John Doolan v Belgravia Health and Leisure Group Pty Ltd - [2011] ACTSC 202

JOHN DOOLAN v BELGRAVIA HEALTH AND LEISURE GROUP PTY LTD
[2011] ACTSC 202 (16 December 2011)

NEGLIGENCE — action for damages for personal injury sustained when plaintiff’s leg became lodged in a drain as a result of a missing grate at the edge of a swimming pool complex operated by the defendant — where defendant denied it had been negligent and said in the alternative that the plaintiff had failed to take reasonable care for his own safety — whether plaintiff had pleaded that defendant ought to have installed interlocking grating — where defendant conceded it was an occupier of the swimming pool complex for purpose of s 168 of the Civil Law (Wrongs) Act 2002 (ACT) — where defendant maintained that the owner of the premises was responsible for the state or condition of premises including grating — whether if children had removed the grate deliberately the removal of the grate was the criminal act of a third party for which the defendant was not liable — whether as time of removal of grate could not be established it could not be proved that the defendant’s supervision of the premises was inadequate or that inadequate supervision was the cause of the plaintiff’s injury

DAMAGES — where plaintiff continued to experience pain with leg but its cause remained undiagnosed — whether plaintiff would retire early because of his injury — allowance for pain and suffering

Held: The defendant had been negligent but the plaintiff had failed to take reasonable care for his own safety and his damages should be reduced by 30 per cent. The plaintiff was awarded damages in the amount of $97,719.83.

Civil Law (Wrongs) Act 2002 (ACT) s 168
Criminal Code 2002 (ACT) s 403
Wrongs Act 1936 (SA)
Explanatory Memorandum for Civil Law (Wrongs) Bill 2002

Neindorf v Junkovic (2005) 222 ALR 631, cited
Smith v Leurs (1945) 70 CLR 254, cited
Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254, cited

No. SC 940 of 2008

Judge: Besanko J
Supreme Court of the ACT

Date: 16 December 2011

IN THE SUPREME COURT OF THE     )
  )          No. SC 940 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:JOHN DOOLAN
Plaintiff

AND:BELGRAVIA HEALTH AND LEISURE GROUP PTY LTD
Defendant

ORDER

Judge:  Besanko J
Date:  16 December 2011
Place:  Adelaide via video link with Canberra

THE COURT ORDERS THAT:

There be judgment for the plaintiff against the defendant in the sum of $97,719.83.

INTRODUCTION

In this action the plaintiff claims against the defendant damages for personal injury sustained as a result of an accident which occurred at the Lakeside Leisure Centre, Tuggeranong in the Australian Capital Territory (‘the Centre’) on 29 December 2007.

The plaintiff was born on 5 April 1943. At the time of the incident he was employed as a security guard supervisor by Swift Australia Pty Limited at Longford in Tasmania. Longford is about 20 kilometres from Launceston.

The defendant acknowledged that it was an occupier of the Centre. The defendant contended that there was another occupier of the Centre, being the Australian Capital Territory (‘ACT’). It said that the ACT owned the Centre and that the defendant operated the Centre under a management agreement with the ACT. I will examine the effect of that contention later in these reasons. The Centre contains an indoor swimming pool complex.

In December 2007 the plaintiff and his wife travelled to Canberra to visit his step-son and his family for Christmas. On 29 December 2007, the plaintiff and other members of his family decided to go swimming. They went to the Centre at about 11.00 am. The plaintiff swam in the pool for a time. As he was leaving the pool the plaintiff’s right leg became lodged in a gap in the grating covering a drain near the northern stairs of the pool.

The plaintiff sustained an injury to his leg as a result of the accident and his claim is that the accident occurred by reason of the defendant’s negligence. The defendant denies that it was negligent and, in the alternative, it contends that the accident was partly caused by the plaintiff’s failure to take reasonable care for his own safety. In its Defence it alleges that the plaintiff failed to keep a proper look out for his own safety and that he failed to keep a ‘proper awareness’ of his surroundings.

The plaintiff claims against the defendant damages for pain and suffering, damages for past and future medical expenses, damages for future economic loss, and damages for voluntary assistance and services. He abandoned any claim for damages for past economic loss.

It is convenient to start by setting out my conclusions with respect to the witnesses.

Witnesses

The plaintiff gave evidence and was cross-examined at some length. For the most part he was a reliable witness. I had some reservations about the reliability of his evidence with respect to the effects of his injury. First, I find it difficult to accept the plaintiff when he says he is not able to carry out any gardening, even light gardening, in circumstances where he has been able to continue working full-time albeit with some difficulty. Secondly, the evidence about the plaintiff’s bicycling habits before and after the accident is confusing. The plaintiff said that before the accident he would cycle up to 20 kilometres at any one time to keep fit. He gave evidence of the effects of the accident in terms of his ability to power walk and swim but said nothing about cycling. The plaintiff’s wife said the plaintiff had not cycled since the accident. Dr Leon Leu’s report of 31 January 2009 suggests that the plaintiff told him that he had taken up cycling because his injury had affected his ability to walk long distances and his report dated 22 November 2010 suggests that the plaintiff told him that he had no difficulty in cycling long distances of up to 20 kilometres. Thirdly, when I come to consider the plaintiff’s evidence that he will retire at Christmas 2011 because of his injury I must take into account the fact that the plaintiff has previously said he will be required to retire well before now and claimed economic loss for the effects of his injury from various dates including 1 January 2010 and 1 March 2010.

Mrs Marie Doolan is the plaintiff’s wife and she gave evidence concerning the events on the day of the accident and the nature of the plaintiff’s injury and its effect on their lives. Her evidence as to the events of 29 November 2007 was consistent with the accounts given by the plaintiff and by her son and she was not cross-examined by the defendant. I accept her evidence.

The plaintiff’s step-son, Mr Dean Macaulay, gave evidence. His evidence was largely directed to the events on the day of the accident and was consistent with the evidence given by the plaintiff and Mrs Doolan. I accept his evidence.

The manager and safety officer of the plaintiff’s employer, Mr Tony Brown, gave evidence by telephone. Mr Brown has known Mr Doolan for as long as he has been with his current employer, which is about eight years, and he has had regular contact with him. His evidence was directed to the nature of the work that the plaintiff performs and the likelihood that the plaintiff would continue to be employed with his present employer in some capacity. His evidence was not the subject of serious challenge by the defendant and I accept it.

I also received two reports of Mr Mark Dohrmann who is a professional consulting engineer with post-graduate qualifications in ergonomics. The reports were dated 22 March 2010 and 23 June 2011 respectively. The defendant objected to passages in Mr Dohrmann’s first report and all of his second report. I overruled those objections.

The defendant had been in possession of Mr Dohrmann’s first report for some time before the trial, but only received his second report shortly before the trial.

