Lapthorne v Housing Authority [No 2]
[2018] WADC 18
•12 FEBRUARY 2018
LAPTHORNE -v- HOUSING AUTHORITY [No 2] [2018] WADC 18
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2018] WADC 18 | |
| Case No: | CIV:1463/2016 | 20-24 NOVEMBER 2017 | |
| Coram: | O'NEAL DCJ | 12/02/18 | |
| PERTH | |||
| 50 | Judgment Part: | 1 of 1 | |
| Result: | Action dismissed | ||
| PDF Version |
| Parties: | WAYNE EDWARD LAPTHORNE HOUSING AUTHORITY |
Catchwords: | Statutory authority Scope of defendant's duty of care to tenants with physical limitations or disabilities Breach Causation Damages Turns on own facts |
Legislation: | Civil Liability Act 2002 s 5W, s 5X Occupiers' Liability Act 1985 Residential Tenancies Act 1987 Disability Services Act 1993 (WA) |
Case References: | Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
HOUSING AUTHORITY
Defendant
Catchwords:
Statutory authority - Scope of defendant's duty of care to tenants with physical limitations or disabilities - Breach - Causation - Damages - Turns on own fact
Legislation:
Civil Liability Act 2002 s 5W, s 5X
Occupiers' Liability Act 1985
Residential Tenancies Act 1987
Disability Services Act 1993 (WA
Result:
Action dismissed
Representation:
Counsel:
Plaintiff : Mr N F Morrissey
Defendant : Mr G Bourhill
Solicitors:
Plaintiff : CLP Legal Pty Ltd
Defendant : Moray & Agnew Lawyers
Case(s) referred to in judgment(s):
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215
- O'NEAL DCJ:
Introduction
1 Since about 1993 the plaintiff has lived in public housing provided by the defendant. Since 1994 he has suffered from a left hemiparesis, as a result of a stroke. Initially his left side was significantly paralysed. Early rehabilitation brought improvement in his condition, but for many years he has had weakness in his left leg and arm. He has other serious health problems, some related to chronic alcohol abuse.
2 From 2000 until the present, the plaintiff has lived in a house provided by the defendant on Bourne Street in Morley (the Bourne Street house). In 2014 and 2015 the plaintiff suffered a series of falls, which he alleges were a consequence of the unsuitability of the house for a person with disabilities like his. The injuries received in those falls were alleged to have caused the plaintiff damage and loss, including lost earning capacity.
3 The defendant was aware, prior to 2014, that the condition of the Bourne Street house posed certain risks of injury for the plaintiff because of his medical condition.
4 At trial the defendant put the plaintiff to proof of almost all factual issues arising in this case, from the occurrence of the three accidents alleged to have caused the plaintiff injury, to the measure of any loss or damage said to have been suffered as a consequence. As will be seen however, most of the pleaded issues fell away by the end of the trial.
5 It is not contended by the plaintiff that the condition of the Bourne Street house posed a significant risk of injury for a person with ordinary mobility. The case for the plaintiff is that he was injured because the defendant failed to suitably modify the Bourne Street house to make it safe or reasonably safe for someone with the plaintiff's particular physical problems.
The issues
6 The plaintiff's case appeared to be that the defendant, as a statutory authority engaged in providing social housing, owed a duty to the plaintiff to take reasonable care to ensure that the plaintiff was not at risk of injury due to the condition of his housing, taking into account his physical limitations.
7 The re-amended statement of claim went no further than characterising the duty owed to the plaintiff as, '… a duty to take reasonable care to avoid foreseeable risks of injury having regard to all of the circumstances' or '… a statutory duty pursuant to s 9(1) of the Occupiers Liability Act 1985 to take care which is reasonable in all of the circumstances to see that he would not suffer injury'.
8 While in most circumstances a generalised duty to take care to avoid foreseeable risk of harm may be a sufficient base from which to consider issues of breach, the relationship and circumstances here, and in particular the nature of the risk of harm identified by the plaintiff, push this case beyond conventional bounds. The plaintiff is seeking to impose on the defendant a duty to take positive steps to carry out alterations to its residential properties, to address a risk of harm that arises only by virtue of the personal characteristics of a particular tenant. The scope of the duty for which the plaintiff contends represents a considerable extension of the duty of care owed by landlords identified in the authorities, for example, Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166.
