Husain Jammal v and S Tadros - [2010] NSWDC 190

CITATION: Husain Jammal v V & S Tadros [2010] NSWDC 190

HEARING DATE(S): 02/03/2009 - 05/03/2009
23/03/2009
10/08/2009 - 11/08/2009
11/11/2009

JUDGMENT DATE:
30 July 2010

JURISDICTION: Civil

JUDGMENT OF: Nicholson SC DCJ

DECISION: 1.Verdict and judgment for the defendant.
2. Verdict and judgment for the cross-defendant.
3. The plaintiff will pay the defendant’s costs.
4. The cross-claimant will pay the cross-defendant’s costs
5. Leave is given for the parties to apply to my Associate within 21 days for a hearing date to vary any cost order I have made.

CATCHWORDS: Civil Law - Negligence -slip on wet step - Cross Claim against repairer - newly reparied steps and pathway - street to doctor's consulting rooms - exposed to weather - raining - 3 stairs to pathway -slip on middle step - state of repair and maintenance - causation - failure to establish mud on stair as cause - failure to establish defect of construction as cause - expert report - flaws in testing step surface - validity of expert opinion - query whether constructions pre-Building Code caught by Code - failure to establish alleged breaches caused slip -liability of P not established.

LEGISLATION CITED: Evidence Act 1995
Civil Liability Act 2002

PARTIES: Husain Ali Jammal (Plaintiff)
V & S Tadros pty Limited (Victor Tadros) (Defendant)
V & S Tadros pty Limited (Victor Tadros) (Cross Claimant)
Ali Jadid (Cross Defendant)

FILE NUMBER(S): 2007/00294564

COUNSEL:
Plaintiff:R Hanrahan
Defendant/Cross Plaintiff: D. Cutler
Cross Defendant:A Hourigan

JUDGMENT

The Plaintiff’s Case

1. The Plaintiff, the eighth of 12 children, was born in The Lebanon in 1944. He is currently about 65 years old. Since the age of eight he has been singing and dancing. In more recent times he has added comedy to his routines. He married at the age of 22. With his wife Sarah, at the age of 43 he migrated to Australia in November 1987. Since their arrival in Australia, their lives have been plagued with misfortune after misfortune as they experience the negligence of others.

2. In June 1989 his wife fell down stairs at a railway station. Subsequently his wife was involved in a motor vehicle accident. Since 1989, as a consequence of these events, he has provided help for her. Even so he was able to continue earning money at night dancing, singing and entertaining as a comedian. In 1999 he was granted a carer’s benefit by the Department of Social Security for a period.

3. In 1993, after eating two bowls of Cornflakes to assist him in dieting, he suffered an episode. The consequence was he was unable to walk, vomited, experienced diarrhoea, dizziness, his face changed colour. On returning from the local shops after eating the cornflakes he fell down and had to be taken by ambulance to Prince Alfred Hospital. He was off work for two or three weeks. It would appear the episode was the focus of litigation that resulted in his being paid a small sum of money because he had lost two or three weeks work.

4. On 2nd January 2000 he slipped on a loose piece of concrete and fell while lifting a table at home. He hurt his right shoulder, neck, back and hand. He had an x-ray taken of his little finger. He is still experiencing pain from his back, shoulder and hand. His neck movement is restricted so that he must turn his body when speaking to those within his peripheral vision. This incident was also the subject of litigation, resulting in a sum of money being paid because he stopped working for a month or so.

5. Nonetheless during the tax year 2002-2003 the Plaintiff was able to earn $49,000 as a musician.

6. On Oct 16th 2004, the Plaintiff was offered employment at the Serenade Restaurant & Café, Parramatta as a MC Singer entertainer and a Dancer Comedian for a period of 1 year, commencing on 22nd October 2004. The terms of the contract specified payment of $950 per week gross. Attendance was required on Friday, Saturday and Sunday nights from 10pm to 1am as agreed.

7. Two days after signing the Serenade Restaurant contract he attended Dr Tadros’s (the defendant’s) surgery for purposes of asking about a certificate relating to his job (T. 02/03/09 p. 18/7) or his wife’s back problem (history given to Dr Harvey Sutton) or for the purpose of consulting the defendant (Statement of Claim). He was told to return in half an hour. He left the surgery onto a veranda. From the veranda there were three steps leading to a pathway, which in turn led through a suburban front yard to a small wrought iron gate giving access to the footpath outside. There was a last step down to the final metre and a half leading to the front fence.

8. It was raining. He looked at the steps leading from the veranda; saw nothing dangerous. He was walking normally, and taking care. As he placed his foot on the second step he skidded and fell causing injury. He lost consciousness, the defendant left his surgery and attended upon him in situ. That was the last time Dr Tadros treated the plaintiff. Thereafter he engaged the services of Dr Sarkis Douaihy who attended his home on 26th October 2004.

9. It is useful to have regard to how the evidence came out in the hearing; I reproduce the relevant portions of transcript (T 02/03/09 pp 17/21- 18/22).

Q. Can you say in your own words what happened as you were leaving the surgery.
A. WITNESS: Yes. When I go outside from the doctor's room, I go outside. I'm walking normal, nothing else than normal.

Q. What sort of shoes were you wearing?
A. INTERPRETER: Normal shoes.
A. WITNESS: Yeah, normal shoes.

Q. What happened?
A. WITNESS: I slip.
A. INTERPRETER: It was slippery.
A. WITNESS: My legs coming behind my back. Two broke - two broke in my legs.

Q. Can you remember what you noticed just before you slipped?
A. WITNESS: No. I don't remember.

Q. Do you remember how you came to slip?
A. INTERPRETER: I can't remember. I went unconscious at that moment, and after, when the doctor came out to see me. It was raining over me.
…..

HANRAHAN
Q. Can you say how it was that you came to slip?
A. INTERPRETER: Walking normal.
A. WITNESS: And after, I slip.

Q. Did you look at the steps that you were walking down?
A. WITNESS: For sure I look at the step.

Q. Were you careful before walking?
A. WITNESS: For sure I'm careful.

10. Counsel revisited this topic, he asked: Do you want to say anything to the court… about how you came to fall? The Plaintiff answered: How I fell? I fell normal; how people just fall; I fell. I put my legs (sic) out; fall down….” (T. 02/03/09 p.21/27). Counsel persisted: Q: “Why is it that you say that you fell on those particular steps? A. (Through interpreter) When I was going down the second stair, I put my leg and I slipped.” When giving that answer he demonstrated with his hands a kind of skidding motion. (T. pp 21/50 – 22/1-4)

11. Defence counsel, in his submissions has listed other accounts of the fall given by the plaintiff to others, primarily as part of the history taken by those others:

Statement of Claim says …”slipped on the tiles laid at the entrance way to the premises…’

-expert Mr Grieve 1/2/08 (Exh The Plaintiff’s exhibits are identified by a single letter of the alphabet sometimes followed by a number (e.g. A, B, C, D – 1) etc). The Defendant’s exhibits are identified by a numeral sometimes followed by a letter of the alphabet (e.g. 1, 2, 3, 4 – A, etc). The Cross Defendant’s exhibits are identified by the letters CD followed by a number (e.g. CD 1; CD 2, CD 3 etc). D-25) “As he descended the stairs he slipped on the middle step…”

particulars 16/1/08 (Exh 9 ) “..slipped on the steps at the entrance to the premises.”

Dr Tadros notes 18/10/04 (Exh D-1) “slipped on the surgery steps (rain wet steps)”

Dr Douaihy notes 26/10/04 (Exh D-15) “…slipped on some mud and wet surface of the steps.”

