staggered or fell backwards, and in doing so, he landed on the pavement or driveway beside the entrance to the premises. There is no dispute that Mrs Karakitsos recognised that the plaintiff was in shock following this injury. Commendably, she went to the aid of the plaintiff, called an ambulance, wrapped his injured forelimb in a pillow case and then kept his arm elevated to reduce the bleeding, whilst at the same time comforting him until the arrival of ambulance personnel. The plaintiff thought his arm had been wrapped in a tea towel. I do not consider anything turns on that minor detail.
Resolution of disputed facts
125. The resolution of the disputed facts requires consideration of competing credit issues involving both the plaintiff and Mrs Karakitsos.
Credibility of testimony of the plaintiff and of Mrs Karakitsos on liability issues
126. The evidence of Mrs Karakitsos had a significant bearing on the task of determining the manner and circumstances in which the plaintiff came to be injured in the incident in question. This required an evaluation of the credibility of the evidence that Mrs Karakitsos and the plaintiff gave concerning the relevant events.
127. In approaching this task I have weighed the entire body of evidence in the proceedings, Although I have segregated the liability and damages issues in the structure of in my reasons, and although I have provided separate reasons for my credit findings in respect of the separate issues, I should not be taken to have made separate evaluations of credit according to the separate issues.
128. The starting point of my evaluation of the credibility of the testimony of the plaintiff was the adverse view I had formed of his testimony concerning his economic loss claim. I have set out my reasons for that adverse view at paragraphs [395] to [421] of my reasons, which, shortly stated, was based on an apparent mismatch between the evidence the plaintiff gave as to his pre-injury work capacity and his pre-injury patterns of work and his related earnings. That evidence was not borne out by the evidence comprising his income tax returns, notices of assessment and his bank records.
129. Having formed that adverse view, it becomes necessary to consider whether the conclusions reached concerning the plaintiff’s economic loss claim were indicative of the credibility of his testimony as a whole or in respect of other portions of his evidence. In approaching this task I recognise that it does not necessarily follow, that simply because the credit of a witness has been impugned on one issue, this requires that the credit of the witness should be regarded as having been impugned in other areas of the evidence of that witness.
130. In my consideration of this issue, I came to the view that because of my conclusions on the plaintiff’s economic loss claim, I should weigh the plaintiff’s evidence with a greater degree of caution than might usually be the case, before deciding whether or not to accept his evidence concerning the disputed matters involving the credibility of his testimony on the liability and other damages issues.
131. In undertaking that review I have concluded that I accept the plaintiff’s evidence as to the nature and extent of his injuries, and the physical disabilities that flow from those injuries. I reached that conclusion because the plaintiff’s injury was frank and obvious, and was objectively confirmed by the medical records of RPAH as having a neurological basis. Further, the plaintiff’s resultant complaints of remaining disability were considered by Dr Bodel and Dr Fry to be commensurate with the injury sustained, and the plaintiff’s descriptions of his problems were not otherwise glaringly improbable. These considerations led me to accept the plaintiff’s evidence on the damages issues, other than on the identified aspect of the economic loss claim.
132. Having reached that conclusion, this leaves for consideration the question of whether I should believe the plaintiff or Mrs Karakitsos concerning the conflicting descriptions they gave concerning the manner and circumstances in which the plaintiff came to be injured.
133. Having undertaken that task, and for the reasons that follow, I have preferred the evidence of the plaintiff on these matters rather than the evidence given by Mrs Karakitsos.
134. First, the account of the events described in the evidence of the plaintiff was not fanciful or otherwise improbable, and therefore his account of events called for serious consideration in weighing the evidence. There was nothing about the plaintiff’s account of the circumstances in which he left the premises, or his description of his attempt to return to the premises to pick up the key he said he had left behind, or his description of how he turned on the step, and then tripped or slipped and fell forward with his right arm outstretched so impacted with the glass panel of the door, that aroused suspicion or concern as to the veracity of his evidence. Instead, my initial impression was that subject to weighing the competing evidence, this evidence had the ring of truth about it. Notwithstanding that view, it was necessary to weigh the competing testimony before reaching a concluded view.
135. Secondly, I was unconvinced of the plausibility of the description by Mrs Karakitsos of the plaintiff’s hand having impacted with the door whilst the door was open and ajar. The door was described as having been hung by a standard hinge arrangement, which on an ordinary commonsense analysis, suggests that if the plaintiff’s right hand had in fact impacted against the door whilst it was left ajar and that impact was of sufficient impact to break the glass panel, it seems to me to be more likely that the open hinged door would have given way and swung inwards thereby dissipating the force so that the glass panel would not have broken. In my view that analysis favours the plaintiff’s version of the door having been closed at the time.