9 On the pleaded case prior to trial, the allegation was that, with knowledge of the plaintiff's 'balance impairments and difficulty navigating stairs safely', in breach of the duty owed to the plaintiff, the defendant:
• failed to transfer the plaintiff to appropriate housing within a reasonable period of time upon receipt of his application for a transfer of housing;
• failed to undertake modifications of the front steps of the premises within a reasonable period of time once it was made aware of the plaintiff's significant mobility and balancing issues and the risk of injury the front steps posed to the plaintiff;
• failed to carry out modifications to the bathroom to prevent the plaintiff from suffering injuries despite notice that the absence of grab rails posed a risk of injury to the plaintiff; and
• failed to take adequate steps to ensure that the premises was free from hazards at the material times.
10 As a result of the defendant's breach of duty, the plaintiff, it was alleged, suffered three separate injuries in three separate incidents:
• On 8 January 2014 falling backwards down the top step of his house, hitting his head and suffering a subarachnoid haemorrhage, a right subdural haematoma, and burns.
• On or about 16 October 2014, when he fell while attempting to step over the threshold of the shower cubicle and in doing so, lost his balance and fell on the tiles. As a result of this incident it was said the plaintiff suffered a ligamentous left knee injury.
• On 3 June 2015 when, as he walked up the front steps of his house, he lost his balance and fell through the gap between the handrail and the front steps. The consequence of this incident was a fractured left tibia and a fractured left fibula.
11 As a result of these injuries it was alleged that the plaintiff suffered permanent disabilities, loss of enjoyment of life, pain, suffering and loss of amenities. It was alleged that because of the injuries he has required and will require in future, paid and/or gratuitous services. There is a claim for special damages in the form of treatment expenses, travel and other expenses. There was a claim for past and future loss of earning capacity and loss of superannuation benefits.
12 From almost the moment the trial began there was a steady retreat as, one by one, contentions and aspects of the plaintiff's case were abandoned.
13 First to go was the insinuation in the pleadings that the front steps were 'hazards'. In the course of opening the plaintiff's counsel accepted that the steps as built 'are normal'. Plaintiff's counsel said, referring to expert evidence to be presented in the trial, that there was a view that '… the nature of the steps, having uneven step ups, if you like, they are potentially hazardous to someone of able body, but we accept that, you know, they probably don't present a hazard to an able body person as they would present to someone who has the disabilities that the plaintiff had'.
14 Next to go was any reliance on the plaintiff as a reliable witness.
15 Just before the plaintiff was called, his counsel told me, entirely correctly, that the plaintiff '… suffers from memory loss and other neurological complaints. It might be that at some point whilst giving his evidence he wanders off or might need some respite from the court'.
16 At the commencement of the second day of trial, plaintiff's counsel abandoned the contention that the defendant's duty of care to the plaintiff was breached by failing to provide the plaintiff with alternate accommodation to meet his particular limitations. As will be seen, the defendant repeatedly offered or tried to rehouse the plaintiff in more suitable accommodation, and those efforts were frequently sabotaged by the plaintiff. So far as the scope of any duty and the breach of that duty is concerned, that left only the contention that the defendant was obliged but failed to act reasonably to make alterations to the Bourne Street house, to accommodate the plaintiff's particular difficulties.
17 Given that the plaintiff now disavows, as either part of the content of the duty or as a breach of the duty, an obligation to act reasonably to move a tenant to more suitable accommodation, some significant problems arise. Why would the defendant expend its limited resources on a house that it might be inclined to sell or redevelop, or give to a tenant without physical limitations, if it could move a tenant with such needs to a more suitable property? As will be seen, the evidence at trial was that the defendant sought to do that here. It might be thought reasonable to do so. Assuming the existence of a duty of the kind contended for, evidence of the defendant's practice of trying to find more suitable accommodation before making expensive alterations could not sensibly be ignored, as I was in effect asked to do.