12. As a consequence of the fall, the Plaintiff sustained a comminuted fracture through the distal tibial shaft. Simultaneously an oblique fracture through the distal fibular shaft also occurred. He says that as a result of the fall he hurt his legs, back, shoulder and neck. Subsequent to the initial injury to the left leg, he began to feel more pain in his other leg. There was mental sequale, which he described as “pain … in my mind; feeling bad emotionally, and feeling nervous (query “anxious”) (T. 2/03/09 p. 24). He elaborated on this aspect: “…when I wake, I wake up I be nerve (sic) – I want to fight, I want to broke (sic) I want to do something bad”. (T. 02/03/09 p. 25/21-22). When asked to narrow to the most important parts he selected injury to his left legs (sic), back and right shoulder down to the wrist. (T. 02/03/09 p. 24/1 – 20).

13. The Plaintiff’s evidence was there was no handrail near the steps, no sign, no fence (sic) or something, (T. 02/03/09 p. 22/9-11)

Ms Badran’s (the plaintiff’s wife’s) Evidence

14. The Plaintiff called his wife, Sarah Badran in his case. She is also known as Sonya. She married the Plaintiff in 1966. In her capacity as his wife she has observed him since the fall at the Defendant’s premises, which she says changed him a lot. Previously he was working as a singer, dancer. She worked with him in dancing. Since the fall she has not worked with him. He now sits in front of the TV. When he sees someone singing or performing on TV he starts to cry.

15. Since the fall he is a different person. Before the accident she could speak with him without problem. After the fall he became nervous (meaning irritable or short tempered). He has put on weight. She has been assisting him with personal care, by helping him clothe himself, give him medications. She regards herself as his servant, and is next to him all the time. She bathes and shaves him. She brings him into the shower, puts him on a chair then sponges him with soap – then washes this by pouring water from a container off by hand. She does not have a hand held shower nozzle, and it would make a helpful difference if she had one. There are no handrails, if there were, it would assist.

16. She helps him get out of bed. First she helps get his head up. Then she turns to his legs to dangle from the bed. Then she stands in front of and helps him stand a little bit at a time by lifting him. She said she would be assisted if the Plaintiff had a bed with a remote control which lifted him into a seating position. She also said he would be assisted if he had a recliner chair.

17. She takes him to the toilet, then leaves him. She stays outside the door, which is left open. When he finishes she comes back to help him clean up and put his clothes on. Her evidence was she spends two hours daily helping him and then he sits on a chair.

18. Australia had taught the Plaintiff to help with housework, which he did prior to October 2004, because in their culture men don’t. Before the accident he cooked, did the washing, vacuumed the carpet. The two worked together as one. In March 2008 a young man, Mustapha, assisted with the plaintiff’s personal care and continued to come for three months. Since the fall he has not assisted with the cooking.

19. In Cross-examination to Mr Cutler, she agreed she had recovered very well from the injury of 1989 when she fell down stairs. There is now nothing troubling her. This recovery had been completed before October 2004; she thought about three years before but added, “Long before, but I can’t remember how long. My husband knows all this.” She denied telling Dr Sekel on 21 February 2008, “I am disabled because of injuries of my back, legs and most other areas of my body.” The effect of her evidence was Dr Sekel did not ask her any questions, but directed himself exclusively to the husband.

20. She did not know whether her husband was receiving a carer’s payment. They signed papers and went to the post office to get the money. Her evidence was they didn’t apply, she cannot read or write, or do these things. She thought it may have been Dr Tadros who applied for it. She didn’t know why and they didn’t ask. She went to the post office to collect the carers allowance and other payments made by the government because she had to pay rent, electricity, telephone bills, buy food, and borrow money from friends. She continued to collect money sent by the government for her husband after his injury in October 2004. They had not received letters from the government asking whether her husband was still her carer and whether she was still disabled.

21. Prior to October 2004 the plaintiff did everything for her, vacuuming, her face (make-up), trimmed her nails, combed and styled her hair, everything at the house because she was incapable of doing these things as a result of injuries arising from a motor vehicle accident.

22. He did these things before he fell down. But before he fell down she had become well, the pain had gone, she had taken tablets for it and the pain had gone. Before the fall they were both doing things about the house together. After the fall it was her duty to look after him, as he had done his duties towards her.

23. Her reason for ceasing dancing was not injury related. She wanted to stay home and help her husband with everything.

Pleadings

24. Exh F seems to establish that within 3 weeks of the slip, the plaintiff contacted J.M.Thompson, solicitor, about a personal injury claim arising from his fall. It does not appear that solicitor filed any documents.

25. On 17 October 2007 the plaintiff filed proceedings against the defendant alleging negligence. It is his claim that as he was leaving the defendant’s premises on 18 October 2004 he slipped on the tiles laid at the entrance way to the premises which were wet and slippery from the rain, whereupon he slipped and fell, thereby sustaining injury, loss and damage. His claim for injury, loss and damage was expressed as both a past and continuing.

26. The particulars of negligence that have been pressed in the hearing appear to be, failure to maintain the premises in a safe condition, failure to warn of the slippery floor surface in event of rain; failure to provide a safe means of access and egress from the premises; failure to alleviate a slipping hazard; failure to guard against a high gloss tiles becoming wet and slippery in rain; failure to maintain non-slip surfaces on the steps, failure to provide sufficient or additional non-slip surfaces upon the tiles, and failure to provide handrails

27. A defence was filed on 31 January 2008. The defendant put in issue that it was the occupier and had care control and management of the relevant premises; that the plaintiff slipped on wet, slippery tiles laid at the entrance way to the premises and thereby sustained loss and damage. He denied any negligence asserted, and notably those asserted in the pleading. The defendant denied past or continuing injury, loss or damage. The Defendant averred that if injury, loss or damage was suffered, it was caused or contributed by the plaintiff’s own negligence. He particularised contributory negligence as failing to take any, or any proper care for his safety, and failing to watch where he was walking.

28. I deal with the Cross-Pleadings later.

Plaintiff’s medical evidence of pre-existing injury
Application for Disability Support – Dr Tadros’s Report

29. On 12th February 2002, the Defendant, then the Plaintiff’s treating doctor completed a Treating Doctor’s Report for Centrelink, Exh G. That report appears to have been sighted and returned by CentreLink Marrickville on 2nd April 2002. On that occasion his diagnosis was “muscular ligamentous spraining of the lumbosacral spine with L3/4 and L4/5 disc injuries”. Under the heading clinical features he wrote: “accident on 2/1/2000. On-going back pain since then. Date of onset 2/1/2000.” Treatment was listed as “physiotherapy, analgesics, local creams.” Doctor’s prognosis was the condition was Long Term. Likely to persist for at least 2 years. He described the condition as deteriorating and constant. On this earlier occasion there was also a diagnosis of a second condition as “Muscular ligamentous spraining of the cervical spine with evidence of nerve root irritation.” The clinical features were written: “again as a result of the accident of 2/1/2000 ongoing (indecipherable) pain and stiffening with radiation to the right upper limb. Date of onset 2/1/2000.” The doctor assessed the condition as long term; likely to persist for at least 2 years. The condition was assessed as deteriorating and constant.

30. A third condition relating to a contusion of the right little finger was diagnosed. It was said to be long term, likely to persist for at least two years.

31. A fourth condition was diagnosed, namely post traumatic stress disorder. Its clinical features were set out “As a result of pain and loss of capacity to work, Mr Jammal has been getting progressively more anxious and depressed. Treatment, past, present, and planned was described as Antidepressants, counselling.” The condition was described as being long term – likely to persist for at least two years. It was said to be stable and constant. The defendant assessed the plaintiff as being unable to return to work more than 20 hours per week, or indeed any work at all, for a period greater than two years. Likewise he would be unable to engaged in face-to-face study for a period greater than 2 years.

32. When assessing the plaintiff’s work ability at this time under headings set out below, the defendant ticked the following boxes:

Likely to be absent or several hours late as a result of impairment

: four or more days per month (the maximum option available).

Persistence at work tasks without unscheduled breaks

: unable to work full days because of endurance problems (the maximum option available).

Capacity of person to understand and follow work instructions

– intellectual functioning only: impairment rarely affects their understanding (second option of disability available).

Communication capacity in the workplace

: Can communicate, but with diminished speed (the second option of disability available).