136. Thirdly, I was unconvinced that Mrs Karakitsos had an adequate opportunity to have seen what she had described. In the circumstances, where she claimed to have been walking down the corridor and away from the door and towards the telephone in order to call the police in response to the plaintiff’s alleged non-compliance of her request to be given the key to the premises, I consider that she would not have been in a position to have seen the plaintiff initiate the process of impacting his hand with the panel of the door before she had heard the sound of breaking glass which drew her attention to what was happening at the door.
137. The explanation proffered by Mrs Karakitsos, in sequence, involved her walking away from the door, then hearing glass breaking, and then spinning around to see the plaintiff’s hand coming through the glass. I am unpersuaded by her evidence in this regard, and do not accept she made the observations she claimed to have made. Rather, I consider that she has reconstructed her account of the events from assumptions rather than from actual recollection and with ill-will towards the plaintiff, despite her denials.
138. Fourthly, The evidence of Mrs Karakitsos was given with an acknowledgment on her part, that she bore resentment towards the plaintiff. Whilst the acknowledgment of that resentment was a matter that weighed in favour of her credit as a witness, I considered that the resentment she bore to the plaintiff overwhelmed and coloured her evidence to render it unreliable. This became evident when she deliberately saw fit to gratuitously raise and add a matter in her evidence that could only have been aimed at undermining the plaintiff’s case. I consider this to be so notwithstanding her statements to the effect that she bore the plaintiff no ill will. I thought she protested too much on this issue and I consider this is a matter weighs significantly against an acceptance of her credibility as a witness.
139. The evidence in question concerned an alleged earlier incident in which she alleged the plaintiff had deliberately damaged an internal door in the premises, thus giving rise to the not so subtle and unstated innuendo that perhaps the plaintiff had a tendency to put his hand through doors. I discount her evidence in this regard because it was not raised in her evidence in chief and because there was no confirmatory evidence of the damaged door in circumstances where she said such evidence still existed.
140. If the plaintiff had in truth previously acted in that way, in the circumstances, this was a matter that I expect would have been raised in cross-examination of the plaintiff rather than emerging for the first time in the cross-examination of Mrs Karakitsos : Browne v Dunn (1894) 6 R 67. This is so having regard to Exhibit “Q”, which indicates that since 17 November 2005 the second defendant, being the party introducing the evidence of Mrs Karakitsos, knew she was willing to give evidence against the plaintiff’s case, yet this additional matter of detail was not raised in evidence until she raised it herself in a non-responsive answer to cross–examination. I found this gratuitous comment to be unconvincing and clearly aimed at seeking to exact damage to the plaintiff’s case as some sort of revenge in connection with matters arising from their former relationship.
141. Fifthly, Mrs Karakitsos has given apparently inconsistent explanations for events. The first version of the events attributed to her appears in Document 4 of Exhibit “B”. That document is a business record and email communication between the two defendants and is dated 20 July 2005. There, the agent’s property manager, Ana, recorded that Mrs Karakitsos had said she had no idea how the incident happened. She stated it occurred in the morning as the plaintiff was leaving for work when, after closing the door, he went back to get something. The second version of events attributed to Mrs Karakitsos was recorded by Tim, whom I infer from the circumstances, was Mr Simpson. In that version, which is Exhibit “Q”, Mrs Karakitsos is recorded as having said she and the plaintiff were arguing at the time and she raised the allegation that the plaintiff had previously put his fist through dining room “furniture”.
142. These two versions cannot stand together as correct. The material was not objected to when tendered. I recognise that limited weight should be attached to these hearsay accounts, especially where, as is the case with medical histories, the subject matter was not explored in detail with Mr Simpson : Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.
143. Sixthly, the notion that Mrs Karakitsos would, in the circumstances where the plaintiff was named as a joint lessee on the lease, nevertheless consider herself entitled to demand of the plaintiff that he hand over his key for the premises to her, seems an odd and unlikely occurrence. Similarly, I consider it improbable that she would reasonably consider herself entitled to call the police for assistance as she had claimed, in circumstances where there was no evidence that the plaintiff had offered her violence or had threatened her so as to warrant a call to request the presence of police.
144. Seventhly, I was unconvinced of Mrs Karakitsos’ account of events to the effect that there was a heated argument between herself and the plaintiff in which she claimed she was screaming abuse and profanities towards him as he was walking towards the door as she had stated. I consider that her account in this regard was proffered with a degree of self-deprecation in the hope that her evidence would sound more believable. Although I accept that she and the plaintiff had “words”, I consider Mrs Karakitsos histrionically exaggerated these events.