18 Other aspects of the plaintiff's case were formally abandoned in closing submissions, although it was plain before the close of the plaintiff's case that many of the claims had become untenable.
19 With respect to the first pleaded accident in January 2014, plaintiff's counsel abandoned the claim that that fall had caused a haematoma that was later observed. In effect, any claim of injury with respect to that incident was abandoned.
20 Next, given the evidence from the plaintiff's witnesses, that the plaintiff required and they provided gratuitous services before any of the pleaded accidents, the claim for compensation for such services was abandoned.
21 Finally, in light of the plaintiff's own evidence that he continued to do the same sort of work that he had done prior to any of the pleaded accidents but, as a matter of choice, was no longer being paid for it, the claim for lost earning capacity and superannuation was abandoned.
22 All of these concessions were entirely proper given the state of the evidence at trial. How they ever came to be issues for trial given the available evidence is a more vexed question.
23 All that was really left for me to determine was whether the defendant owed a duty of the kind broadly alleged, whether a breach of that duty had caused the second and third accidents, and the measure of general damages for pain and suffering and loss of amenities of life for those last two injuries.
24 With respect to the central issue of law, the defendant invokes the provisions of pt 1C of the Civil Liability Act 2002(WA) (the CLA) to contend that no relevant duty of care either arose or was breached here but says that, in any event, no reliance can be placed on the plaintiff's evidence of matters necessary to establish any cause of action.
25 By its further re-amended defence, the defendant admits that it is a statutory authority and sets out the manner in which, consistent with budgetary and operational constraints, it provided public housing and rental assistance. The defendant specifically pleads and relies on the provisions of s 5X of the CLA.
26 Given the defendant's status as a public body within the meaning of s 5U of the CLA, s 5W applies:
5W. Principles concerning resources, responsibilities etc. of public body or officer
The following principles apply in determining whether a public body or officer has a duty of care or has breached a duty of care in proceedings in relation to a claim to which this Part applies -
(a) the functions required to be exercised by the public body or officer are limited by the financial and other resources that are reasonably available to the public body or officer for the purpose of exercising those functions;
(b) the general allocation of those resources by the public body or officer is not open to challenge;
(c) the functions required to be exercised by the public body or officer are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate);
(d) the public body or officer may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.
5X. Policy defence
In a claim for damages for harm caused by the fault of a public body or officer arising out of fault in the performance or non-performance of a public function, a policy decision cannot be used to support a finding that the defendant was at fault unless the decision was so unreasonable that no reasonable public body or officer in the defendant's position could have made it.
that any decisions made by the defendant in relation to undertaking modifications to the premises or transferring the plaintiff to alternative accommodations were Policy Decisions within the meaning of s 5U of the Civil Liability Act 2002 (WA). In the event it is found that a Policy Decision as defined is applicable, the plaintiff says that the decision was so unreasonable that no reasonable public body or officer could have made it.
29 This contention attempts to deal with the defence raised based on s 5X, but no answer is made with respect to the provisions of s 5W of the CLA.
30 In the plaintiff's opening, it was contended that every landlord owed a duty, when they had notice of a tenant's physical problems or disabilities, to act reasonably to modify the tenant's accommodation to avoid foreseeable risk of injury arising from the plaintiff's disability and the state of the premises. That position was later revised. The duty was then said to be limited to the defendant alone, as a statutory authority, and only because the plaintiff had adopted a disability and access policy.
31 The written submission of the plaintiff with respect to the s 5W CLA considerations was:
(a) The Defendant had at the material times a well-developed practice of housing disabled tenants within its resources. This included providing purpose-built properties and modifying existing premises.
(b) He makes no criticism of the Defendant's general allocation of resources.
(c) A core activity of the Defendant is leasing the residential premises and, more broadly, implementing the Housing Act 1980 (WA).
(d) The failure to act on the plaintiff's need for safer front steps despite extensive notice constituted a breach of its Housing for People with Disabilities Policy.
32 At the same time, in his oral closing submissions, plaintiff's counsel disavowed any reliance on a breach of statutory duty as a basis of liability.