Capacity to travel to, from and move about the workplace

: Mobility would be constrained in some situations (Third option of disability available).

Capacity to manipulate objects for work

: Substantially diminished dexterity (the maximum option of disability available).

Impact of disability on ability to interact with others and behave appropriately at work

: inappropriate behaviour would disrupt work for at least 15 minutes per day (second option of disability available).

Capacity to undertake a variety of tasks

: May be distressed or have difficulty alternating between tasks (third option of disability available).

Capacity to lift, carry and move objects

: Unable to lift, carry and move objects (the maximum option of disability available).

33. The defendant indicated the plaintiff had been his patient and attending his practice since 22nd September 1988.

Other pre- 2004 Reports

34. In support of the application other medical reports accompanied the application. One was from Dr Damien Ryan of the Sydney Hand Surgery Associates. The plaintiff was referred to doctor in November 2000. Dr Ryan diagnosed “fairly significant hypersensitivity of the right hand with numbness affecting all his fingers; some particular stiffness of his little finger; pain more diffuse than only in the little finger. Dr Ryan’s opinion was that the pain appears to relate to cervical radiculopathy rather than any local problem around the hand. Nerve conduction studies did not reveal any abnormality of the nerves around wrist and forearm. His neck is certainly very stiff and attempts to move the neck are quite painful.

35. Contained in Exh G is a report dated 24 May 2001 of Dr Medhat Guirgis, a consultant orthopaedic surgeon. The Plaintiff had been referred to him by the defendant. Dr Guirgis first saw him on 9th February 2000. Dr Guirgis took a history that included an account of the plaintiff being taken after falling backwards at the entrance of the veranda to Royal Prince Alfred Hospital, where he remained as an in-patient for 36 hours. He claimed instantaneous extensive swelling to the right lower limb, which was extensively swollen. His trousers had to be cut by ambulance officers to relieve the pressure on the leg because he could not move his toes. His right arm was bruised, his neck, right shoulder, right little finger and lower back were also injured. Dr Guirgis was told the plaintiff continued to complain of persistent pain and stiffness in the neck – a pain which shot to and involved both shoulder blades. There was painful stiffness and heaviness in the right shoulder. There were attacks of radiation down the right arm to the hand. There was painful stiffness in the lower back and attack of radiation of the pain from that site down the right leg to the foot. Similar radiation was present on the left side but to a lesser extent. There was an initial persistence of pain in the right thigh which was swollen and bruised for a few weeks after the accident. During that period he was unable to walk without the aid of a walking stick. The right little finger was injured at the proximal interphalangeal joint which became painful. There was tingling, pins and needles and a numb feeling affecting the right hand and fingers with weakness of gripping power of the hand. He was diagnosed with right carpal tunnel syndrome.

36. Dr Guirgis conducted a clinical examination. He recorded his findings:

Cervical Spine: Spasm of the para-spinal collar muscles demonstrated on movements of the cervical spine beyond the half way range in all directions. Movement of cervical spine restricted 35% of the range. Tenderness elicited over mid-cervical spine and relevant spaces. Tenderness also over supraspinous fossae. No motor or reflex neurological deficits.

37. Lumbar Spine: Normal lumbar lordosis was lost. No sciatic listing. Spasm of the para-spinal muscles on stance. Movements of the lumber spine restricted 50%. Straight leg raising positive on right side at 50 and on left at 65. Tenderness elicited over right sacroiliac joint and lower 3 lumbar spines and relevant spaces. No motor or reflex neurological deficits.

38. Right Shoulder: Movement of gleno-humeral component of the shoulder join were lacking their last 10 degrees of abduction and external rotation. Evidence of altered rhythm between gleno-humeral and scapula-thoracic movements. Evidence or reduced abduction power against resistance. Tenderness over supraspinatus insertion in the top of the greater tuberosity of the humerus. Tenderness extended to involve the anterior half of the rotator cuff of the shoulder.

39. PIPJ Right Little Finger: Pain, tenderness and soft tissue swelling demonstrated over the dorsal capsular ligament.

40. Dr Guirgis’s opinion was that the 2000 fall at home resulted in the following injuries:

Post-traumatic mechanical derangement of the cervical area of the spine; caused by chronic musculo-ligamentous sprain/strain with intervertebral disc involvement. It triggered and aggravated the effects of pre-existing osteospondylosis. Post-traumatic symptoms in the right shoulder joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures. It also triggered the symptoms of &/or aggravated the effects of underlying degenerative changes. MRI evidence of a partial tear of the supraspinatus tendon was noted. That tear was said to have triggered the onset of post-traumatic tendonitis/subacromial bursitis in the right shoulder. Post-traumatic mechanical derangement of the lumber area of the spine, caused by musculo-ligamentous sprain/strain with intervertebral disc involvement. This triggered & aggravated the effects of pre-existing osteospondylosis. Post-traumatic symptoms and signs of irritability of the median nerve in the carpal tunnel.

41. Doctor Guirgis listed areas of permanent impairment experienced by the plaintiff as against a most extreme case of the relevant injury. The figures the doctor came up with were:

25% permanent impairment of the neck. (Add 5% on account of underlying asymptomatic biological changes for age).

25% permanent impairment of the back. (Add 5% on account of the underlying asymptomatic biological changes of age).

20% permanent loss of efficient use of right arm at or above elbow level. (Add 5% on account of underlying asymptomatic biological changes of age).

10% permanent loss of efficient use of right leg at or above the knee level.

10% permanent loss of efficient use of left leg at or above the knee level.

42. Dr Monir B Younan, Consultant Psychiatrist, was the last of the specialists whose report supported the plaintiff’s application for Disability Support from CentreLink. His diagnosis was formulated against a history of falling about three months ago while dragging a table from the balcony into a room. Dr Younan noted at interview the plaintiff occasionally appeared detached, but mostly depressed, and at a time he cried. Doctor was told plaintiff frequently cried, mostly felt depressed, he complained of poor concentration, diminished physical energy, outbursts of anger, pervasive feeling of fear and occasion of attacks of anxiety during which he worries about his heart. There was trouble falling and staying asleep. There is bed wetting and lost of interest in sex and a totally loss of erection capacity.

43. Dr Younan’s diagnosis was moderate to severe depressive anxiety state with possible dissociative overlay. Doctor was uncertain as to whether the plaintiff’s incontinence was organically caused.

Treatment of the 2004 Injury occasioned at the Defendant’s Premises

44. The Plaintiff had been taken by ambulance from the injury site to Prince Alfred Hospital, where he was operated upon the following day. The discharge letter notes under the heading Operations/Procedures/Hospital Treatment on “19/10/04 – open reduction/internal fixation [left] ankle; insertion of 2 plates & screw.”

45. The Plaintiff left hospital within three days because, he was alone, his wife was alone and the hospital would not let her stay with him throughout the night. The Prince Alfred Hospital discharge letter (Exh D 1) confirms “Patient discharged himself today against medical advice.” Arrangements were made for him to attend the Outpatients’ Clinic a week after discharge. He was advised to take Panadeine and supplied with sufficient for 5 days. (Exh D p.1)

46. The Plaintiff did not attend follow-up at the Outpatients’ Clinic. Rather he had Dr Sarkis Douaihy attend upon his home (T. 02/03/05 p. 22/47). Doctor’s first visit appears to have been made on 26th October 2004. In this initial visit the Plaintiff complained of immediate pain in lower left leg with a cracking noise, back and right shoulder pain.

47. On the 28th October, Dr Douaihy notes complaints of dizzy spells, on-going headaches, a blood pressure reading of 150/100. There was ongoing pain in the left ankle and the plaster was causing discomfort. Doctor diagnoses a likely viral illness and gives advice regarding blood-pressure management.