The particular paragraphs in Mr Dohrmann’s first report to which the defendant took objection were paragraphs 7.10 and 7.12. Those paragraphs are in the following terms:

7.10 Even in the absence of concluded certainty about the construction of the original grate cover and the manner in which it was placed over the grate, it would appear that Mr Doolan was placed at risk of injury by the defendant in the circumstances described. The basis of that opinion consists in the evident fact that an important cover over a grate at an exit from the pool was either loose or missing, and this had not been detected or attended to by staff. There is some information in the briefing material to suggest that there were only a few staff available, and that the person who attended Mr Doolan after the accident was quite young, and may have been inexperienced at looking out for hazards.
7.12 Measures which the Defendant could have taken to prevent exposing Mr Doolan to risk were these:
-by ensuring that the grate covers were installed securely and that they remained securely in position while members of the public were using the pool;
-by diligent supervision and observation of the state of the pool’s perimeter, to ensure that hazards such as a missing piece of drain cover did not come adrift, or were not removed;
-by isolating and barricading the exit point as long as there was any question about the security and stability of the grate cover at the exit point from the pool;
-by ensuring that the grate covers were installed in a way which made them highly resistant to removal by an authorised person, or by accident; and
-by ensuring that there were sufficient staff on duty to watch for problems such as these, and to deal with them.

The defendant objected to the receipt of paragraph 7.10 on the ground that Mr Dohrmann was providing a legal opinion or expressing an opinion which did not involve a matter of expertise. I overruled the objection because it seemed to me that the evidence was admissible and that the objections raised by the defendant went to the weight of the evidence rather than its admissibility.

The defendant objected to the receipt of paragraph 7.12 on the ground that an allegation that the defendant had failed to ensure grate covers were installed securely was not pleaded by the plaintiff. It is convenient to consider this objection at the same time as considering the defendant’s objection to Mr Dohrmann’s second report.

Mr Dohrmann’s second report contains the following opinions:

I have since been asked to comment, if possible, on whether or to what extent there were available to the Defendant at the relevant time practicable means of preventing or adequately reducing the likelihood of pool perimeter grate covers from being accidentally dislodged.
…
In my opinion, there were measures which the Defendant could have taken to prevent these grate covers being accidentally dislodged, and these included ajustments which in my view were quite affordable and easy to implement.
One measure would be to anchor grate covers one to the other to make up a strip, by applying a metal or plastic clip to join them together for a row or section. The clip could be applied underneath by hand, the strip turned over and inserted into position, and be similarly removed. In the alternative, sections could be clipped together using a screw through the end spars of each panel, and a screw driver would be the only tool necessary to separate them.
Arrays of grate covers clipped together in this way would be far more difficult to dislodge (individual panels are much easier to upset).
Another practical means to secure these grate covers would be to drive a small plastic wedge in between adjoining panels, or between any loose panel and the adjacent support frame, at the edge. Using a wedge would allow panels to be tightened into position regardless of the specific clearance between any one panel and the side of the frame. The only tool needed would be a small hammer to drive in the wedge, and perhaps a screwdriver to prize [sic] any panel out, if and when that became necessary (cleaning, etc).

The plaintiff’s Statement of Claim dated 11 November 2008 contains the following particulars of the defendant’s negligence:

2.1Allowing the premises to be in such a state that there was a grate missing from a drainage area close to the pool where high pedestrian numbers were to be expected;

2.2 Failing to warn users of the pool that a grate was missing;
2.3 Failing to fence off the area where the grate was missing;
2.4Failing to keep a proper lookout in relation to the general maintenance of the area where the plaintiff was injured;
2.5Failing to employ sufficient staff to keep a proper lookout in the general area where the plaintiff was injured;
2.6Failing to take remedial action to replace the grate when the defendant knew or ought to have known that it was missing;

2.7 Failing to notice that the grate was missing.

Counsel for the defendant submitted that these particulars did not include an allegation that the defendant failed to install a more secure type of grate.

There are two allegations in Mr Dohrmann’s opinions and they relate to the securing of the grate and the means by which that might be achieved. Mr Dohrmann’s first report deals with the first matter and his second report deals with the second matter.

The particular of negligence in paragraph 2.1 does not specifically identify these two allegations, but in my opinion it was wide enough to cover the allegations. The securing of the grate was a matter raised in Mr Dohrmann’s first report and the fact that there was a means whereby that might be done would have come as no surprise the defendant bearing in mind the renovations carried out to the Centre in October 2008 (see [44] below).

The defendant did not require Mr Dohrmann for cross-examination. Counsel for the defendant said that he had agreed with counsel for the plaintiff that a ‘Browne v Dunn’ point would not be taken against the defendant.

In addition to the above witnesses, the plaintiff tendered a number of medical reports by consent. The defendant did not ask for any of the medical experts to be made available for cross-examination.

The defendant also called one witness, a Mr Douglas Reed. Mr Reed has been the regional manager of the defendant in the ACT since 2005. He was based at the Centre in December 2007 when the plaintiff’s accident occurred. He gave evidence about the Centre generally, the condition of the pool and surrounding area and the arrangements in place for reporting injuries. Generally speaking, I accept Mr Reed’s evidence so far as it went, although I did find it surprising that he could not remember if he was the employee of the defendant who carried out an investigation into the plaintiff’s accident.

The defendant tendered a medical report of Dr Peter Farnbach dated 5 October 2010 by consent. The plaintiff did not require Dr Farnbach for cross-examination.

The defendant also tendered a report prepared jointly by Mr Shaun Hodges, the executive officer of the Royal Life Saving Society – Australia, ACT Branch, and Mr Matthew Griffiths, national manager of Aquatic Industry Services, dated August 2010 by consent. The plaintiff did not require either Mr Hodges or Mr Griffiths for cross-examination.

It is convenient to say at this point that I do not think that the defendant’s expert report advances its case. The defendant’s counsel did not expressly refer to the report in his closing submissions. The report was prepared on a number of assumptions about the way in which the Centre operated and the conditions at the Centre on 29 December 2007 and not all of those assumptions were established by evidence in the case. The evidence that no one noticed the plaintiff’s injury for at least ten minutes after it occurred suggests that the assumptions about the degree of supervision were not established. Furthermore, the primary focus of the report is compliance with the Guidelines for Safe Pool Operation (GSPO) published by the Royal Life Saving Society – Australia. That publication deals with matters such as bather supervision, supervision of children, description of lifeguard duties, accreditation for pool lifeguards, lifeguard duty periods, supervision of pools with moveable booms and supervision of diving recreation.

LIABILITY
The Events of 29 December 2007

On 29 December, the plaintiff, his wife, step-son, daughter-in-law and two grandchildren went to the Centre for a swim. It was a hot day. The plaintiff had not previously been to the Centre. The group paid an amount to enter the Centre. The plaintiff could not recall how much they paid, but Mr Reed suggested that at that time the entrance fee would have been $4 or $5 per person.

The plaintiff, his step-son and his grandchildren swam for approximately half an hour. The Centre consisted of a small wading pool and a large 50 metre pool. The plaintiff swam in the 50 metre pool. He did some laps. After about half an hour the plaintiff decided to get out of the pool. He was the last of his family to do so. Mr Macaulay had got out of the pool and was speaking with a friend whom he had seen. Mrs Doolan was having a coffee at the other end of the pool.

The plaintiff exited via the same steps he had used to enter the pool. Those steps had a hand-rail. At the top of the steps, a piece of grating which usually covered the box guttering into which the pool water flows was missing, and the plaintiff’s foot went down into the drain, to a point just below his knee. The box guttering is 40 to 50 cm deep and the drain was made of rough-cast concrete. The plaintiff tried to extricate his foot from the drain but it took him some time to do that. It was five minutes before he extricated his leg and during that time no one came to his assistance.