33 Even without engaging the express requirements of s 5W, it is difficult to see how a duty of the kind contended for by the plaintiff could arise. Even before going on to consider the issue of breach, the scope or content of any such duty becomes problematic, to say the least.
34 The way in which the plaintiff’s case was conducted did not assist me in resolving this difficult question. I am doubtful that any such duty does exist. However, given the evidence at trial, even if such a duty was established, I would not find for the plaintiff. In these circumstances, little is to be gained by a judge at first instance struggling to resolve the legal issue of the scope of the duty of care.
35 What I will do is explain how I have reached the factual conclusions that I have, and in particular my conclusion that the plaintiff is not a reliable witness.
Background
The defendant
36 Mr Greg Cash gave evidence for the defendant. Since July 2017, Mr Cash has been the Assistant Director General of Housing. Prior to that, for three years he was the General Manager of Service Delivery for the defendant. He has been employed by the defendant for about 23 years in a variety of positions. His evidence was largely unchallenged. I accept his evidence.
37 The defendant has existed as a statutory authority since 1946. It is currently constituted under the Housing Act 1980 (WA). The objects of the Housing Act are set out at s 4:
(a) the improvement of existing housing conditions;
(b) the provision of housing and land for housing;
(ca) the letting and leasing of houses, the provision of services relating to the letting and leasing of houses and the entry into arrangements for the provision of such services;
(c) the provision of assistance to enable persons to obtain accommodation or improve the standard of their accommodation;
(d) the encouragement of and participation in the development and redevelopment of land for housing and related purposes;
(e) the carrying into effect of agreements and arrangements entered into with the Commonwealth with respect to housing.
38 With respect to this last object, the defendant is a party to the National Affordable Housing Agreement, which commenced on 1 January 2009. The primary objective of this arrangement is to 'provide all Australians with access to long-term, stable, affordable, safe and sustainable housing that contributes to social and economic participation'.
39 The defendant, as the statutory authority constituted to carry out these objects, provides public rental housing for individuals and families with low incomes who are unable to afford private housing. It also provides targeted programs for public, Aboriginal, and regional housing and private rental assistance. Through a program known as 'Keystart' it assists low income people with home loans, and is involved in organising land and property sales in the metropolitan and country areas of Western Australia.
40 The defendant is given very broad general powers by s 12 of the Housing Act. It has all the powers of a natural person to buy, hold, maintain, improve, exchange, lease and dispose of real and personal property.
41 The defendant also has broad powers with respect to the development and management of land within its control. In particular, it may erect houses and other buildings, maintain, repair and carry out improvements, and generally control and manage any houses and other buildings in its control.
42 Pursuant to div 3 of the Housing Act, the defendant has power to act as a landlord.
43 Part VI of the Housing Act addresses the subject of 'specialised housing and community facilities'. The defendant has the power to buy or develop and to let or lease residential units in 'Specialised housing'. 'Specialised housing' is defined by s 60(2) as:
… a building or a group of buildings which contains a number of separate residential units suitable for the housing of persons including students and aged and infirm persons and which is designed so as to provide living amenities and facilities available for use in common by persons residing in those residential units.
44 As might be expected with a statutory authority of this kind, there is a tension between the objects of the legislation, the resources available to the defendant to carry out the objects of the Housing Act, and the demands on those resources. As Mr Cash said in his evidence, 'this is in part caused by the fluctuation in the economic environment, unemployment and the unaffordability of housing'.
45 To ensure that its resources are distributed equitably to those who fall within the necessary criteria for assistance, the defendant has established a 'Wait-Turn list'. As the name suggests, this is effectively a queue for those who have applied for assistance to wait for available housing. For particularly urgent cases, and these may include applicants at risk of domestic violence and people with significant medical needs, a priority list is established that allows them, at least to that extent, to jump the queue.