48. [Comment: The original evidence of Dr Douaihy is to be found in Exh D 15. As it appears in the exhibit it has been collated without regard to dates. A copy of Exh D 15 was compiled during the hearing. While not strictly in date order it is arranged in an improved chronological order and has been made available to me. The entries that appear in Exh D 15 have been supplemented by entries from the Doctor for 2006-2008. They have been added to Exh D 15 by consent. I have relied upon this document for details of treatment meted out or oversighted by Dr Douaihy. I have not been supplied with any glossary of terms or abbreviations used by this doctor in his notes. Nor has any typewritten version of them been provided. – I have been left to my own devices in interpreting the handwriting and the notes. While I accept it is my task to make what I can of the evidence and to determine the facts upon the evidence as I find it to be – the risk that what I make of it may not be what the doctor intended is one borne by the party tendering the documents. Finally, I should note that some of the papers in the copy version have been highlighted at various points. I have disregarded the highlights in coming to my findings, and the weight I give to those findings. The above comments apply with equal force to the defence Exh 1 – Dr Tadros’s clinical notes.

49. There is a second comment that I wish to make applying to both Plaintiff in respect of Exh D 15, and the Defence in respect of The Defence Tender Bundle, which includes Dr Tadros’s clinical notes, and the Court file in previous proceedings. In neither party’s case has the Court been pointed to any particular passages. These are vast fields of evidence I am required to tramp through to make what I can of the evidential plant-life I find. To some extent I have had regard to the final submissions in determining what the parties regard as important. A good example of the problem raised is to be found in the Plaintiff’s evidence in earlier proceedings against a different defendant for a different injury. On my reading of his evidence there were occasions where he was extravagant, and unreliable. Yet no tendency or co-incidence notice pursuant to the Evidence Act 1995 was served. So, I have put any finding I may have made to one side in accordance with the provisions of s97 and s98 Evidence Act 1995 and based my determination of the plaintiff’s reliability solely on his sworn evidence before me, and contents of reports made preparatory for these proceedings.]

50. The next recorded visit of Dr Douaihy appears to be the 8th November 2004. There was still on-going pain in the left ankle area, the plaster cast had to be changed for a fibreglass one due to on-going pain and discomfort. Doctor records the Plaintiff as being unable to weight bear. There was tenderness over the lower back; right shoulder movements were painful; there were now complaints of pain in his right lower limb. The Doctor had described him as a well-built anxious looking man. He was prescribed analgesia and anti-inflammatory medication.

51. In what would appear in one of these early visits Doctor records the Plaintiff as describing an “exacerbation of his lower back pain causing him stiffness and limitations of movement as well as his right shoulder pain. The Plaintiff complained to the doctor that his pains and symptoms have been interfering with his sleep, daily living activities, his ability to go to work, that he was anxious about his condition and is virtually house bound; he can’t socialise or get out. The doctor’s diagnosis is: anxious looking, frustrated, painful right shoulder, lower back; left knee, left ankle and right lower limb. He prescribed a continuation of the medication and rest.

52. On 6th December Dr Douaihy visited the patient who was complaining of nausea, vomiting, diarrhoea, and blood pressure 146/90. Those symptoms may well have been viral. He also noted ongoing symptoms of pain and discomfort and that the Plaintiff was feeling depressed.

53. Dr Douaihy referred the Plaintiff to Dr Graham Mahony at Bankstown. On 15 December Comprehensive Medical Imaging did a Lumbar Spinal x-ray. Dr Kaushik, who interpreted the x-ray concluded: “Extensive facet arthritic change and generalised disc bulging at the L3-4 level has caused spinal canal narrowing.” He also noted “small focal central disc protrusions at the L4-5 and L5-S1 levels which abut the thecal sac anteriorly and compress the bilateral proximal L5 and proximal right S1 nerve roots.” (Exh D 3).

54. Dr Douaihy saw the Plaintiff on 23rd December. The Plaintiff was complaining of an exacerbation of his symptoms after an attempt to walk around the house. The Plaintiff said he was in pain and feeling stiffness affecting his back and both lower limbs. Blood pressure 140/80.

Treatment Continues 2005

55. On 13th January 2005, the Plaintiff told the doctor there was ongoing pain and discomfort in the left knee, left ankle, lower back and right shoulder as well as pain in the right lower limb. Doctor also noted coughing, providing sputum associated with dizziness and tiredness. There was also epigastric pain with acid reflux. The Plaintiff was advised by Dr Douaihy to stop smoking. His blood pressure was 140/70.

56. On 28th January 2005 Dr Douaihy’s notes record the plaintiff complaining of ongoing symptoms and limitations causing frustration and depression; still interfering with sleep and daily living. Walking with a frame. Blood pressure 130//70.

57. There appear to have been visits by Dr Douaihy on 1st, 15th and 21st February 2005 where the patient was complaining of on-going symptoms, continued abdominal pain with reflux and high blood pressure. On the 8th March the Plaintiff complained of an escalation of his symptoms and limitations. He complained of depression. Doctor counselled him at length and advised him to start on Avanza and continue with his other medications. The Doctor diagnosed headaches, tiredness, cough and epigastric pain. The blood pressure was 160/90. The doctor noted the Plaintiff would need to start medicating if non-pharmacological means were not working.

58. On 17th February, Dr Grahame Mahony, who had examined the Plaintiff on 11th February, wrote to the treating doctor, opining that the Plaintiff “has developed symptoms referable to a lower lumbar back strain and appears to have sustained fractures involving the left low tibia and fibula. It is consistent that the fall he described has produced such lesions (sic).” Dr Mahony also reported that he had been advised that an ultrasound investigation of the Plaintiff’s left calf taken at his (Dr Mahony’s) request was normal.

59. On 30th March the Plaintiff was complaining of on-going pain in left knee, left ankle, lower back, right thigh, right shoulder, ongoing depression, frustration and lack of self confidence. He was scheduled to have MRI of upper and lower back and upper limbs.

60. The Plaintiff’s evidence is that after the initial hospital treatment he continued to feel “very, very, very bad pain and very bad life” (T. 02/03/09 p. 23/43). The Plaintiff was readmitted to Prince Alfred for further surgery, which occurred on 7th April 2005. The Left Tibial plate and screws were removed and in lieu an IM T2 tibial nail insertion was performed. The Discharge Referral noted under the heading: Major Interventions – Results: “malunion/non-union Left tibial fracture. Rupture of quadriceps tendon noted.”

61. Again, the Plaintiff self-discharged on 11/4/05 against medical advice, and “did not wait for [a] second procedure” that was apparently intended. (Exh D pp 2 and 2a). After this second operation, the Plaintiff felt a little different but still in pain (T. 02/03/05). He felt emotionally “very bad”, which he clarified as nervous (T 02/03/09 p. 24/1 - 6). He began to feel more pain in his back and shoulder than before; also in his hand because he used a walking stick; he also experienced shivering.

62. On 13th April the Plaintiff complained of worsening of pain lately. Doctor noted the weather had been cold lately. Still having interrupted pain and limitation of movements causing difficulties in performing his normal daily living activities. On this occasion Doctor’s medical diagnosis was heartburn, dyspepsia and dry reaching cough plus sputum production. Blood pressure 146/70.

63. On 27th April the Plaintiff complained to Dr Douaihy of ongoing symptoms with few exacerbations mainly after exertion or movement. He was still having interrupted sleep and limitations to daily activities. The Plaintiff was requesting investigation for his right upper limbs. The Doctor diagnosed the medical condition at this time as coughing with sputum. The abdominal pain with reflux was now gone, and the blood pressure was again high 140/80. It would appear a decision was urged to medicate that condition.

64. Dr Douaihy continued to see the plaintiff through the following months of 2005. The situation appears stable throughout those months – continual complaint of ongoing pain, stiffness and limitation of movement interfering with sleep and daily living activities. There was also a consistency in complaining of depression, frustration and lack of self-esteem. Simultaneously with these complaints the Doctor continued to deal with coughing with sputum, abdominal or epigastric pain, reflux symptoms, high blood pressure readings. To these symptoms were, from time to time, added dizzy spells, headaches and weakness. On only one occasion was there a concession by the Plaintiff of obtaining relief from analgesic and anti-inflammatory medications.