Once the plaintiff had removed his leg from the box gutter he looked around for assistance. Mr Macaulay first became aware of the plaintiff’s injury when he saw him stumbling by the side of the pool. The plaintiff was initially unable to tell him what was wrong and Mr Macaulay at first believed that the plaintiff was having a heart attack. The plaintiff then pointed to his leg and Mr Macaulay saw that it was bleeding. Mr Macaulay was more concerned that the plaintiff ‘was upset, he was very upset’.

After what the plaintiff believes was a period of approximately 10 minutes, an employee of the defendant, a young woman who identified herself to the plaintiff as ‘Steph’, approached the plaintiff with a first aid kit. A roster for the Centre was put in evidence and it listed the lifeguards who were on duty at different periods of the day. A ‘Steph’ appears on the roster. Mr Reed thought this might refer to a Stephanie Banham but he was not sure of the surname. He did not recall ever discussing the accident involving the plaintiff with a Stephanie. Of the two Stephanies who had worked at the Centre, one had resigned from her job as a receptionist at the Canberra Swimming Pool and was now overseas on holidays, and Mr Reed did not know where the second was. He thought it likely that it was the first of these. He thought that this Stephanie had been employed at the Centre for between six and twelve months prior to the accident.

The plaintiff told Steph how his injury had occurred and asked her why the drain was uncovered. Steph said to him that ‘Kids often take the drain covers… it often happens’. Mr Macaulay was also present and he heard Steph say words to the effect of ‘oh, it happens all the time, the kids take the grates’. The defendant did not object to the plaintiff or Mr Macaulay giving evidence of what Steph had said to the plaintiff. In fact it embraced the evidence as part of its argument that it was not liable to the plaintiff because it was not responsible for the criminal acts of third parties. I deal with that argument below.

It is necessary to consider the use which may be made of the evidence of what Steph said. I do not understand the plaintiff to contend that it is an admission against the defendant. Rather, it is hearsay evidence of a fairly general nature which was received without objection. As I have said Mr Reed’s evidence was that it was likely that Steph was a casual lifeguard attendant who had been employed at the Centre for between six and twelve months before the accident. I think the evidence of what Steph told the plaintiff establishes that it was common knowledge at the Centre that children would not infrequently remove parts or pieces of the grate from the drain.

Steph gave the plaintiff first aid treatment. It was a hot day and the plaintiff said that he was in shock and could not stand the heat. They moved into the shade. Steph tried to stop the bleeding with a bandage. The plaintiff asked for ice to stop his leg swelling and Steph fetched some ice and it was applied to the plaintiff’s leg.

While Steph was treating the plaintiff he asked her about her first aid qualifications. In addition, Steph completed an incident report and the plaintiff was provided with a copy. The incident report was put in evidence. It is dated 29 December 2007 and records ‘Steph’ next to ‘Reported By’. The time of the incident is given as 11.50. The description of the place where the incident incurred is ‘50 m north end stairs’. Under ‘what caused it to happen’ the form records ‘grate missing at top of stairs, stepped up & foot fell through’. Under ‘what could prevent it happening again’ Steph writes ‘make sure all grates are not missing! watch your step!’

The form then records the plaintiff’s details. Under ‘First Aid Treatment’ the form records:

Clean graze with gauze and saline
apply ice to leg

The second page of the form contains a section headed ‘Further Details’. This again gives the location of the incident as ‘50 m pool north end’ and then a number of boxes are ticked: ‘Trip/Slip/Fall’ under ‘Type of Incident’, ‘Hip/Leg/Knee’ under ‘Part of Body Injured’, ‘Bruising’ and ‘Laceration/graze’ under ‘Nature of Suspected Injury’ and ‘R.I.C.E’ and ‘First Aid’ under ‘Immediate Action Taken’. Under ‘Contributing Factors’, ‘Faulty equipment’ and ‘Other’ are ticked. Next to ‘Other’ is written ‘no grate’.

There is a section below this headed ‘Manager’s Report’ which is not completed, but the form seems to have been provided to the plaintiff prior to the form being passed on to the management of the Centre.

The plaintiff had two lacerations, and blood flowing from the bottom part of his shin and from the area just below his knee. Photographs of those lacerations taken on 3 January 2008 were put in evidence and they show one gash on the plaintiff’s shin, and several cuts just below his knee.

When the plaintiff entered the pool, there was no hole in the grating. There is a photograph in evidence which shows the size of the hole in the grating, although the grating itself at the time at which the photograph was taken is different from that which was in place at the time of the plaintiff’s accident.

The plaintiff left the Centre about 40 minutes after the accident. On leaving he noticed that a witch’s hat had been placed somewhere near the hole in the drain. The hole was still open.

Upon receiving the incident report described above, Mr Reed said he would have checked the area to ensure the grates were in place. He was on leave on 29 December 2007. He said that the Centre had not received any other complaints of that kind but that lifeguards were instructed to look out for anyone interfering with the grates after the incident. He gave evidence that completed incident reports came to his attention and he would then conduct a risk assessment and determine whether the incident was a ‘one-off’ or an incident that might possibly recur. Mr Reed said that the incident reports which he had seen in the two or three years prior to December 2007 did not relate to the removal of grates causing injury, nor has he seen any since. He said that if there had been such reports, they would have been reported in turn to the ACT as part of the monthly reporting procedure. He was not aware that children removing grates was a problem and could not explain why ‘Steph’ would have said that it was.

Mr Reed said that the pool was refurbished in October 2008 at a cost of approximately $4 million and that the grating around the 50 metre pool was replaced, although the refurbishment was not undertaken specifically for that purpose. The grating now around the main pool has rods that run through adjoining pieces but the grating can still be removed by workmen to access the drain underneath. The grating pieces now interlock with each other and cannot be dislodged. Mr Reed said that the previous grating also had a small locking mechanism that would ensure that the pieces did not move when they were walked upon although he acknowledged that this could be removed and accepted that it was much more difficult to remove the grates which were in place as a result of the refurbishment. He accepted that children could easily have removed the old grating.

The pool was also retiled and alterations were made to the roof. The original grating continues to be in place around what Mr Reed described as the ‘family pool’. Mr Reed said that the grating at the Centre at the time of the plaintiff’s injury was similar to any flat deck pool grating in any facility built post-1990. By ‘flat deck pool grating’ Mr Reed said that he meant grating where the pool water is level with the actual drain.

After his injury the plaintiff wrote to the Centre. The Centre responded saying that the matter had been referred to its insurers. On 23 April 2008 the insurers wrote to the plaintiff saying that ‘the matter has been investigated’. As I have said, Mr Reed was not able to say whether it was he or another member of the defendant’s staff who had performed this investigation. The letter from the insurer states:

The matter has been investigated and it is apparent the missing grate lid had been removed by a group of children who were evicted.

Other than this statement, there is no evidence that children had been identified as the culprits on the day and evicted.