46 Mr Cash explained that at the end of June 2010 there were 24,136 applications for housing assistance on the Wait-Turn list, including 3,577 for priority assistance. By June 2011 there were 23,411 on the Wait-Turn list, including 3,251 for priority assistance. In June 2012 there were 22,871 on the Wait-Turn list, including 3,174 for priority assistance. In June 2013 there were 21,121 on the Wait-Turn list including 2,961 for priority assistance. In June 2014 there were 20,013 on the Wait-Turn list including 2,889 for priority assistance. By the end of June 2015, 20,127 applications were on the Wait-Turn list of which 2,770 were seeking priority assistance.
47 A matter heavily relied upon by the plaintiff in its submissions about the scope of the defendant's duty of care is the fact that the defendant adopted a disability access and inclusion plan pursuant to the provisions of the Disability Services Act 1993 (WA). Section 29B of the Disability Services Act provides:
A public authority that has a disability access and inclusion plan must take all practicable measures to ensure that the plan is implemented by the public authority and its officers, employees, agents or contractors.
48 A copy of that plan for the period 2013 - 2018 became an exhibit at trial. The objects and 'strategies' of the defendant's Disability Access and Inclusion Plan are set out in the kind of general terms that one might expect in such a document. The Plan, it is said,
has been designed to provide focus and guidance on access and inclusion to achieve the following objects in the Department:
• Eliminate access barriers and foster inclusiveness;
• Raise awareness and understanding of our customers and employees needs in order to deliver services and information that add value;
• Create an environment that embraces and values diversity; and
• Have a systemic approach to managing access and inclusion which is integral to the way we do business.
49 Under the heading 'Previous Access and Inclusion Successes' the document describes some of the more concrete steps that have been taken to assist those with disabilities. The Community Disability Housing Program is described at some length. The object of that is to provide affordable rental housing for people with disabilities with adequate support arrangements in place to enable them to live independently in the community. This program is carried out in cooperation with non-profit incorporated community organisations or other government agencies to provide affordable rental housing for people with disabilities. Among other things, the document refers to the fact that,
the Department has been working closely with the Disability Services Commission and other non-government specialist housing providers over the past year to develop an up-to-date contemporary design brief for mobility group homes … it is anticipated that the guidelines will be used for the larger 3 – 6 bedroom disability homes and will improve levels of customer service as the document provides information of what is and what is not included as standard …
50 The Plan also refers to the fact that the defendant provides an 'occupational therapist service' to 'ensure that the needs of people with disabilities are properly assessed in regards to their housing and that appropriate allocations are made'.
51 From time to time the plaintiff was assessed by an occupational therapist contracted by the defendant, and the recommendations of that therapist were received and acted upon by the defendant.
52 The 'strategies' that are described within the document make it plain that the main focus of the disability plan is to ensure that people with disabilities are able to access services ordinarily provided by the staff of the defendant and to have the same opportunities as other people to obtain and maintain employment within the defendant's organisation.
53 In the course of Mr Cash's evidence, while describing the defendant's efforts to try to address the plaintiff's medical and physical problems, Mr Cash would not accept a characterisation of the plaintiff as 'disabled'. Rather, he described the plaintiff as a 'person with a medical condition whose medical condition was not being supported by the accommodation'. He agreed that the plaintiff's physical limitations and medical issues meant that he was entitled to be on the priority transfer list to obtain a more suitable property.
54 It might be thought, given the vagueness of the term 'disabled' and the plaintiff's limitations from weakness in his left arm and leg, that Mr Cash's refusal to accept a characterisation of the plaintiff as 'disabled' was pedantic. In fairness to him, in circumstances where, as Mr Cash said, the defendant was called upon to deal with a 'broad spectrum of people from very severe medical conditions and disabilities to people with minor medical ailments that limit their mobility and their ability to manage normal household and yard management activities', the distinction that he drew in the plaintiff's case was not entirely nit-picking.
55 Mr Cash explained that the defendant provides housing for people who are quadriplegics, people entirely confined to wheelchairs, and people missing limbs or with very limited use of their limbs, as well as people with severe psychiatric or other mental impairments. That was his context for distinguishing the requirements of the plaintiff, relative to those tenants he accepted to be 'disabled'.