145. Eighthly, in considering the chronology of events, in which Mrs Karakitsos claimed that she had patiently waited until October 2005 for the plaintiff to return to collect his things from the premises, consistent with the theme and content of Document 4 of Exhibit “B” which was dated 20 July 2005, and given the timing of 17 November 2005 note made by the real estate agent of a reported conversation she had with Mrs Karakitsos, in which it was recorded that Mrs Karakitsos had at that time made a decision to assist the first defendant by volunteering to give evidence even before proceedings had been commenced must have been seen to be unhelpful to the plaintiff’s claim : Exhibit “Q”. These matters, taken together with her evidence claiming she still had a damaged item of furniture or a door, and claiming that the RPAH notes would contain relevant confirmation of her assertion, were unconvincing. I consider this to be especially so when I consider that the RPAH notes and ambulance records tendered did not contain the alleged confirmation as claimed by Mrs Karakitsos. No other evidence was sought to be obtained or introduced by the defendants concerning that matter.
146. Finally, noting that Mrs Karakitsos accompanied the second ambulance to the hospital, and given she was identified in the hospital notes as being in attendance as a significant person to the plaintiff, for example, signing the hospital booking in form and speaking with the hospital social worker as recorded in the progress notes, there is no mention within any of the notes to the effect that the plaintiff’s injury was deliberately self-inflicted, as Mrs Karakitsos had sought to convey in her oral evidence.
147. Taking these matters into account both individually and in combination, I am persuaded to prefer the plaintiff’s account of the events as being the more truthful account compared to the descriptions and statements made by Mrs Karakitsos in her evidence where their evidence is in conflict.
148. The 3 significant areas of dispute relate to the circumstances of the plaintiff leaving the premises immediately before his injury, what Mrs Karakitsos actually saw in the events leading to the plaintiff’s injury, and the sequence of events that occurred from the time the plaintiff had left the house until the occurrence of his injury.
Circumstances of the plaintiff leaving the premises
149. Having considered the competing versions of the events leading to the plaintiff leaving the premises just before his injury, I prefer the evidence of the plaintiff to that of Mrs Karakitsos.
150. I do not accept the evidence of Mrs Karakitsos to the effect that she had confronted the plaintiff about rent and money matters and had demanded that the plaintiff leave the premises and hand over his key to the premises. I do not accept that Mrs Karakitsos had a conversation with the plaintiff about the attendance of the police. Instead, I accept the plaintiff’s account of the events, namely that they had words about the plaintiff’s working hours, presumably his on-call hours, and his availability for babysitting of her daughter.
433. Whilst there is evidence within the expert reports that indicates that a production crew member could derive earnings in the range $598 per week gross to $1287 per week gross, consistent with my findings as to the plaintiff’s credit on matters of earning capacity, I do not accept the plaintiff’s evidence either as to his own assessment of his earning capacity in the entertainment industry, or as to the availability of work for him in that industry. I consider his evidence on these matters to have demonstrated unrealistic expectations on his part.
434. I consider that by about April 2011, it would have been almost certain that the plaintiff would have been forced into a situation of finding himself competing for work on the open labour market. In those circumstances, uninjured, he would have been a relatively unskilled person, who without further training, would have most probably been suited only to semi-skilled or labouring work.
435. These likely circumstances of the plaintiff give rise to a difficulty in identifying an appropriate basis upon which to make an assessment of the claim for future loss of earning capacity over the ensuing 28 years from 2011 until the plaintiff reached the retirement age of 65 years.
436. In the absence of specific evidence of a likely earning capacity in the plaintiff, valued in monetary terms, that is, other than in the music or entertainment industry, which I consider was unrealistic for him, I consider that the only rational approach to the undertaking in these circumstances, other than a completely arbitrary approach, is to have regard to published data concerning average weekly full-time male earnings for total employees in Australia. This reveals an amount of $1344.40 per week gross, which, after making allowances for applicable rates of tax and the Medicare levy, is the equivalent of $1039.18 per week net.
437. Having due regard to the plaintiff’s relative lack of work skills and experience, and having regard to the absence in the plaintiff’s circumstances of a steady work history, I consider that the use of undiscounted average weekly earnings as outlined above would not represent an appropriate or fair yardstick by which to measure his probable earning capacity, uninjured. I consider that a discount is required to reflect these factors. However, balanced against the need for a discount is the recognition that the plaintiff impresses as a reasonably intelligent person who would probably adapt to his circumstances if he applied himself. I consider it would be unreasonable to assume that the plaintiff would have always remained unsuccessful in earning significant income over the entire remainder of his working life without some economic benefits accruing to him from maturing over a number of years.