65. On 1st June 2005 Dr Mahony again review the plaintiff for Dr Douaihy. On examination of the neck he noted it appear restricted at the extremes – but little remaining movement was carried out because of guarding. On examination, the right shoulder appeared restricted to about 80 of abduction. In the case of the shoulder little rotation was carried out. X-ray of the right elbow showed early degenerate changes, including an olecranon spur. It was Dr Mahony’s opinion that the Plaintiff presented with symptoms referable to a cervical strain with nerve root irritation affecting the right upper limb, a rotator cuff lesion of the right shoulder. He found evidence of a discogenic lesion at the L3/4 level with spinal stenosis at this level. There was spinal stenosis also at the L4/5 level and a disc lesion at the lumbosacral level.

66. On 14th July 2005 the Plaintiff attended upon Michael Neuvonen, a physiotherapist with Inner West Physiotherapy & Sports Injury Centre who indicated he had commenced a treatment program consisting of ROM exercises, stretches, electrotherapy, modalities, gait training, strengthening exercises and a home programme.

67. On 19th July 2005 the Plaintiff was trying to get out of bed, felt pain in the lower limb and lower back that caused him to cry. He told Dr Douaihy that with time it started to improve.

2006 – On going medical issues

68. By June of 2006, Dr Douaihy was becoming concerned with ongoing problems with other conditions the plaintiff was presenting with: obesity, hypertension, abdominal pain, borderline blood sugar levels and diabetes or the potential for diabetes to develop. He was seeking a management plan from his patient that would focus upon achieving an ideal body weight, keeping blood pressure and blood sugar levels within reasonable limits. I should note the Plaintiff’s complaints at this time were much the same – pain and stiffness in lower limbs and lower back, ongoing depression and frustration.

69. During 2006 there appear to have been 10 visits scattered more or less monthly to Dr Douaihy. Doctor continued to focus on the two sources of illness – the plaintiff’s symptoms arising from the fractured tibia and fibula in the lower left leg; and the demise in the general well-being of the Plaintiff as his abdominal/epigastric/reflux, high blood pressure, deteriorating blood sugar levels, pulmonary, smoking and obesity issues continued to plague him. During these visits the Plaintiff’s complaints to Dr Douaihy continued to refer to on going pain in his knee, lower back, right shoulder, left lower limbs, interrupted sleep, limitation of movement and interference with daily living activities. He continued to express frustration, depressive symptoms. In January he complained that his sexual life had been affected lately and was given Viagra.

70. He was prescribed Valium, presumably by Dr Onsy Mattar to soothe his nerves and give him less disturbed sleep. He was referred by Dr Douaihy in October 2005 to Dr Mattar for psychological treatment. He appears to have visited Dr Mattar for the first time on 6th February 2006. Dr Mattar diagnosed anxiety depressive disorder, pain disorder and adjustment disorder. The psychological treatment consisted of cognitive behaviour therapy, counselling, pain-management and relaxation and support therapy. The Plaintiff reported symptoms including pain, poor sleep, depression, stress, no sex life, unable to relax, back pain, fear, poor self-confidence, adjustment disorder. From the notes before me it would appear he attended upon Dr Mattar monthly from April 2006 at least until July 2007. The Plaintiff gave evidence of visits to Dr Mattar in January 2009. His evidence was that after these visits he felt a little be relaxed but not much (T. 02/03/09 p. 39/23-33)

2007 More visits to Doctors

71. The first entry in Dr Douaihy’s notes for 2007 appears to be 08.01.07: “5 days ago presented to Sydney Eye Hospital – left central retinal …” I am unable to decipher the remainder of this part of the note. But doing the best I can with this evidence, I find that the Plaintiff went to the Sydney Eye Hospital on about the 2nd January with some serious eye complaint. I return to the Doctor’s notes. Doctor diagnosed a medical condition of severe headaches, dizzy spells, tiredness, sweating and lethargy. Looks unwell but in no distress…. Likely viral [or] food poisoning.

72. The Plaintiff returned to Prince Alfred Hospital in February 2007. His evidence was his leg had not mended in a good way. He was feeling more pain. He was taking 5 tablets three times daily, six of those were Panadine Forte. In the absence of Panadine Forte he became agitated (my word) with the pain. (T. 02/03/05 p. 29-30). Dr Mark Horsley advised Dr Sarkis (sic – read “Dr Douaihy’s” whose given name is Sarkis) that the Plaintiff “underwent a repair of an old quadriceps tear from the left leg today at the RPAH …. He will now be in a splint for six weeks with a range of movement from 0-45 degrees. He will be able to weight bear on this leg as able.”

73. On 9th February Dr Douaihy saw the Plaintiff, who listed ongoing pains, depression and limitations as troubling him. Medical condition was described as blood pressure 130/80; dizzy spells, headache, ear ache (no infection). A fortnight later the plaintiff was complaining of an exacerbation of his pains in the last few days. He was asking for more pain relief and psychologic (?) support. Doctor noted he would need referring to the Pain Management Clinic. (Both psychological and pain management at this time were being handled by Dr Mattar.) On this occasion the doctor described the plaintiff’s medical condition as flu like chest illness; blood pressure 144/80.

74. On 16th March the plaintiff told Dr Douaihy he felt the pain was worse during the flu illness, there was tenderness over the lower back, left knee and ankle. The doctor diagnosed a viral coughing. Blood pressure was 110/80.

75. On 5th April 2007 Dr Douaihy again saw the Plaintiff. He complained of ongoing pain and symptoms, including visual disturbances. He told the doctor he was suffering social and family (?) interruptions by his symptoms; that he had been compliant with his medication, mainly antidepressants. On this occasion his blood pressure was 120/80.

76. 17th April Doctor received complaints of ongoing pain in the neck, lower back and lower limbs left greater than (?) right interrupting his sleep and daily living activities.

77. On 23rd April 2007 he was reviewed by Dr Horsley, who advised Dr Douaihy that the repair of the plaintiff’s ruptured quadriceps tendon “seems to be progressing well, although he still has a small defect which I do not think will be a problem. He now requires strengthening exercise which we can arrange through a physiotherapist. I feel in the long-term he will have a good leg which will not pose him any particular problems.”

78. On 25th May there was ongoing back pain, bilateral lower limb pain mainly the left side; also right shoulder pain. There was another visit to the treating doctor on 31st May 07 with complaints of exacerbation of lower limb pain due to a twist while walking. The pain is causing stiffness and limitations of movements. On this occasion he was advised on diet and exercise, no doubt because his blood sugar level was 13.1.

79. Thereafter visits to the treating doctor appear to become less frequent. So far as I can tell the next visit is on 17th August 2007. On this occasion he complained of pain in the left knee, and some swelling (soft tissue (?)) in the middle of the left leg. Again he was advised on diet and exercise – blood sugar level 8.8.

80. There is a visit on 3rd October 2007, when the plaintiff complained of lower back pain and bilateral lower limb pain with stiffness and limitations of movements. This happened as an exacerbation of ongoing pain and discomfort. On examination there was tenderness over the lower back and the left knee.

81. On 12th November, the plaintiff attended his first visit to Dr Douaihy after the pleadings had been filed. Doctor Douaihy noted the patient was complaining of severe lower back pain causing stiffness of the muscles across the whole spine and causing headaches. He was also complaining of left knee pain and lower limb. The pain was worse on the right side of the back and right lower limb. The patient said he was frustrated and fed up with his life, pains and limitations. Examination revealed tenderness across the back, neck and the lower limbs. He was prescribed analgesia, anti inflammitories and rest.

2008 – More of the Same

82. Doctor’s notes of the Plaintiff’s visit on 5th January 2008 appear in two places in Exh D 15. On the occasion of this visit the patient complained of severe pain in the left leg, mainly the left knee area that is causing him extreme discomfort and inability to walk. There were complaints of lower back pain and stiffness. There was also pain to the neck, shoulders that is causing him stiffness and limitation of movement. He was to continue on with the analgesics, anti inflammatory medication.