56 Mr Cash's evidence-in-chief came largely in the form of a witness statement that was tendered into evidence at trial. Before the trial started, one of the plaintiff's principal allegations as to breach of duty by the defendant was that the defendant had failed to transfer the plaintiff to a property that was better suited to his physical problems. The evidence in the witness statement prepared for trial understandably dealt with that particular issue at length, and the defendant's policies about transfers and the demands on its resources in that respect.
57 Mr Cash's evidence was:
The Housing Authority has a policy in relation to applicants with a disability … and will, where an applicant suffers from a disability, try to find them suitable accommodation. Those applicants with disabilities can apply for priority assistance or apply for priority transfer in accordance with the Transport and Priority Assistance Policies and the application will be processed in accordance with those policies.
The Housing Authority will, where possible, seek to respond to the needs of applicants and existing tenants. It recognises that those with disabilities have less opportunity to access housing outside of government assistance and to the best of its ability, the Housing Authority will allow as much flexibility as possible to accommodate the needs of applicants and tenants, rather than adopt a bureaucratic and rigid approach. However, this is done having regard to its overall objectives and available resources.
Where a need for assistance is identified for an applicant or tenant with a disability or a special need, the Housing Authority seeks to work with skilled and personalised personnel to try and ascertain an appropriate housing solution. It is reliant on the advice that it receives. If recommendations are made, the Housing Authority will try to find a suitable solution having within the constraints of its overall objective to provide access to low cost housing for locum individuals and families within its policies and procedures, and having regard to the limited resources available.
The Housing Authority will make modifications to properties to improve useability or accessibility to meet client's needs based on appropriate advice from specialists, subject to cost, demand and a balancing of the competing needs of all those requiring housing assistance. The Housing Authority also encourages clients to access all government and community services as and when required, particularly where there are medical or disability issues involved.
58 The basis for much of what Mr Cash's evidence with respect to these issues was derived from the defendant's 'Housing for People with Disabilities Policy'.
59 Within that document a person with a disability is defined as:
Any person with an intellectual, psychiatric, cognitive, neurological, sensory or physical impairment that is permanent or likely to be permanent, which impacts on the housing needs of that person in terms of housing design, amenity level, or proximity to appropriate medical and support services.
60 The principles underlying the defendant's policy for housing people with disabilities include:
• People with disabilities have ready access to a range of low cost housing options;
• People with disabilities have access to appropriately designed and located housing which meets the individual's needs;
• The needs of people with disabilities should be understood and acknowledged by all The Department staff.
61 This policy contemplates three options for housing for people with disabilities. They include mainstream public rental housing, a community disability housing program, and an Access Home Loan Scheme (home ownership). Of these three, it was the 'mainstream public rental housing' aspect that concerned the plaintiff. For reasons which will become apparent, the plaintiff did not want and never sought accommodation in a community disability housing program.
62 To engage the public rental housing program, applicants had to meet department eligibility criteria and have a current application on the department's waiting list, either on a Wait-Turn or a priority basis.
63 The policy describes this particular option as,
Most suitable for people with:
• limited or no accommodation support needs; or
• individuals who can directly manage their own supports; and/or who can manage a high level of independence by obtaining support provided by others;
• people with disabilities who are living with their families who provide a majority of their support requirements.
Applicants need to have a legal capacity or a substitute arrangement and have an understanding of the responsibilities and obligations of a direct tenancy arrangement.
Please note: The Department does not deliver or fund services for the provision of care or support for tenants.
64 Under the section of this policy entitled 'Guidelines and Practices', the need to submit appropriate medical information with an application is described as well as the fact that:
Applications assessed under this policy will be referred to The Department's Occupational Therapist to determine specific housing requirements.
65 Although the policy runs for 17 pages it was scarcely referred to at trial in the plaintiff's case, apart from the fact that it existed, and that applications of this kind would be referred to the occupational therapist for assessment.
The plaintiff's personal and work history
66 The plaintiff was born in 1968 in Carnarvon. He was the fifth of six children born to his mother and father. He has or had five brothers and three sisters in total, some of them obviously half-siblings.
67 His mother and father were Aboriginal people. His father's people, to whom he most closely relates, are Thudgari.
68 Having regard to the plaintiff's memory and cognitive problems, so described by his own counsel, I accept the following evidence from the plaintiff about his background and work history.