438. Having considered the foregoing factors, I find the appropriate adjustment to the identified average weekly earnings that is required by s 13(2) of the CL Act to reflect the plaintiff’s most likely circumstances but for his injury, is 25 per cent. By this pathway of reasoning I find that but for his injury, in the remaining 28 years of his working life to age 65 years, the plaintiff would, on the balance of probabilities, have earned an average weekly income in a rounded up figure of the order of $780 per week net, this being about 75 per cent of the category of average weekly earnings that I have identified.
439. The third stage of the analysis requires a consideration of whether the plaintiff in fact retains a significant or measurable residual earning capacity even in his injured state, and if so, to what extent should that residual capacity be measured and applied as an offset against the potential earnings he would probably have derived, but for his injury.
440. I have considered the nominated categories of alternative or residual employment as suggested by the experts retained on behalf of the defendant. I have also had regard to the opinions of Dr Fry casting doubt on the applicability of such categories of employment to the plaintiff in the absence of more specific evidence as to the nature and extent of the duties required, including the duration and need for repetition of hand movements required by the identified alternative job descriptions. In view of the commentary of caution from Dr Fry, I reject the categories nominated by those experts, and which Dr Fry has critically reviewed in his report. Those categories have not shown to be suitable for the plaintiff, either in the short or long-term, having regard to the plaintiff’s level of incapacity for manual work and the intrusive levels of pain the is likely to experience with repeated attempts of manual work, including the effect of such pain on his concentration and motivation to continue. Since repeated manual activity is ill-advised for the plaintiff, and is likely to be painful and damaging to the plaintiff, any form of proposed residual work involving manual effort needs to accommodate these difficulties.
441. These circumstances make it difficult to form an assessment of any residual earning capacity retained by the plaintiff. In such circumstances, I consider that I can comfortably accept the concession made by Mr Dooley SC in his written submissions, namely in the ratio of $350 : $800 in respect of the mitigatory earnings which he has suggested as I consider that submission is a conservative one from the perspective of he plaintiff’s interests. In rounded figures, that ratio is 55 per cent. Applying that approach to the plaintiff’s assessed uninjured probable earning capacity of $780 per week net, after allowing a residual earning capacity of 55 per cent, this reveals a loss of earning capacity of $351 per week net.
442. Given the severe nature of the plaintiff’s nerve injury, the persistent ongoing nature of the neuropathic pain, which requires opiate medication, and also recognising the fact that it is the plaintiff’s dominant right hand and arm that is affected so that he should not operate machinery, and that repetitive hand movements could be deleterious for him, and also having regard to the medical evidence generally, I consider the concession made by the plaintiff, expressed in the identified percentage, to be reasonable and very fair to the defendants. I accept that concession.
443. Accordingly, the assessment of a loss of $351 per week net at 5 per cent over 28 years (x 796.6) less 15 per cent for conventional vicissitudes, and deferred for 2 years (x 0.907) yields an amount of $215,562 in respect of the second stage of the assessment of future loss of earning capacity.
444. It remains necessary to combine the calculation emerging from the first stage of the assessment, namely $15,665, together with the calculation from this final stage of the assessment. This reveals a total assessment of $231,227. I therefore assess the plaintiff’s entitlement to damages for future loss of earning capacity in the sum of $231,227.
Past loss of superannuation
445. The convention is for the loss of past employer funded superannuation to be assessed at 11 per cent of the amount assessed to represent past loss of earning capacity. Accordingly, applying that approach, 11 per cent of $30,630 is $3369. I therefore assess the plaintiff’s damages for past superannuation loss in the amount of $3369.
Future loss of superannuation
446. Consistent with the approach taken with respect to the assessment of past loss of employer funded superannuation, applying the same convention to the calculation of future superannuation losses, 11 per cent of $231,227 yields an amount of $25,434. This sum has already been discounted for vicissitudes. I therefore assess the plaintiff’s damages for future superannuation loss in the amount of $25,434.
Past domestic care services
447. The parties have agreed on the amount to be assessed on account of the claim for the value of past domestic assistance in the sum of $22,670. That amount represents the value of the services provided gratuitously to the plaintiff by others, including by his girlfriend, who has been massaging the painful site of his injury for between 45 minutes to one hour per day to alleviate the discomfort the plaintiff feels at that site, in addition to other forms of assistance such as cutting up his food for him and performing various domestic tasks. I therefore assess damages for past domestic assistance in the agreed sum of $22,670.
Future domestic care services
448. The plaintiff claims damages for future domestic assistance in the amount of $69,489. This amount is identified in the plaintiff’s submissions as being derived by the projection of 2 hours of domestic assistance per week at $35 per hour. In contrast, the defendants submitted that there should be no allowance for any such damages.