The Liability of the Defendant as Occupier

The starting point is the Civil Law (Wrongs) Act 2002 (ACT) (‘the Civil Law (Wrongs) Act’). Section 168 is in Part 12.1 of Chapter 12 of the Act and it deals with occupiers liability. It is in the following terms:

Liability of occupiers
(1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of—
(a)      the state of the premises; or
(b)      things done or omitted to be done about the state of the premises.
(2) Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following:
(a)       the gravity and likelihood of the probable injury;
(b)       the circumstances of the entry onto the premises;
(c)       the nature of the premises;
(d) the knowledge the occupier has or should have about the likelihood of people or property being on the premises;

(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(g) the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

(3) Part 7.1 (Damages for personal injuries—exclusions and limitations) and part 7.3 (Contributory negligence), other than section 102 (2), apply in relation to a claim brought by a person against an occupier of premises in relation to injury or damage.
(4) This section replaces the common law rules about the standard of care an occupier of premises must show to people entering on the premises in relation to any dangers to them.

(5) This section does not affect—
(a) other common law rules about the liability of occupiers to people entering on their premises; or
(b) any obligation an occupier of premises has under another Act or any statutory instrument or contract.

(6) In this section:
“occupier”, of premises, includes the lessor of premises let under a tenancy who—
(a) is under an obligation to the tenant to maintain or repair the premises; or
(b) could exercise a right to enter the premises to carry out maintenance or repairs.

As I have said, the defendant conceded that it was an occupier of the Centre for the purposes of s 168. The occupiers liability provisions in s 168 bear some similarity to the occupiers liability provisions in the Wrongs Act 1936 (SA) which were considered by the High Court in Neindorf v Junkovic (2005) 222 ALR 631. They were introduced to ‘remove the old law relating to occupiers liability and substitute the general law of negligence’ (Explanatory Memorandum for Civil Law (Wrongs) Bill 2002). There was some debate before me as to whether the general principles of negligence in Chapter 4 of the Act also applied to the determination of the defendant’s liability. As it happens I think the same result follows with or without regard to the provisions in Chapter 4 and I did not understand the parties to suggest the contrary.

The defendant advanced three principal arguments in support of its contention that it was not liable to the plaintiff. First, it relies on the uncontradicted evidence of Mr Reed that the ACT owned the Centre and that it operated the Centre under a management agreement with the ACT. From that proposition it argues that it was the ACT and not it that was responsible for the state or condition of the premises including the grating. Secondly, it contends that it is most likely that children removed the grate deliberately. That, it contended, was a crime and it did not owe the plaintiff a duty to keep him safe from the criminal acts of third parties. Finally, it contends that the time at which the piece of grate was removed cannot be established and it might have been removed immediately prior to the plaintiff’s accident. In those circumstances it cannot be established that the defendant’s supervision of the premises or activities on the premises was inadequate or, even if it was, that the inadequate supervision was causative of the plaintiff’s accident.

I reject each of these arguments.

As to the first argument, one would have expected the point to have been made by the defendant in the correspondence before trial. It does not emerge from the defendant’s Defence, although it does not admit that it was the occupier of the Centre or had the control, management or a duty to maintain the Centre. I was told without objection that the management agreement referred to by Mr Reed has not been discovered by the defendant. I can decide the liability of the defendant without considering the effect of these matters.

The defendant had the day-to-day control and management of the state and condition of the Centre and the activities conducted thereon. It had a duty to supervise in those respects and, for reasons I will give, it failed to discharge that duty. In the alternative, the defendant’s admission that it was an occupier of the Centre means that it had the duty identified in s 168 of the Civil Law (Wrongs) Act with respect to the state of the premises and things done or omitted to be done about the state of the premises. For reasons I will give, it failed to discharge that duty.

As to the second argument, there is no direct evidence as to how or by whom the piece of grate was removed. I am not disposed to place any weight on the insurer’s statement that children were identified at the time as the perpetrators, and evicted. That was not supported by any direct evidence and one would have expected that if it did occur one of the plaintiff’s witnesses would have noticed it and given evidence about it. None of them did. Even if I proceed on the basis that the piece of grate was deliberately removed by children there is no evidence as to their ages or mental state such that I could conclude that their acts were criminal within the section identified by the defendant (Criminal Code 2002 (ACT) s 403). Even if the defendant can overcome these hurdles it does not avail it. The cases referred to by the defendant of a child playing with a shanghai and a stone (Smith v Leurs (1945) 70 CLR 256) or thieves attacking a man with a baseball bat in a car park (Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254) involved direct injury caused by the unlawful acts of third parties. That is not this case. Here the plaintiff’s injury resulted from the state or condition of premises open to the public on payment of a fee, albeit that the particular state or condition may have been the result of unlawful acts by third parties.

As to the third argument, a missing grate near the entry and exit point of a public swimming pool represented a serious risk to swimmers and other users of the pool and its surrounds. The evidence of what Steph said establishes that the defendant was aware that from time to time people removed pieces of grate. The defendant had a duty to take reasonable steps to supervise activities in the Centre and to ensure that the state or condition of the Centre was safe for users. There were at least two things the defendant could have done to eliminate the risk of swimmers and other users of the Centre being injured by a missing piece of grate.

The defendant could have ensured that there was an adequate system of supervision, by way of lifeguards and pool attendants, of activities in and around the pool and its surrounds. For example, the lifeguard positions shown in Appendix A of the defendant’s expert report and the roving position recommended in paragraph 8.4.3 would have led to the prompt discovery of the missing grate if not to prevention of its removal in the first place. Even if the standard of supervision required was something less than this, the evidence establishes that the supervision provided by the defendant was inadequate. The delay before any person came to the plaintiff’s aid either as he was trying to extricate his foot from the drain or thereafter establishes that the supervision provided by the defendant was inadequate.

In addition, or in the alternative, there was another means of eliminating the risk of injury caused by a missing piece of grate and that was the interlocking system referred to by Mr Dohrmann. I realise that the defendant is not to be found liable simply because there was a means of avoiding the risk and that means was adopted by it after the accident. Nevertheless, the evidence in this case was that the interlocking system of grating was both affordable and easy to implement. It was an obvious solution to the problem.

I find that the defendant breached its duty of care to the plaintiff.

There must be a finding of contributory negligence against the plaintiff. In making that finding I have had regard to all of the evidence. However, two sets of photographs are of particular assistance in determining whether the plaintiff took reasonable care for his own safety. Exhibit P4 is a photograph of the area showing the grate and looking down the stairs. The photograph in paragraph 5.13 of Mr Dohrmann’s first report is a photograph taken from the other direction and gives one a perspective of what a person walking up the stairs would have seen. Although the hole was no doubt unexpected it was not concealed. I do not think that the plaintiff was looking where he was going as he walked up the stairs. In my opinion, any damages payable to him should be reduced on account of his contributory negligence which I fix at 30 per cent.

DAMAGES

The plaintiff’s evidence and the medical evidence

The plaintiff remained in Canberra for three weeks after the injury. He attempted to rest his leg as much as possible. He did not immediately seek medical attention.

The plaintiff’s leg continued to trouble him and on 7 January 2008 he attended Dr Chong Beng Ooi at Phillip in the ACT. Dr Ooi provided a medical certificate which stated:

This is to certify that I have examined John Doolan today and I confirm that he had tenderness on his right anterior leg, with healing laceration mid shaft. Ambulation is normal in gait.