69 He was mainly raised by his grandmother until age 8. At 8 years old, he recalled, he was made a 'ward of the state', seemingly because he took some oranges from a tree branch hanging over a fence next to the footpath. He recalled that he was taken to Perth and put into a boys' home called Castledare. He was allowed to spend weekends at the house of his father's sister, who lived nearby. He remained at Castledare for about two years and he was then sent to live with his aunt and her family. At 10 years old he was required to go to Kewdale High School, although as he recalls it, he was not in the mainstream program.
70 The plaintiff recalled that he had had very little preparation for high school and was not ready for Year 8 when he was placed in that grade. He understands now that he suffered from Dyslexia. Although he was, as he said, 'flogged' because he was perceived as being difficult, he was nonetheless pushed through school for two years until he left at age 12. He then went to the City of Perth where he lived on the street most of the week and returned to his aunt's house on the weekend.
71 By age 12 he was a father, at least in the biological sense. When he was about 13 years old his grandmother moved from Carnarvon and got a house in Perth. The plaintiff was then able to live with her.
72 The plaintiff grew up in circumstances of extreme disadvantage. Despite that, by about age 17 he got his first job, as a bouncer at the Melbourne Hotel.
73 In his later teenage years he returned to Carnarvon and worked occasionally for the Shire. He also had casual work driving a truck for a private contractor.
74 In later years he was able to improve his education, studying six or eight months in a TAFE course, doing general education.
75 Throughout his life he has retained a connection with Aboriginal culture in his traditional area, the Ashburton.
76 In about 1998 a Native Title determination was made in favour of the Thudgari people. The plaintiff was one of the claimants. The determination gave the claimant group the right to negotiate in respect of 'Future Acts'. It allowed them to engage with mining companies interested in establishing tenements for conducting exploration on traditional land. It permitted the claimants to demand payment in return for 'clearances' establishing that Future Acts conducted on traditional lands would not destroy or interfere with areas or objects of cultural significance.
77 In order to take advantage of these opportunities, the Kulyamba Aboriginal Corporation was established. The plaintiff said that was done so that any funds that might flow from the Native Title determination would flow directly to Thudgari people, as opposed to regional land councils.
78 About this time the plaintiff met a German woman named Karin Kenkel.
79 He and Ms Kenkel formed a relationship, and in May 2010 Ms Kenkel gave birth to the plaintiff's son, Wylder. The plaintiff has other children from other relationships but it was never made clear in the evidence exactly how many children the plaintiff has or had in total.
80 In around 1999 the plaintiff incorporated Mimboon Mineral Resources Pty Ltd (Mimboon) to 'get involved in work opportunities in the mining industry'.
81 Several documents that became exhibits at trial show how the plaintiff obtained or hoped to obtain personal advantage for himself from the developments with respect to Native Title. It was not particularly clear however who owned or was associated with the entities I will refer to, or how they were related.
82 A letter dated 14 September 2010 from the Yamatji Marlpa Aboriginal Corporation to Mr Lapthorne confirmed his appointment as a casual employee of the Wyamba Aboriginal Corporation (WAC) at an hourly rate of $30.61 per hour, 'as required to a maximum of 23 hours per fortnight'.
83 In September 2011 the plaintiff entered into what is described as a 'CEO employment contract' with the Kulyamba Aboriginal Corporation. The plaintiff was engaged ' … to serve as full-time Chief Executive Officer of Wyamba Aboriginal Corporation' for an unspecified period of time. The plaintiff said he took this job title 'because I needed to get authority to speak for my land'.
84 The job description in this document includes a long generic list of duties including 'planning, co-ordination and implementation of strategies … identification and securing of funding … financial, tax, risk and facilities management …' as well as 'lobbying government and non-government originations on behalf of Wyamba'. The agreement provided, conveniently for the plaintiff, that the CEO services would be provided from the plaintiff's home address in Bourne Street, Morley. A base salary was provided at an annual rate of $150,000, net. The payment of salary however was only to commence at the time ' … at which WAC has acquired the financial capacity of $25,000 or more (net income)'.