449. Any award for such damages must necessarily be based on evidence justifying an award. This requires that a review be undertaken of the evidence of the plaintiff and of the expert medical and allied opinions that touch upon this issue.
450. The plaintiff’s evidence was that he has difficulties with his right hand, including with cutting up his food, managing objects and screwing them into place using his right hand, he gets a tearing sensation in his right wrist, he has numbness in a significant proportion of his right hand, fingers and palm, his arm gets tired quickly on use, he experiences trouble with a range of domestic tasks including bed making, holding a fry pan, ironing and shopping other than in small quantities. In my view that evidence, which I accept, justifies an allowance of damages for future domestic assistance. As the plaintiff’s evidence was directed more at the description of his problems rather than an estimation of the time he would require for the provision of the services claimed, it is necessary to review the opinions of the experts to gain insight into the number of hours that should be allowed for quantification of the need for such services.
451. The opinions of the experts provided a range of time estimates for the provision of services to the plaintiff. Those time estimates ranged from an estimate of 5 – 6 hours per week in the opinion of Dr Bodel, approximately 4 hours per week in the opinion of Ms Davidson, some 58 hours per annum in the case of Ms Zeman. When this range is examined it becomes clear that when giving consideration to the reasonable needs of the plaintiff for such services, the experts had not considered all the relevant matters that ought to have been taken into account when arriving at a proper estimate of the time required for such services. I consider that some of these estimates are unduly narrow and of inadequate proportion to the nature and extent of the problems described by the plaintiff concerning the permanent limitations on his activities due to his impaired right upper limb and his reasonable needs that flow from such circumstances.
452. I commence my consideration of these needs with a review of the opinions of the occupational therapists. I consider the occupational therapist based estimation of the times required by the plaintiff for future domestic assistance to be flawed on account of several matters.
453. First, I consider the occupational therapy based assessments to involve an unduly narrow consideration of the plaintiff’s abilities to carry out performance based tasks without regard to the potential deleterious effects on the plaintiff of repetition of tasks, as identified by Dr Fry, albeit that his discussion was centred upon the work setting. In my view there is no material difference when considering manual activity for the plaintiff. I consider this to be a significant matter that tends to favour a medical based assessment rather than an occupational therapy based assessment.
454. Secondly, the allowances made by the occupational therapists, whilst giving the appearance of being task oriented in their analysis of need, seem to me, from a purely practical perspective, to make inadequate allowance for variations in the plaintiff’s condition from time to time. I consider this to be a circumstance that requires a more generous allowance than those suggested by the occupational therapists in their reports. In my view this gives a greater relevance to the medical opinions as to the range and nature of restrictions on the plaintiff’s suggested activities. Additionally, noting that the plaintiff’s girlfriend spent significant daily time massaging his painful right hand, and noting that Dr Wand has endorsed such massage for pain relief, it is significant that the occupational therapy assessments make no significant allowance for such assistance. If massage therapy was provided to the plaintiff professionally, I infer that it would be far more expensive than any allowance made in respect of this head of damage.
455. Thirdly, I do not regard Ms Zeman’s report summarising the plaintiff’s abilities and inabilities as being sufficiently explanatory to be reliable. For example, her rationale for stating that the plaintiff was “fully independent in relation to all aspects of meal preparation” was in my view, oversimplified. Given Dr Fry’s explanation of the need for the plaintiff to avoid fatigue or overuse of his injured hand, I found her explanation of the plaintiff coping because “he would pace task performance” to ignore the significance of the underlying problem as an impairment creating an injury based need for assistance. The notion of pacing his hand use to avoid overuse pays no regard to the issue of cumulative use amounting to overuse. I consider that it would be wrong not to compensate the plaintiff for that need on account of Ms Zeman’s reasoning.
456. Fourthly, it seems that insufficient allowance has been made by the occupational therapists for home maintenance tasks in the case of a man who is unable to make significant, heavy or repeated use of his right dominant hand, particularly where home, lawn and garden maintenance is concerned. I consider that omission to be unreasonable in the circumstances of a man in his mid-thirties, as it cannot be reasonably assumed that the plaintiff will always live in a flat or an apartment, and inadequate consideration has been given to the possibility of a greater level of need for assistance in this area of activity.
457. Having reviewed the evidence I reject the submission made by the defendants that there should be no award of any damages for future domestic assistance. That submission is against the evidence and against the weight of the evidence, including the evidence tendered and relied upon by the defendants.