83. Notes of a visit on 2nd April 2008 also appear in two places in Exh D 15. They have the plaintiff complaining of exacerbation of his ongoing lower back pain, left knee pain. He said the pain also affected his right lower limb as well as neck pain. There was an examination of him by the doctor, but as far as I can tell the findings of that examination appear to relate to his obesity and issues connected to that, which was followed by advice about diet and fluids.

84. There was a second April visit on 24th. The Plaintiff expressed himself as being frustrated and anxious as well as depressed because of the pain and discomfort and limitation of movement. Doctor was told there was an exacerbation of symptoms, mainly lower back, left lower limb.

85. On 24th June 2008 Doctor notes URTI (Urinary Respiratory Tract Infection) coughing, myalgia (?), headaches, chest wall pain, chest sounds(?) wheezy. There was complaint of an escalation of symptoms relating to his leg injury – mainly in the lower back, left lower limb with tenderness, as best I can tell, in the region of the pre-patellar (kneecap) tendon.

86. On 16th August 2008 Doctor notes ongoing cough and sputum production for the last 2-4 days. Fever shivering. Chest wheezing. On going symptoms of pain, stiffness, depression, panics. Counselled.

The Plaintiff’s Evidence - Disabilities and other claimed sequale of the trauma

87. The Plaintiff gives evidence of on-going pain from the injury site, lower back, right shoulder, and right leg. He has to wear a leg brace daily – which he described as “something similar to the foot but it’s thick and very strong” (T.02/03/09 p.36). When he takes it off at night his leg is swollen, he experiences too much pain and starts crying (ibid). When asked which was [his] worst pain he replied: In my shoulder (left one), back and knee. He modified this answer almost immediately by saying the worst thing in his body was his leg and back, with the leg being the worst of all (T. 02/03/09 p. 47/1-24). There is never one day he is without pain in his leg or back. On a scale of 1 – 10 with 10 being most severe, he put the pain at 8 (T. 02/03/09 p. 47/27-37). There is some scarring to the left leg (T. 02/03/09 p. 48/25-30).

88. It is the Plaintiff’s case that he cannot rise from his bed in the mornings without help since breaking his leg (T. 02/03/09 p. 30), nor can he walk without the aid of a walking stick or walking frame. In the absence of one or other of these aids he falls down. When using the walking stick he pushes down on it with such force that he now experiences pain in his hand. (T. 02/03/09 p. 27).

89. He says he is unable to shower without the help of his wife. The carer has now become the cared-for; and the cared-for has now become the carer. She shaves him, and also dresses him. These tasks take her about an hour each day. Prior to his wife taking on the work he engaged a student who came for three or four days from 9 o’clock in the morning to 8 o’clock at night. He cannot now remember how much he paid that student (T 02/03/09 p. 33/13-30). His evidence is it would be better for him if a handrail were installed in the shower (T. 02/03/09 pp. 43/16 – 44/15). Showering was revisited towards the end of examination in chief. The Plaintiff’s evidence was he was unable to wash his hair by himself, Sonya washed his hair and fixed it. She assisted in clothing him. When he goes to the toilet she follows him and stays with him because often he has a difficult time (T. 02/03/09 p. 46/37-49).

90. Prior to the fall he helped around the house with tasks such as sharing the cooking, vacuuming, watering the plants and washing duties. Since he fell he is unable to do any of these duties (T. 02/03/09 pp. 33/32 – 35/5).

91. Since his injury he has fallen down many times. He estimated five times in one month, four in another, and as late as the morning he gave evidence he fell because he had not put a brace on his leg (T. 02/03/09 p. 35/7-31). He complained to a doctor at the Royal Prince Alfred Hospital about falling, and was prescribed a brace to wear on his leg so that it would not twist. He wears this device daily, although as events turned out he was not wearing it on 2nd March 2009 when he was giving evidence.

92. He has been unable to drive a car since receiving his injury, because there is insufficient stamina in his legs. He uses taxis. He does not use buses or trains, because he feels bored from the people, by which he may have meant demeaned or patronised (my words), because he explains – “people want to give me a hand …– I feel old man, I feel I’m something else. I’m not feeling Ali Jammal. I’m not feel that man is strong man, is singing in the stage three hour, sing, dancing. I’m not feel singing and dancing on the bus.” (T. 02/03/09 p. 37/11-39/6).

93. The Plaintiff’s evidence is that he has paid for medications, and taxis that have transported him from money brought to him from a friend, sent to him from siblings in Lebanon, from borrowing money and selling his wife’s jewellery (T. 02/03/09 p.39/34-50).

94. The Plaintiff claims to have increased his cigarette consumption from one packet daily to two packets daily. Before the accident he smoked only one, but has increased his cigarette consumption because he doesn’t eat, he doesn’t want to become fat because he is a singer and dancer (T. 02/03/09 p.40/12-35). His evidence is that he has put on 45 kilo since the incident (T. 02/03/09 p. 46/21-25).

95. He last sang and danced publicly four years ago. He is now unable to perform because he is unable to stand up for two hours or more hours. His evidence is he misses the work and the affection of his audiences. He becomes sad when he watches other performers. (T. 02/03/09 pp. 40/50-43/15). Had he not been injured he would have continued with his work as an entertainer, singer. He reinforced his earlier evidence of missing the work (T. 02/03/09 pp. 47/39-48/5).

Exhibit E – a CD video of three Octobers

96. A CD containing video footage of three occasions when the plaintiff was engaged in his work as an entertainer, singer and comic was tendered in evidence. In became Exh E. The three occasions were the 9th October 2000, 9th October 2001 and the 10th October 2002. The only significance those dates have in evidence, thus far, is that the 9th October is a date given as the Plaintiff’s birthday. The Plaintiff’s evidence of Chapter 12, the last function on the video CD was “Last one before the accident. Because every year I do party special in my name.” The CD was not played in the Courtroom, but I have completely viewed it, and viewed parts of it more than once. I am not satisfied these performances were paid performances.

97. The Plaintiff has presented on each occasion in the video footage as offering mealtime, or post mealtime entertainment. In each case his audience was seated at elongated tables arranged in rows, clearly consistent with their being invited to attendance at a celebratory function, rather than random guests at a club or restaurant. He presented attired in up-market double-breasted suits or an ornate sports coat. He was well received by the audience, sang in a language that was probably Arabic. He was confident, moved freely and without any sign of discomfort. In the 2002 performance in particular, he engaged in dance – showing energy, litheness, flexibility in leg, back, neck and shoulder movement. While no performance was as sustained as 2 or 3 hours, the last, which was the longest, occupied about 30 minutes of the CD. On that occasion he performed with an unidentified partner. I have not ruled out the possibility that it may have been his wife. Indeed there was a familiarity his partner took at the end of their act in wiping his face and hair with two hands and then embracing him, which is completely consistent with a level of intimacy found in a wife.

98. He was confident, poised, clearly enjoying himself, and appeared to have good repour with his audience.

99. By contrast in the courtroom the Plaintiff presented as a spectacle of misery. He shuffled from his place in the courtroom to the witness box with extravagant difficulty. He leant heavily on a walking stick as he moved with deliberate slowness and dramatic effort. He is tall, once well built but now a markedly obese man giving off an overstated sense of presence. His discomfort, whenever experienced in the court was floridly displayed. There was no effort to hide or minimise his problems. He took full advantage of his performance skills to emphasise his woes. The contrast between the witness and the performer who was the centre of warmth in the CD of the videoed performances was marked.

The Medical Reports generated by 2004 injury
Dr Harvey Sutton’ Reports

100. The Plaintiff qualified Dr P.L Harvey-Sutton, Consultant Occupational Physician. She saw him in her rooms on 10th July 2007, and 19th February 2009. On the first occasion his wife and an official Arabic-speaking interpreter accompanied him; on the second only his wife accompanied him and interpreted when necessary.