The plaintiff told Dr Ooi what had happened and Dr Ooi prescribed Hirudoid cream and analgesics for the pain. The plaintiff treated his leg himself with cold packs and kept it bandaged. Dr Leu records that the plaintiff did not use the cream prescribed by Dr Ooi.

The plaintiff returned to Launceston and to work. He was next seen by his general practitioner, Dr Bill Campbell-Smith on 23 January 2008. Dr Campbell-Smith provided a report dated 2 July 2008 in which he said that on 23 January 2008 the plaintiff complained of pain and tenderness in the region of the wound and had a 4.5 cm scar on his foot which was well healed. Dr Campbell Smith observed that the plaintiff still had this scar and still reported pain and aching in the area of the injury on 19 June 2008.

The plaintiff said that he continued to experience symptoms in his leg. The medical experts who have examined him and the scans and imaging of his leg which have been performed have not been able adequately to explain the plaintiff’s ongoing symptoms. In his report of 30 May 2011 Dr Campbell-Smith said that he was uncertain of the cause of the plaintiff’s ongoing pain but that he was certain that the disability was related to the accident. He also considered that the plaintiff’s condition had become marginally worse.

The plaintiff described his ongoing symptoms in the following way. He said that his injury caused him extreme pain and that this pain has never gone away. He said that he experiences an ache approximately half way between his ankle and his knee. That area becomes warm and swollen. He said that it throbs when he has been standing on it for a long time and at night, and that he then feels a burning sensation in the area. He said that it affects his work because standing on his leg all day makes it ache.

The plaintiff said he can no longer run and that his injury has restricted his walking ability ‘dramatically’. He said that prior to the injury he could walk 10 kilometres and cycle for 20 kilometres or more without difficulty. I have already referred to the plaintiff’s cycling activities both before and after the accident. The plaintiff also did some light weight training. The plaintiff was a regular swimmer prior to the accident. Mr Macaulay gave evidence that the plaintiff in fact beat him in a race in the pool at the Centre immediately prior to the injury. The plaintiff has not swum since the accident.

The plaintiff said that his injury had worsened in the three months leading up to the trial in that it had ached more and ‘starts to get so hot’. The plaintiff’s scars from the injury have ‘just about’ disappeared.

The plaintiff continues to be treated by his general practitioner, Dr Campbell-Smith. At the time of the trial he was not taking any medication in relation to his injury.

The plaintiff wears a surgical stocking on one leg (which is designed for varicose veins) in order to take strain off the area of his injury. In giving evidence he said that did not wear surgical stockings before the accident. However, Dr Leu’s medical report, referred to below, records the fact that the plaintiff had worn surgical stockings for a number of years to control the symptoms of his varicose veins.

Prior to the injury the plaintiff had experienced difficulty with varicose veins, a problem which he said was hereditary. Before the accident he had intended to have some minor surgery conducted under local anaesthetic, bilaterous venous closure, in which the veins are collapsed using a catheter with a radio frequency probe and injections. The plaintiff had been consulting Dr Andrew Stirling, a vascular surgeon for the treatment of his varicose veins. This procedure was in fact performed by Dr Stirling in Launceston in February 2008 as had been planned. Dr Stirling took the view that the plaintiff’s injury would not affect the surgery. The procedure was conducted over seven visits and the plaintiff said that he has not experienced difficulty with his veins since the procedure. One of the aims of the surgery was that the plaintiff would no longer have to wear the surgical stockings.

Dr Leu is an occupational physician and he has provided six reports in relation to the plaintiff’s medical condition. He first saw the plaintiff in January 2009. On examining the plaintiff’s leg he observed in his report dated 31 January 2009 that:

There was a pigmentation of the lower parts of both legs consistent with previous varicose veins. There was a horizontal scar 5 cm in length 20 cm below the tuberosity of the right tibia.
The right leg was greater in diameter than the left side at 10 cm (1 cm difference), 20 cm (2 cm difference) and 25 cm (3 cm difference) below the tuberosity of the tibia.
There was a small area of allodynia [pain due to a stimulus that does not normally provoke pain] just distal to the scar but no other areas of altered sensation.
There was a slower return of colour after compression on the right side.
He was able to walk normally without a limp. Heel and toe walking increase the pain over the injured area and there was tenderness directly over the scar.
He was equally unstable on either foot for weight bearing.

Dr Leu recommended that as there had been no precise diagnosis of what was causing the plaintiff’s symptoms, a bone scan be taken. He thought it possible that there was a small crack in the tibia under the site of the main scar which had not healed because the plaintiff had not rested sufficiently. He also considered that periosteal [bone] damage or periosteal avulsion [detachment] were possibilities, as was local cutaneous nerve damage.

A bone scan was subsequently performed. The report was quoted by Dr Leu in his report dated 17 August 2009 as follows:

No evidence of stress fractures or any other significant pathological osteoblastic activity in the bones of the right lower leg. Retention of radioactivity in soft tissue of the right calf may indicate impaired venous or lymphatic outflow. Correlation with Doppler ultrasound of venous system is recommended.

Dr Leu interpreted this as meaning that ‘there was no evidence to support at least one of the diagnoses I made although the bone scan is by no means a definitive investigation because of its low resolution.’

A Doppler ultrasound was also undertaken. Dr Leu quotes from the report as follows:

Conclusion: evidence of some short saphenous venous disease with superficial thrombophlebitis and some incompetence. No DVT identified.
…
On the right there is no deep venous thrombosis. In the short saphenous system there is incompetence and some partial thrombus proximally. More distally the short saphenous vein is completely occluded consistent with superficial thrombophlebitis.

Dr Leu considered that the thrombophlebitis was most likely ‘unrelated to his symptoms but relates to his preceding problem with varicose veins’. Dr Leu did not at that time consider that there were any further investigations available to him to discover the cause of the plaintiff’s symptoms.

Dr Leu provided a report on 8 November 2009 after he was invited by the plaintiff’s solicitors to comment on an MRI scan of the plaintiff’s right leg taken on 2 October 2009. The MRI report was to the following effect:

T2 and STIR imaging shows hyperintensity adjacent to the anteromedial aspect of the mid tibial shaft just above the site of the surface skim marker. The appearances are consistent with some localised periosteal oedema and consistent with periostitis (shin splints)
No underlying marrow oedema or abnormal signal intensity within the underlying tibial cortex is seen to suggest an underlying tibial fracture. No other abnormality demonstrated.

Conclusion: features consistent with Grade I medial tibial stress syndrome with evidence of some pre-tibial periosteal oedema consistent with periostitis.

Dr Leu commented:

The periosteum of a bone… is ‘the layer of tissue that envelops the outer surface of bone demarcating bone from soft tissue’. Causes of periosteal reaction include trauma, tumour, infection and infarction. It is my opinion that the periostitis and periosteal oedema seen on the MRI result directly from the blow to Mr Doolan’s leg. It would seem too much of a coincidence that the only area of periostitis and periosteal oedema is in the location of the original trauma; hence I would suggest there is a causal relationship between the original force applied to the leg by the drain and the ongoing evidence of inflammation.
It is possible that there may be a low-grade infection at the side; that will be rather hard to establish and it might not be a good idea to biopsy the area since that might extend the problem. I’m not sure if Mr Doolan has had a complete blood picture to check on any evidence of abnormality e.g. raised white cell count.
So we have the history of injury and we have a detectable lesion in the right lower leg coinciding with the site of trauma. This is a rather unusual outcome but his accident did involve the acute application of concentrated force to the tibia from the edge of the drain. There is no evidence of fracture but there is continuing evidence of periostitis and periosteal oedema almost 2 years after the event. There is no such reaction elsewhere in the leg or on the other side.