458. I accept the evidence of the plaintiff as to his stated inabilities to perform a wide range of manually dextrous tasks with his injured right hand and forearm. I accept the medical and allied evidence to the effect that it indicates there should be provision made for a range of allowances for domestic assistance. I accept the opinions of all experts who have provided reasons for the provision of such services. On the question of the reasonable estimation of the compensated time that should be allowed for such services, I accept the opinion of Dr Bodel as to his formulation of 6 hours per week. I consider that an allowance of such hours should be made for the remainder of the plaintiff’s life span.
459. When these matters are taken into account I consider that it would be inappropriate to accept the plaintiff’s submission for the allowance of only 2 hours per week for domestic assistance because I consider that to do so would be to ignore the weight of the evidence in particular, the medical evidence. In my view, an allowance of 2 hours per week would result in the plaintiff being unjustly undercompensated for this identified injury created need for such services: Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245, following Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491, per Windeyer J at [11] ; p 505; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 at [2] ; p 329.
460. I prefer Dr Bodel’s medically based assessment to the occupational therapy based assessments. I am also fortified in my preference for Dr Bodel’s view as Dr Fry took no issue with Dr Bodel’s assessment in his own report, although he did not himself seek to formulate the provision of recommended hours. In my view, having considered the matters outlined by Dr Bodel and Dr Fry concerning the plaintiff’s manual activity restrictions, I consider Dr Bodel’s estimate to be reasonable. I consider that the nature of the plaintiff’s deficits indicated that the hours reasonably required be assessed are in the upper range of Mr Bodel’s assessment, namely, 6 hours per week.
461. Although I accept in part Ms Davidson’s formulation of the need for assistance, I also consider there are additional matters that should also be considered as being compensable and requiring an allowance of greater than 4 hours per week, namely massaging of his pain affected hand and home, lawn and garden maintenance. I also consider her formulation of hours to be an underestimate.
462. Whilst it may be said that at present the plaintiff lives in a rented flat and therefore he has no need for assistance with home, lawn and garden maintenance, I consider it would be wrong to conclude that there should be no provision in the award of damages of an allowance for these services to some degree. In considering what is likely to occur in the plaintiff’s future life, I have to make some allowance for what I consider to be the strong likelihood or probability that once compensated, the plaintiff will move into a house or town house rather than another flat, which will give rise to a concomitant need to attend to matters of home, lawn and garden maintenance, on a regular basis.
463. Having given the evidence and these additional matters consideration, I have concluded that it is reasonable that the plaintiff be compensated for the matters identified by the experts but as estimated by Dr Bodel at an average of 6 hours per week of domestic assistance.
464. I accept as reasonable the submission that such services should be valued at the rate of $35 per hour. The value of 6 hours per week for such services is therefore the equivalent of $210 per week. The projection of $210 per week at 5 per cent over 53 years (x 988.9) yields the amount of $207,669. For two reasons I do not consider it appropriate to discount this sum. First, the actuarial tables used for projection already incorporate a discount for early mortality. Secondly, in this case there is evidence that indicates that the plaintiff uses his right hand excessively for its injured condition. This could be deleterious to his interests. I consider this to be a factor that justifies not making a discount for a possible lessening in the level of the injury based need in the plaintiff’s particular circumstances : Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at [19]; p 497, following Brezatz v Przibilla [1962] HCA 54; (1962) CLR 541. I therefore assess the plaintiff’s entitlement to damages for future domestic assistance in the sum of $207,669.
Future out-of-pocket expenses
465. The parties have made disparate submissions concerning the plaintiff’s entitlement to damages for future out-of-pocket expenses.
466. On behalf of the defendants, Mr Chen initially submitted that the “parameters of this claim are not entirely clear”. After reviewing the plaintiff’s submissions concerning future out-of-pocket expenses, in which an amount of $137,680 was claimed, Mr Chen submitted that there should be a global allowance of a sum of $10,000 to allow for future medical treatment.
467. I consider the defendants’ submitted approach to this head of damage to be flawed because the allowance suggested by the defendants has no rational basis in the evidence and the submission did not engage with the specific evidence in favour of making such an allowance, which in my view, for the reasons that follow, calls for a significantly greater sum for future treatment than that allowed for by the defendants. I therefore reject the submission made by the defendants concerning the plaintiff’s claim for future out-of-pocket expenses.
468. In the paragraphs that follow I analyse the submissions made on behalf of the plaintiff in respect of his claim for future out-of-pocket expenses.