101. On the first occasion he gave an education and occupational history, and a history of his presenting condition. On the second he confirmed those two histories. His educational and occupational history established that he had completed Year 9 in Lebanon and subsequently trained as singer, actor and dancer, which activities he did throughout the Middle East prior to arrival in Australia in 1987. He continued to work here as a singer, and frequently in a belly dancing act with his current wife. At the time of the accident he was performing at the Serenade restaurant three to four nights weekly.

102. In 2002 he fell hurting his neck and back. He had been off work for a year and a half before returning to work. He had not worked since 18th October 2004.

103. The history given by the Plaintiff of his presenting condition as recorded by Dr Harvey-Sutton throws up a number of inconsistencies with the evidence he gave and established objective facts. Even though I am reviewing the Plaintiff’s case at this point, it is convenient to interpolate the history given to Dr Harvey-Sutton at this point. He told her he had minor pains in neck and back at the time of the fall at Dr Tadros’s premises, but these were controlled with exercise and meditation. From what she was told Dr Harvey-Sutton understood the fall occurred as the plaintiff, who had been at the defendant’s premises to collect a certificate in relation to his wife’s back problems, walked across the doorstep there were new tiles and he slipped on the tiles and fell, breaking his left leg. He was taken to Royal Prince Alfred Hospital where he immediately underwent surgery to the left leg. He went home, his wife helped him shower and perform personal care and all the activities in and about the house. He attended for medical re-examinations but otherwise did not leave the house. He underwent a second operation about six months later with the insertion of two metal bars, 20 screws and two plates. The left leg was then in plaster for a further six months and he continued to be in a wheelchair. A further six months later he underwent a third operation on his left knee and was again in a wheelchair and on crutches for a further six months before he started mobilising with a walking stick. Now he continues to walk with a walking stick at home and outings. He has developed pains in his neck and lower back and pain in the right shoulder with restriction in movements of the right shoulder. He also developed pain in his neck and lower back and pain in the right shoulder with restriction in movement of the right shoulder. He believes he injured his right shoulder as he fell.

104. He told Dr Harvey Sutton he had been diagnosed with Diabetes in 2008 but otherwise has had no other medical condition except that since the fall he has been unable to control his bowels and wears a pad. He also continues to use his walking stick, which he uses in his right hand.

105. His medication included Brufen, Valium, Panadeine Forte, Panamax and antidepressant medication.

106. When seen in 2007 he complained of severe sharp pains in his neck and back much more than his prior pains. He described severe stabbing pains in the left leg all down its length especially at night. Sometimes there was swelling in the left leg. He had added 25kg to his weight. He was dependant upon the walking stick for mobility. He had become irritable and temperamental.

107. In 2009 he described his condition as “more bad” and “more pains”. The pains in the right shoulder were worse and he could not lift up the right arm. Pains in the neck and back existing before the accident were now worse, the neck felt much stiffer and he had to move his whole body to look over his shoulder rather than rotate the neck; he needed assistance getting out of bed; there were now pains in the right leg as well as the left because he had been favouring the left leg. He was unable to sleep without Valium. He continues to have sharp pains which come and go but now occur more frequently and with more severity down the left leg, including the left knee.

108. Activities of daily living also varied between 2007 and 2009. In 2007 he required assistance with self-care, his wife was dressing him and helping with showers. He was doing no household activities, and had ceased to use his home exercise bike because he was no longer able.

109. By 2009 he was not independent in self-care, his wife is washing and dressing him every day. He was still doing no household activities. He used to use a treadmill but now no longer uses the treadmill. He has not driven since the fall. He spends most of his time mainly at home watching TV. He believes he is putting on weight.

110. When conducting her clinical examination in 2007 she observed the Plaintiff was of solid physique, reportedly 165cm in height, and weighed 100kg with a body mass index of 36. In 2009 he believed his weight had increased, but Doctor did not put him on the scales because his overall mobility was too poor. In 2007 he walked with limp holding a walking stick in his right hand. In 2009 he walked using his walking stick with a straight left leg, which was in a brace.

111. In 2007 his wife had assisted him on and off the examination couch. In 2009 even though the wife assisted him, Dr Harvey-Sutton records the plaintiff had difficulty. She notes he had difficulty moving generally. On both occasions his wife assisted him in disrobing and robing, particularly in assisting with removal and putting on his shoes. In 2009 Dr Harvey-Sutton was of opinion that the Plaintiff’s overall mobility has deteriorated significantly.

346. It is incumbent upon those installing the pathway to eliminate or neutralise risk to others using the stairs. The nosing tiles forming the lip of the steps is a clear attempt to neutralise any risk of slipping that may occur as a consequence of contact with the tile during the wet. The ridges of the nosing tile do their work not unlike the treads upon a tyre by guaranteeing a firm or water-free surface in the wet for the weight of any load transferred onto them. As noted above the 2007 Building Code requires nosing tiles to contribute to the non-slip protection measures in-built into each step. The failure of the plaintiff’s experts to include the nosing tiles in their tests deprives the installer (or in this case the defendant) of any consideration of the measures taken to avoid such risk as may be occasioned by the unabsorbed surface water remaining on the tile.

347. These nosing tiles on each of the three steps as shown photograph 3, and the last photograph of Exh D have lateral ridges and grooving. For reasons just given the ridges and grooving I have assumed to be an anti-slip device – yet Mr Grieve does not address the effect, beneficial or otherwise in his report. The wet pendulum test was conducted laterally across a tile – it cannot be seen to encompass the groove and ridges of the nosing tiles. If, one accepts the complainant slipped on this step, in all likelihood his foot would have travelled across this nosing tile. Indeed, it is difficult to resist the inference that some portion of the sole of the plaintiff’s footwear would have been in contact with the ridges and grooves almost immediately upon his placing his foot on the second step. An assessment of the safety of the step should have included some consideration of the part the nosing tile played, if any, in the overall assessment of the safety of the step. My sense is Mr Grieve’s report as to the state of the second step – which is the crucial step on the Plaintiff’s case – is seriously incomplete. If the cause of injury relies upon the state of the step, including the nosing tile, the inadequacy of the surface testing may be fatal to proving fault lies with the plaintiff.

348. Further, I accept the defence submission, at least to the extent that had the wet test been conducted on the middle strip in the same fashion as done on the top step one could not rule out, given the same quality tiles and nosings were being tested, that the result would have been the same or at least very similar – that is 49.3. a reading inside the BPN mean of 45, reflecting a low risk of slipping when wet.

349. Finally, it should be noted that black adhesive non-slip strips were added to the access to the stairs from the surgery door to the top step, across each step and the first point of landing on the tile pathway since the plaintiff’s fall. The person responsible for their being put in place is not in evidence. The time when; the circumstances in which and the reasons for this happening were not disclosed in evidence. In the circumstances I am not inclined, nor, in fairness was I requested to regard it as an admission by deed against either the defendant or cross-defendant.

Dealing with the Plaintiff’s Submissions

350. I am comfortably satisfied the plaintiff left the doctors surgery door, walked across the veranda and made to descend the three steps leading away from the veranda to the pathway below. I am satisfied it was raining lightly as he began to step from the veranda onto the stairs. I am satisfied the second step was exposed to the elements and was wet. I am satisfied the plaintiff saw that it was wet before he stepped from the veranda onto that step. I am satisfied he did not see any danger, including the presence of any mud, on the stairs. I accept a film of slight soil contamination may have settled on the stairs, consistent with the observations of Hugh McMullan. When the rain began this slight soil contamination was capable of being washed away as the rain continued. There is no evidence to suggest a slight soil contamination presented any danger to the plaintiff. On the evidence before me I am unable to say whether it was still present or not, because I am unaware how much rain had fallen. Slight soil contamination is not relied upon in the pleadings – nor in the evidence of the plaintiff.