Dr Leu recommended that the plaintiff see a rheumatologist and avoid prolonged standing, walking and climbing. He considered that the plaintiff was more likely to recover if he performed sedentary or semi-sedentary work and said that if such work was not available then he would need to retire from his current work significantly earlier than he would otherwise have done.

Dr Leu provided an updated report at the request of the plaintiff’s solicitors on 22 November 2010. Upon examining the plaintiff’s leg, he recorded:

Again there was pigmentation of the lower parts of both legs consistent with previous varicose veins.
There was a horizontal scar 5 cm in length 20 cm below the tuberosity of the right tibia.
This time there was an increase in temperature at the precise point of injury.
There was a small area of allodynia just distal to the scar but no other areas of altered sensation.
There was a slower return of colour after compression on the right side.

The plaintiff reported to Dr Leu that his symptoms had worsened since the last occasion when he saw him. Dr Leu said it was not clear what the reason for this was but considered it possible that there was ‘some underlying osteomyelitis which was initiated by the original fall’.

Dr Leu said:

My previous diagnosis was that he had periosteal damage and his symptoms could still be due to that. However, the worsening of his symptoms suggests that there may be an additional process going on and the most likely process is infection introduced into the wound at the time of the original injury.

He recommended a further MRI scan to investigate the cause of the plaintiff’s deteriorating condition. He estimated the loss of efficient use of the plaintiff’s right limb at and below the knee at 18%. However, at that time he also considered that unless there was a drastic deterioration in the plaintiff’s condition, the plaintiff should be able to continue working in his current role for another three years.

A further MRI was performed on 2 December 2010. In his report of 16 December 2010, Dr Leu quotes from the MRI report as follows:

Extensive oedema noted in the anterior soft tissues of the leg centred around the area of maximum tenderness where the pill was applied. No significant subcutaneous localised fluid collection with diffuse oedema present. An area of fluid collection demonstrated in relation to the subcutaneous aspect of the tibia. This was below the level of the skin marker. No obvious intramedullary oedema demonstrated. No visualised cortical bony defect. No definite subperiosteal fluid collection currently imaged. The amount of fluid collection in the subcutaneous tissues looks reduced as compared to the earlier imaging. Features suggest ongoing inflammatory change/oedema within the subcutaneous tissues overlying the subcutaneous aspect of the tibia with no definite bony pathology identified.
Evaluation of the soft tissues with ultrasound in this area to exclude the presence of a foreign body may be of value.

An ultrasound was subsequently conducted and found:

No sonographic evidence of a foreign body identified.
The subcutaneous tissues are oedematous and contain varicose veins but no increased vascularity is demonstrated using colour Doppler imaging. Two small areas of calcification <1 mm in diameter are identified which may be related to venous insufficiency or fat necrosis. No periosteal new bone formation/periosteal lifting identified.
CONCLUSION: soft tissue oedema and varicosities only. No foreign body conspicuous.

Dr Leu now says ‘we have probably got as far as we can with imaging.’ As a result of the further tests, Dr Leu considered that ‘the worsening of his symptoms suggests there may be an additional process going on and the most likely process is infection introduced into the wound at the time of the original injury. This then raises the possibility of a subacute osteomyelitis or Brodie abcess.’

As to the future treatment of the plaintiff’s condition, Dr Leu says:

Antibiotic treatment for such conditions is not usually particularly effective probably because of the difficulty getting substantial levels of antibiotic in the area where it is needed. The consequence of this is that surgical exploration of the affected area with debridement would be the best treatment and would also be of diagnostic value.

Dr Leu said that the plaintiff was ‘borderline fit’ for his security officer work. He said that he would probably only be able to work a further 12 to 18 months. He said that his opinion was partially dependent upon what was causing the further deterioration. If he had Brodie’s abscess and that could be successfully treated ‘then his ability to work may be extended’.

At the request of the defendant, the plaintiff was examined by Dr Derrick Billett, an orthopaedic surgeon. Dr Billett provided a report dated 27 August 2009 in which he said:

Mr Doolan experiences a constant dull ache in his right lower leg, which is aggravated on prolonged standing and when negotiating stairs (particularly when descending stairs). He copes with kneeling and squatting. He experiences discomfort when negotiating rough ground and he has decreased his walking distance.

Dr Billett observed that the plaintiff displayed a normal gait. Dr Billett had the report of the plaintiff’s bone scan dated 4 February 2009 and the report of the ultrasound dated 17 March 2009. He recommended that the plaintiff have an MRI study of his right leg. He was not able to diagnose the cause of the plaintiff’s ongoing symptoms, and he said:

The diagnosis has to be established. Mr Doolan sustained a laceration of the varicose veins, resulting in bleeding, with some probable damage to the musculature. It is possible that he may have sustained some damage to the cortical surface of the tibia.
…

His prognosis is guarded at this stage.

Dr Billett examined the plaintiff again and he prepared a second report dated 24 September 2010. He made the following observations as to the condition of the plaintiff’s right calf:

There was pigmented area over the medial and posterior aspects of his right calf measuring 9 cm × 8 cm. There was tenderness over the discoloured area, and tenderness particularly along the subcutaneous border of the tibia. The calf felt slightly warmer compared to the left calf and there was some pitting oedema. There were no signs of deep vein thrombosis.

He noted that the increased tenderness along the subcutaneous border of the tibia, the pitting oedema and difference in temperature were new developments since the last occasion on which he had seen the plaintiff. Dr Billett was provided with copies of Dr Leu’s report of 8 November 2009 and the MRI of 2 October 2009. Dr Billett concluded that:

The appearances are consistent with some localised periosteal oedema and consistent with periostitis. The conclusion was that the features were consistent with a Grade 1 medial tibial stress syndrome with evidence of some pre-tibial periosteal oedema consistent with periostitis.

The new developments led Dr Billett to believe that the plaintiff could have a Brodie’s abscess, which is a low-grade infection. He recommended that the plaintiff be referred to a rheumatologist and that surgery be undertaken to explore the area at the Avenue Hospital in Prahran, Victoria.

On 16 February 2011 the plaintiff’s solicitors wrote to the defendant’s solicitors asking that the defendant meet the cost of the surgery in Victoria. The defendant has not admitted liability and has declined to do so. The exploratory surgery has not been undertaken.

The plaintiff said that he feels that since the injury he has become more short-tempered. He experienced flashbacks of the incident and he has not been swimming since the accident. The plaintiff says that he experiences difficulty sleeping because his leg aches and ‘burns’ and this wakes him up. He and Mrs Doolan do not share a bed several nights a week now because Mrs Doolan is afraid she will touch his leg and cause him pain.

Mrs Doolan gave evidence that she observed the plaintiff to be agitated all the time, and to lack interest in things he would have been interested in before the accident, like activities with his grandchildren.