Current medication
469. The evidence discloses that the plaintiff has had consistent although varied medication needs since his injury. There is no suggestion in the evidence that this need will abate. I infer from the chronic and persistent nature of the plaintiff’s pain, which increases with activity, that the need to manage this with medication will continue. That view is supported by the opinion of Dr Wand, who encouraged the plaintiff to continue with medication. That recommendation was not contradicted by any other expert and I consider it to be reasonable in the circumstances whilst there is evidence that the plaintiff should be weaned off opiate medication. There is no evidence this is likely to occur. The plaintiff makes a claim for the types of medication, which he currently takes, namely, Omeprazol or Nexium, Panadeine Forte and Oxycontin. The evidence for these claims is in Exhibit “N”.
Omeprazol
470. The plaintiff claims the cost of Omeprazol tablets at the rate of 2 tablets per day, there being 30 tablets per packet, with a packet replacement cost of $32.90. This is the equivalent of $15.35 per week.
Panadeine Forte
471. The plaintiff claims the cost of Panadeine Forte at the rate of 6 – 8 tablets per day on four days per week, there being 20 tablets per packet, with a packet replacement cost of $15.25. At the lesser rate of intake of 6 tablets per day, this is the equivalent of $18.30 per week.
Oxycontin
472. The plaintiff claims the cost of Oxycontin at the rate of 4 tablets per day on four days per week, there being 20 tablets per packet, with a packet replacement cost of $32.90. This is the equivalent of $46.06 per week. It is significant that the plaintiff’s current general practitioner, who has the responsibility for supervising his opioid medications, has stated at page 2 of his report dated 22 April 2009, that although it would be preferable the plaintiff take non-opioid analgesia, the persisting nature of his pain does not in my view enable a submission that he should not be awarded the cost of that medication. I take this view because I accept that the plaintiff’s pain is chronic and persistent and there is no evidence that it is likely to abate or that he is likely to be able to cope without supervised opioid medication. Dr Bodel considered that this medication needed to be monitored by the local doctor on a monthly basis.
Calculated cost of current medications
473. I consider that the cost of all of these medications should be allowed at the costs I have analysed. In the case of persisting chronic pain there is no proper basis for not making that allowance. It would be unreasonable to deny the plaintiff the cost of these medications in the light of the evidence and in he absence of evidence suggesting this medication is not required. The combined weekly cost of Omeprazol, Panadeine Forte and Oxycontin amounts to $79.71 per week. The projection of $79.71 per week on the 5 per cent tables over 54 years (x 988.9) yields the amount of $78,825.21.
General practitioner consultations
474. The plaintiff claims the cost of consultations with his general practitioner. He currently sees his general practitioner every three weeks. He claims that an appropriate allowance for this would be to allow for a visit 5 times per annum at a cost of $62 per visit for a Level 2 consultation : Exhibit “L”.
475. The basis for 5 consultations per annum is not apparent in the evidence. On the contrary, Dr Bodel has suggested the plaintiff have monthly consultations with his local doctor. Having due regard to the pattern of consultations to date and to the opinion of Dr Bodel, I consider this cost of 12 such consultations per annum to be justified and reasonable having regard to the evidence concerning the need for the plaintiff to be supervised by a general practitioner on a monthly basis with regard to his intake of opiate medication and for the plaintiff’s possible need to consider referral of the plaintiff to a specialist from time to time, within the fields of management of psychology or psychiatry or whatever discipline the plaintiff’s doctor thinks is, from time to time, appropriate.
476. The cost of 12 general practitioner visits per annum at a cost of $62 per visit is the equivalent of $14.30 per week. The projection of $14.30 per week on the 5 per cent tables over 54 years (x 988.9) yields the amount of $14,141.27.
Specialist consultations
477. The plaintiff claims the cost of two visits per annum to a specialist at a cost of $152 per visit: Exhibit “L” – AMA Item AC620. I consider that this cost is justified and reasonable to ensure that he is compensated for the cost of consultations with a pain management specialist or such other specialist as his general practitioner may consider to be appropriate at the time. In my view, where the plaintiff suffers from chronic and persistent pain which requires opiate medication, it is necessary to make reasonable provision for the cost of such specialist consultations.
478. The cost of two specialist consultations per annum at $152 per consultation is the equivalent of $5.85 per week. The projection of $5.85 per week on the 5 per cent tables over 54 years (x 988.9) yields the amount of $5785.06.
Psychiatrist or psychologist treatment
479. The plaintiff makes a claim for consultations with a psychiatrist or a psychologist as suggested by Dr Clark in his report dated 14 April 2009. The suggested course of treatment was consultations every 2 – 3 weeks for between nine months and up to two years at $400 per consultation. The plaintiff submitted the consultations every 2 – 3 weeks over 1.5 years would be an appropriate average. I accept that submission as reasonable. This is the equivalent of $12,480. Given the diagnosis of chronic depression and dysthymic disorder with ongoing features of post-traumatic stress disorder, and the need for psychotropic medication, I consider that the cost of consulting a psychiatrist as recommended by Dr Clark is the preferable option compared with the recommendations of Mr Gilfillan and Ms Myburgh for a psychological counselling program of the order of $3720. I therefore allow a sum of $12,480.