351. In the Plaintiff’s submissions on causation it was argued descent from the steps was less secure than assent. My own view is that is a matter of foreseeability rather than causation. Likewise the plaintiff submission that the perceived risk of fall is greater when descending is a foreseeability issue. The increased slipperiness of steps after rain is also a foreseeability issue. The causation question is whether the plaintiff has proved the response to these issues by the defendant was inadequate. In the light of more than a decade of relatively heavy traffic during surgery hours without incident, my view is no greater response was required by the defendant when the cross-defendant was undertaking the cosmetic upgrading.

352. The plaintiff relied upon Mr Grieve’s opinion of moderate risk of slipping on the middle step in the presence of water. By virtue of my findings that reliance is no longer open to the plaintiff. It was argued the wet whether conditions at the entrance way was likely to increase anxiety and therefore danger to patients unsteady on their feet. The nexus between anxiety and increased danger for persons unsteady on their feet has not been proved in evidence, and is not a matter of common experience.

353. A claimed underlying defect of construction in steps and risers was relied upon as a cause of injury. There is no evidence the width or length of the tread of the second step or the riser variation from the Australian building standards played any part in the plaintiff’s fall. He does not attribute his fall to either claimed flaw. His evidence is he slipped. There is no evidence to suggest had the step been consistent with the relevant regulations, the difference would have averted, prevented, or ameliorated the slip. The plaintiff had been using these steps for many years in the configuration he encountered on 18th October 2004. There is no other record of his difficulty in negotiating them.

354. The general standard of maintenance of the passageway and stairs was relied upon as causing the plaintiff to slip. I accept in the past the entrance way was flawed as a consequence of maintenance issues – but it was for that reason the cross defendant sought to renovate and upgrade it. At the time of the plaintiff’s falling, the evidence as to the standard of maintenance of the entranceway is non-existent. There is no evidence that maintenance of the entranceway played any part in the plaintiff’s fall.

355. In his pleadings the Plaintiff nominated various areas of negligence which presuppose various causations of injury. Included among them was a claimed failure to warn of the slippery floor surface in the event of rain. While I am satisfied there was no warning sign in those terms, the need for one was not established by the evidence.

356. Further, I am satisfied the plaintiff saw the wet step – knew from his past experience that wet steps could be hazardous. There is no evidence from the plaintiff suggesting he would have changed anything he did had there been a sign warning him of a slippery surface. Indeed, given my view of Mr Grieve’s report I should note I have not been satisfied the plaintiff has proved the step surface was slippery.

357. It was alleged there was a failure to alleviate a slipping hazard. Again I note the plaintiff has failed to prove the step surface was slippery. It was also alleged there was a failure to guard against a high gloss tile becoming wet and slippery in rain. The plaintiff has failed to prove the tiles constituting the step were “high gloss” or had become slippery in the rain.

358. The plaintiff pleaded and argued there was a failure to provide sufficient or additional non-slip surfaces upon the tiles. It is a real possibility (although given the state of the evidence not a probability) that there was no black adhesive non-slip tape affixed to the surface of the second step at the time of the incident. However, given there has been a failure to measure properly the effects of the ridges and troughs nose tiles the plaintiff has failed to prove there was a need for such additional non-slip measures to be taken.

359. It was also alleged there was a failure to provide handrails. It is true no handrails were provided. I am satisfied the half wall at the top step level was within easy reach for any person ascending to or descending from the top step of the veranda who wish to steady himself/herself as he/she climbed to or from the third step to the second step (see photographs 1 and 2 of Mr Grieve’s Report Exh D 25). Moreover, the defendant’s patients, suppliers and others had used this pathway and stair combination for more than a decade without the need for a handrail. The plaintiff himself had been using the pathway and stairs for as long as the doctor had been resident at these premises without any prior need for a handrail. In those circumstances the need for a handrail has not been proved.

Verdict

360. It follows the plaintiff has failed to prove negligence by the defendant. It follows there must be a verdict and judgment for the defendant. It also follows the cross-claim is to be dismissed. There must be a verdict and judgment for the cross-defendant. The plaintiff will pay the defendant’s costs. The cross-claimant will pay the cross-defendant costs. Leave will be given on terms for the parties to notify my Associate in respect of any order to vary the cost orders I have proposed.

361. In the event it should be determined on appeal that the evidence established liability by the defendant, then I make the following observations in respect of damages for the plaintiff. I would find the plaintiff’s non-economic loss as being 20% of a most extreme case.

362. As to economic loss, that was predicated upon Exh C. I regard Exh C as having been typed in 2005. Both areas were the document provides notation for the date the document was signed by “employer” and “employee” are dated 2005. Raid Alsad was not called to verify the document was his document – nor was he called to give supportive evidence of the details of the so-called employment contract. As I pointed out during the hearing there were other serious issues with this document. While one cannot rule out the possibility of a written contract in situations were the entertainer and local restaurant agree to have weekly performance by the entertainer, the stronger likelihood is the gigs are given on oral arrangement. I accept where paid managers are involved the situation may be more formal, but that is not this case. I would set a figure of about $7000 for economic loss based upon a proposition that some few engagements may well have come the plaintiff’s way.

363. Past out of pocket expenses were calculated at $19,117. I have assumed that figure is not disputed. Future out of pockets expenses depends upon the view I take of the plaintiff’s recovery. My view is that his evidence of injuries arising from the October 2004 fall are well overstated. Further, I have spent sometime in this judgment reviewing his pre October 2004 medical situation. I am also of a view those injuries were overstated.

364. In any event the ailments he now complains of were subject to equally extravagant descriptions pre-October 2004. I would determine a recovery period for him from the injuries he received in the October 2004 fall of 9 months to a year. I regard such needs as he has for continued medical intervention, aids, modifications to house, or any other personal need arising from this matter as being more than adequately covered by a buffer of $25,000.

365. If damages were to be awarded, I would award to the cross claimant an indemnity or contribution of 45% of the damages ordered to be paid by the cross defendant.

ORDERS

1.Verdict and judgment for the defendant.

2. Verdict and judgment for the cross-defendant.

3. The plaintiff will pay the defendant’s costs.

4. The cross-claimant will pay the cross-defendant’s costs

5. Leave is given for the parties to apply to my Associate within 21 days for a hearing date to vary any cost order I have made.

I give notice to the parties that I will be perfecting these orders in 28 days time.

CITATION:	Husain Jammal v V & S Tadros [2010] NSWDC 190
HEARING DATE(S):	02/03/2009 - 05/03/2009 23/03/2009 10/08/2009 - 11/08/2009 11/11/2009
JUDGMENT DATE:	30 July 2010
JURISDICTION:	Civil
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	1.Verdict and judgment for the defendant. 2. Verdict and judgment for the cross-defendant. 3. The plaintiff will pay the defendant’s costs. 4. The cross-claimant will pay the cross-defendant’s costs 5. Leave is given for the parties to apply to my Associate within 21 days for a hearing date to vary any cost order I have made.
CATCHWORDS:	Civil Law - Negligence -slip on wet step - Cross Claim against repairer - newly reparied steps and pathway - street to doctor's consulting rooms - exposed to weather - raining - 3 stairs to pathway -slip on middle step - state of repair and maintenance - causation - failure to establish mud on stair as cause - failure to establish defect of construction as cause - expert report - flaws in testing step surface - validity of expert opinion - query whether constructions pre-Building Code caught by Code - failure to establish alleged breaches caused slip -liability of P not established.
LEGISLATION CITED:	Evidence Act 1995 Civil Liability Act 2002
PARTIES:	Husain Ali Jammal (Plaintiff) V & S Tadros pty Limited (Victor Tadros) (Defendant) V & S Tadros pty Limited (Victor Tadros) (Cross Claimant) Ali Jadid (Cross Defendant)
FILE NUMBER(S):	2007/00294564
COUNSEL:	Plaintiff:R Hanrahan Defendant/Cross Plaintiff: D. Cutler Cross Defendant:A Hourigan