The plaintiff was referred by his general practitioner to a psychologist, Ms Bev Ernst, in March 2009 and he has seen her about a dozen times. He says that he needs to see her in order to try to overcome his fear of getting in the water and to assist him with the depression from which he suffers.

Ms Ernst has provided a report dated 30 September 2010. She considers that the plaintiff has sustained ‘psychological consequences’ as a result of the accident and ongoing pain and disability. She records the fact that the plaintiff reports experiencing ‘intrusive thoughts’, anger, avoidance and distress. She said that the plaintiff ‘appears to have met the criteria for PTSD [post-traumatic stress disorder] however over time his symptoms lessened and developed into an Adjustment Disorder with Mixed Anxiety and Depressed Mood as a direct result of the injury and consequent impact on his life and work.’ Ms Ernst considers that this condition affects the plaintiff’s future job security and general enjoyment of life. At the time of the report Ms Ernst considered that the plaintiff’s condition was stable but that he remained ‘vulnerable to increasing anxiety and depressive symptoms depending on the continuing impact of his injury’. Ms Ernst also noted that it would be unrealistic to expect the plaintiff to seek alternative employment if he becomes unable to perform his current duties, given ‘his age, physical disability and ongoing psychological condition’ as it would expose him to increased anxiety and stress and could exacerbate his depression.

In his report of 30 May 2011, Dr Campbell-Smith says that the plaintiff is depressed and shows evidence of Post Traumatic Stress Disorder (‘PTSD’).

The plaintiff’s solicitors obtained a report from Ms Maureen Blane-Brown, a clinical and forensic psychologist. Ms Blane-Brown saw the plaintiff on 19 January 2009. Ms Blane-Brown considered that the plaintiff met the clinical criteria for the presence of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. She also considered that he met the requirements for PTSD and appeared to have suffered a PTSD reaction within the 6-week period after the injury but that since early 2008 those symptoms had dissipated and transformed into adjustment issues. However, ‘his avoidance of pools and forced early retirement suggest that his PTSD issues have still remained chronic and severe in the present time.’

The defendant arranged for the plaintiff to be seen by a consultant psychiatrist, Dr Peter Farnbach, on 30 September 2010. Dr Farnbach had Dr Leu’s report dated 9 February 2009, and Ms Blane-Brown’s report, among others. Dr Farnbach concluded:

In summary, Mr Doolan presents with symptoms of a mild adjustment order with irritable mood and very mild features of traumatisation. He does not meet the criteria for post-traumatic stress disorder.
Any incapacity with respect to work is attributable to his pain rather than to his psychiatric symptomatology which is extremely mild.
With regard to treatment, the treatment of Mr Doolan’s adjustment symptomatology is the definitive treatment of his leg pain. This would result in a very rapid improvement in his irritability. He would, however, benefit from a limited number of sessions with a psychologist (approximately four) to encourage him to return to swimming pools and thereby reduce his ‘wariness’ in that situation. Otherwise, Mr Doolan requires no formal treatment for his condition. He does not require medication at this stage although he would benefit from treatment for his pain e.g. analgesia at night to help his onset insomnia.

I turn now to the plaintiff’s employment history and his domestic activities both before and after the accident.

The plaintiff left school when he was 17 or 18 years of age and he qualified as a motor mechanic. He worked for approximately 13 years for RACT Launceston performing vehicle inspection and road service, and then for 13 years at Camalco Bell Bay in security and emergency services. He is presently employed by Swift Australia Pty Limited as head of security. He has worked there for six years.

The plaintiff said that he worked seven 12-hour shifts per fortnight, being three shifts one week and four shifts the next, on a rotating basis. This involved working 42 hours per week. He worked both day and night shifts. He said that much of his 12 hour shifts is spent on his feet. His duties involved checking arrivals at the plant, and monitoring vehicle movements such as stock trucks. His duties also included inducting new employees. On night shift, his duties involved locking up the offices, the plant, and any areas that have been left open, and performing freezer checks every three hours, and general inspections of the plant. The security guards were also the first aid officers in the plant. He said that his job involved climbing flights of stairs, and from time to time it involved extensive walking around the plant. He said that from the front gatehouse, at which the security guards are stationed, to the plant, it is a five-minute walk, and then there is the walk around the plant. The plaintiff said that prior to his injury he did not experience any difficulty in performing his duties.

The plaintiff said that while he remained capable of performing his job, he was not able to perform it ‘to the ability that I should be able to do it’. He continued to receive full pay and to work normal hours. The plaintiff said that he finds his job more difficult every day and that he cannot do what he used to be able to do. The plaintiff said that if part-time work was available (say 20 hours per week) of the same type, he might be able to work beyond Christmas 2011.

Mr Brown gave evidence that the day-shift at the plant involved general gatehouse duties. The after hours shift required the security personnel to do regular rounds of the plant, performing temperature readings and general checks. It would involve climbing stairs. He considered that this would require the security personnel to be fairly physically fit and that it required more walking than was required during the day-shift. He estimated that over both shifts 40 to 50 per cent of the time would be spent in the gatehouse. He did not consider that the plaintiff had any difficulty with his work prior to the injury although he was aware of the plaintiff’s varicose vein problem. After the injury he did not initially observe much change in the plaintiff’s work capability. Later the plaintiff told Mr Brown that working was causing his leg to ache, particularly at night. Mr Brown does not himself observe the plaintiff walking around the plant because the plaintiff is not required to do that on day-shift. He said that he had certainly seen the plaintiff limp on some occasions.

Pursuant to a wage agreement entered into in August 2010 the plaintiff is paid $63,635 (including superannuation) per annum. After tax and the deduction of superannuation the plaintiff receives approximately $920 net per week. In addition to that figure he occasionally receives overtime payments for four shifts being a gross figure of $530 per day.

The plaintiff will be 70 on 3 April 2013.

In April 2008 the plaintiff registered for Centrelink’s ‘Pension Bonus Scheme’. That is a scheme under which, by deferring a claim for the Age Pension and remaining in the workforce, a person can receive a tax free lump sum bonus when he or she eventually does claim the Age Pension. The amount of the lump sum which a person receives under the scheme depends, in part, upon the length of time for which they have been an accruing member of the scheme. An information sheet put in evidence which was obtained from the Centrelink website on 20 July 2011 shows that upon membership of the scheme for one year a partnered person is entitled to a bonus of $11,497.30 at retirement. The plaintiff has been a member of the scheme for three years. The plaintiff gave evidence that, but for his injury, he would have retired at the age of 70, by which time he would have been a member of the scheme for five years and would have received the bonus for five-year membership of the scheme, which is currently set at $31,937.00.

The plaintiff said that prior to his injury he intended to continue working fulltime until he reached the age of 70 in April 2013. A statement of particulars provided by the plaintiff’s solicitors in February 2009 stated that:

On the balance of probabilities, as a consequence of the injuries the plaintiff sustained on 29 December 2007, the plaintiff will now be required to retire from his employment as a security supervisor by on or before 1 March 2010.

The plaintiff did not retire in March 2010. At the time of the trial the plaintiff continued to be employed but said that it was his intention to retire by Christmas 2011. The plaintiff said that his doctor has advised him to retire immediately. A letter from Dr Campbell-Smith to the plaintiff’s solicitors dated 19 July 2011 contains the following statement:

I have recommended that due to his R leg injury he retires this year and not when aged 70 as had been his plan.