Course of psychotropic medications
480. The plaintiff claims the cost of psychotropic medications as recommended by Dr Clark at an estimated cost of $200 per month over 18 months. This is the equivalent of $3600.
Pain management programme
481. The plaintiff claims the cost of a pain management program as recommended by Mr Gilfillan and Ms Myburgh, at an estimated cost of $7500. Given that the plaintiff suffers from chronic and persistent neuropathic pain for which there appears to be no cure, I consider it to be reasonable that he undergo this programme to try and learn strategies for coping better with his chronic pain. I therefore allow this sum. As the results of such a programme are uncertain, I do not consider an allowance of this amount to justify reducing the allowance made for future medication costs.
Gymnasium programme and physiotherapy
482. The plaintiff makes a claim for 10 years of physiotherapy and a gymnasium program to assist him to reach his ultimate point of maximum medical improvement. Dr Fry has indicated that although the plaintiff has reached his point of maximum medical improvement for diagnostic purposes, there is some remaining scope for limited incremental improvement over the ensuing 10 years. Given the plaintiff’s deficits, I consider that an allowance for a regime of physiotherapy and gymnasium exercises over a period of 10 years to assist to maximise this potential level for improvement would be a reasonable form of rehabilitative expenditure, particularly where the cost claimed is in effect limited to the cost of gymnasium membership and does not include the separate and significant cost of physiotherapy which has been identified as being between $55 and $65 per session. An annual cost of $700 is the equivalent of $13.46 per week. The projection of $13.46 per week on the 5 per cent tables over 10 years (x 412.9 rather than x 555 as was submitted) yields an amount of $5557.63.
Total cost of future out-of-pocket expenses
483. In summary, I allow the following items for future out-of-pocket expenses:
(a) Current medication (b) General practitioner consultations (c) Specialist consultations (d) Psychiatric / psychologist consultations (e) Psychotropic medication (f) Pain management programme (g) Gymnasium / physiotherapy Sub-total
484. The combined total cost of the above items is $119,988. I therefore assess the plaintiff’s claim for future out-of-pocket expenses in the sum of $127,888.
Past out-of-pocket expenses
485. Exhibit “N” embodies the agreement between the parties concerning the extent of the plaintiff’s past medical and pharmaceutical expenses in the sum of $5,019.50. I assess the plaintiff’s out-of-pocket expenses in the rounded amount of $5,019.
Summary of damages assessment
486. My assessment of the plaintiff’s damages is summarised as follows:
(a) Non economic loss (b) Past loss of earning capacity (c) Future loss of earning capacity (d) Past loss of superannuation (e) Future loss of superannuation (f) Past domestic care services (g) Future domestic care services (h) Future out-of-pocket expenses (i) Past out-of-pocket expenses Total
G. DISPOSITION & ORDERS
Disposition
487. I have found that the plaintiff’s injuries were caused by the negligence of each of the two defendants. I have found that there was no contributory negligence on the part of the plaintiff. I have assessed the plaintiff’s entitlement to compensatory damages in the sum of $843,136. The first defendant has succeeded in its cross claim against the second defendant. I consider that the defendants should bear the responsibility for the plaintiff’s damages in the proportion 25 per cent by the first defendant RTA and 75 per cent by the second defendant managing agent.
488. I reserve the question of whether any further order needs to be made in respect of an expanded jurisdiction beyond $750,000 pursuant to s 51(2) and s 51(4) of the District Court Act 1973 in the event that there is correspondence and particulars justifying the making of such an order : Richards v Cornford [2010] NSWCA 99 per Basten JA at [12]. If the parties wish to pursue that course, they have liberty to apply on notice for further orders.
Orders
489. I make the following orders:
(a) Verdict and judgment for the plaintiff against the defendants in the sum of $843,136;
(b) The defendants are to pay the costs of the plaintiff on the ordinary basis unless otherwise ordered;
(c) I find the responsibilities of the defendants for the plaintiff’s damages is in the proportion 25 per cent on the part of the first defendant RTA and 75 per cent on the part of the second defendant managing agent;
(d) Verdict and judgment for the cross claimant against the cross defendant on the cross claim in the sum of $632,352;
(e) The cross defendant is to pay 75 per cent of the cross claimant’s costs on the cross claim on the ordinary basis unless otherwise ordered;
(g) Liberty to apply on 7 days notice if further orders are required.(f) The exhibits may be returned;
0
26
5