Mrs Doolan said that the plaintiff had intended to continue working to the age of 70 and Mr Brown said that work up to the age of 70 would be available to the plaintiff. Mr Brown was not able to say whether, if the plaintiff was unable to continue performing his full working duties, work would be made available to him for reduced hours. He said that the usual structure was for full-time employment of the security personnel with one relief person covering holidays. He said that the plaintiff was regarded as a valued employee.

The plaintiff lives in a house with what he described as several large lawns. He said that prior to the accident he carried out work in the garden including mowing the lawns. He said that since the accident he has mowed the lawns or carried out gardening work only once or twice because it makes his leg ache. His wife now does the gardening including the lawn mowing. He said that his wife mows the lawns once a week but agrees that once a fortnight in summer and once every three weeks in winter would be more reasonable. The plaintiff gave evidence that it takes his wife just over an hour to mow the lawns. Mrs Doolan said that they owned a large block and that she cut the lawns every week, and spends ‘a couple of hours, at least and probably more than that’. She said that she spends two to three hours doing the gardening and mowing, and an extra hour in summer.

The plaintiff said that he could no longer climb on the roof or climb ladders. His wife now replaces light bulbs, a task he previously performed.

Prior to his injury the plaintiff maintained a vegetable garden and ornamental gardens. He estimated that he would have spent 2 or 3 hours per week gardening.

In his statement of particulars filed on 25 February 2009, the plaintiff said that five hours per week of unpaid domestic work was performed by his family for his assistance between 29 December 2007 and 28 March 2008. The hours between 29 March 2008 and 24 October 2008 were four hours per week, and the hours between 25 October 2008 and 26 February 2009 were three hours per week. The defendant relies on this as showing a steady decrease in the amount of domestic services being provided for the plaintiff’s benefit.

Pain and Suffering and Loss of Amenities

The plaintiff has a life expectancy of a further 17.5 years. His past pain and suffering and loss of amenities of life has extended for a period of about four years and will continue in the future.

On the other hand, as I have said, although I generally accept the plaintiff as a reliable witness, I did think that he was somewhat preoccupied with his injury. He makes no claim for past economic loss and he has continued in full-time employment since his accident. For reasons I will give in connection with his claim for future economic loss I do not accept that his injury means that he will have to retire at the end of this year.

I did not hear any of the medical witnesses cross-examined, but I have read their reports carefully and I heard evidence from the plaintiff. I am disposed to put most weight on Dr Leu’s reports in terms of the plaintiff’s physical injury and Dr Farnbach in terms of his psychiatric injury. As to the former, he is well-qualified, and has seen the plaintiff regularly over a substantial period and written very detailed reports. As to the latter, Dr Farnbach’s opinions accord with my own view of the plaintiff, formed by watching and listening to him in the witness box, and with the plaintiff’s evidence. I also place weight on Dr Billett’s opinions which do not materially differ from those of Dr Leu.

I was not referred to awards made in any cases which are said to be comparable with this case. In my opinion, an overall award of $35,000 is appropriate for pain and suffering and loss of amenities. I would allocate $20,000 to past pain and suffering and $15,000 for future pain and suffering. Interest on past pain and suffering should be allowed at 4 per cent. As the award accrues over the period I would allow half being a sum of $1,600.

Special Damages

Past medical expenses or special damages have been agreed at $7,164.75.

Future Medical Expenses

The two principal items here are the surgery to ascertain whether the plaintiff has Brodie’s abscess and the cost of sessions with a psychologist. There may also be some costs associated with attendances on medical practitioners and medication. It is difficult to be precise because I have no evidence as to what the costs are likely to be. I will allow a sum of $7,500.

Future Economic Loss, Loss of Superannuation and Loss of Pension Bonus

It is convenient to deal with the loss claimed under these heads together. They all depend on a finding as to whether the plaintiff is likely to retire before he reaches the age of 70 on 3 April 2013 because of his injury and if so, a finding as to when he is likely to retire.

The plaintiff has put forward a calculation of his loss on the basis that he retires at Christmas 2011 and on the basis that he retires on 3 April 2012 being his 69^th birthday.

Retirement at Christmas 2011 $	Retirement on 3 April 2012 $
Future economic loss	60,982	47,862
Loss of Superannuation	8,590	5,727
Loss of pension bonus	28,722	15,206
Total	98,294	68,795

In the circumstances of this case there are potentially two issues. First, when is the plaintiff likely to retire and secondly when is he likely to have had to retire because of his injury. They are clearly not completely separate issues. A finding as to the former may have a strong bearing on the finding as to the latter.

The plaintiff says he will retire at Christmas time and his general practitioner has recommended that he do so. However, I do not have any evidence from the general practitioner as to the circumstances and basis of his recommendation.

I have very considerable doubts as to whether the plaintiff will retire at Christmas of this year. I think he enjoys his work. He has previously indicated that he would retire and then not done so. He is not to be criticised for that but it does bear on the question of when he is likely to retire.

Even if he did retire at Christmas 2011, I am not satisfied on the balance of probabilities he would be required to do so because of his injury. The medical evidence does not help a great deal. Dr Leu in December 2010 referred to him as ‘borderline fit for his security officer work’ and that he could probably work another 12 to 18 months. Dr Billett does not offer a contrary opinion. Dr Farnbach’s evidence is that whatever psychiatric condition the plaintiff has is mild and it would seem would not prevent him from working.

I think the plaintiff is entitled to an award for future economic loss and loss of superannuation and pension bonus on the basis that he is likely to retire early or at least that there is a not insubstantial chance he will do so. It is difficult to be precise but having regard to all the evidence I think it is appropriate to calculate the loss by reference to a retirement date of around the middle of next year. Doing the best I can with the figures provided to me, I will award a sum of $52,000 for future economic loss and loss of superannuation and pension bonus.

Voluntary Assistance and Services

The principal item here is the gardening and lawn mowing services which the plaintiff has been unable to carry out and which have been performed by his wife.

As I have said, I am surprised that the plaintiff can work full time, although under some difficulty, but is unable to carry out even light gardening duties. However, the claim made for the inability to perform domestic services is put forward on a fairly modest basis of two hours per week and I will allow it. I award $6,700 for past and $29,635 for future.

Conclusion

The plaintiff has established that the defendant breached his duty of care to him and he is entitled to recover his loss and damage. However, his damages must be reduced by 30 per cent by reason of his contributory negligence.

The plaintiff’s loss and damage is as follows:

$
Past pain and suffering	20,000.00
Interest on past pain and suffering	1,600.00
Future pain and suffering	15,000.00
Special damages	7,164.75
Future medical expenses	7,500.00
Future economic loss and loss of superannuation and pension bonus	52,000.00
Voluntary assistance and services Past Future	6,700.00 29,635.00
Total	139,599.75
Reduced by 30%	97,719.83

I will hear the parties as to costs and any other orders.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:
Date: 16 December 2011

Counsel for the plaintiff: Mr S Pilkington
Solicitor for the plaintiff: Maurice Blackburn Lawyers

Counsel for the defendant: Mr C Locke
Solicitor for the defendant: Goldrick Farrell Mullan

Dates of hearing: 21, 22 July 2011
Date of judgment: 16 December 2011