85 The plaintiff gave evidence that, with respect to these duties, Ms Kenkel, 'handles all our administration … basically she runs things by me and I talk to her and tell her what I want …'.
86 In April 2012 Mimboon entered into what is described as a 'consultancy services agreement' with WAC. By this agreement, WAC was said to retain Mimboon 'as its consultancy service provider to perform the services as they relate to WAC's Future Acts and as specified below …'. Essentially, this gave the plaintiff, through his corporation, control over the management of heritage survey deeds and the provision of heritage surveys to mining companies for WAC.
87 Beginning in about 2011 these various arrangements did provide a source of income to the plaintiff. The plaintiff's claim leading up to trial was that the various accidents, said to have been caused by the defendant, had caused him to lose income from those sources and to have suffered a loss of capacity to earn income in the future.
88 Over the years the plaintiff has received payments of social assistance, mainly in the form of disability pension. Tax records that became exhibits at trial showed how this seemed to wax and wane between 2011 and 2016, depending on levels of income received from other sources. In the financial year 2011 the plaintiff received gross payments in the amount of $12,436 from Centrelink. His gross income according to his tax return was however $56,335. More than $16,000 of this was received as salary from the Yamatji Marlpa Aboriginal Corporation.
89 In the financial year ending 30 June 2012 the plaintiff received about $7,200 from Centrelink. However, he received more than $19,000 from the Yamatji Marlpa Aboriginal Corporation and more than $31,000 from the Mimboon Mineral Resources as salary. He received almost $600 in franked dividends and franking credits. His gross income, not including tax free receipts from Centrelink, was over $51,000.
90 For financial year 2013 he received just $5,410 from Centrelink. There was however more than $19,000 in salary from Yamatji Marpla and $36,619 from Mimboon. According to his tax return, his total income for the tax year 2013 was $70,128. That included franked dividends of $10,000 and a franking credit of $4,285.
91 In 2014 he received just $2,900 from Yamatji Marpla but over $19,000 from Kulyamba Aboriginal Corporation and a further $10,833 described as 'allowances' from Kulyamba. His total income fell to $34,135. A further tax free government pension brought that up to an adjusted income of $45,438.
92 For the year ending 30 June 2015 his income fell to just $1,466 in salary from the Wyamba Aboriginal Corporation and Centrelink payments rose to $20,360 for disability for tax free disability support pension.
93 Several matters emerged in the evidence that undermined aspects of the plaintiff's case in respect of lost earning capacity. First, between the financial years 2011 to 2015 the plaintiff earned sufficient income that, particularly when combined with his disability pension, made it questionable whether he should have been a recipient of subsidised public housing at all. It is not however, necessary for me to resolve that issue. Second however, the nature and manner of the payments from various sources to the plaintiff did not have what might be described as an appearance of commercial regularity.
94 For example, in examination-in-chief, the plaintiff was referred to his tax return for the year 2012. His occupation was described there as 'manager' and his total income for the year was said to be $51,257. The plaintiff had been receiving disability pension paid through Centrelink. He was asked in examination-in-chief, with respect to the $51,257, 'and that would have been made up of payments received through your work with Kulyamba and Yamatji Marlpa and payments from Centrelink and Mimboon?' To this the plaintiff responded 'that's why I had to stop getting paid because it was interfering with my disability'.
95 Later he explained that answer to me, saying that what he meant was
because I was earning more, so I had to give one up, and with the disability, I was with my concession cards and you know, I couldn't – I couldn't – and the money we was earning from work wasn't always coming in late. … I had to take a choice. Either walk away from the work, but I can't walk away from my group, and so I basically gave up my wage and just stayed on the disability.
96 A more fundamental problem for the plaintiff's claim for lost income earning capacity was that he gave evidence that, notwithstanding his various accidents, he continued to provide the same services to his group that he always had, without receiving pay other than 'expenses'. For these reasons the claims for lost income, lost earning capacity and superannuation were properly abandoned at the conclusion of the trial. They made up more than $365,000 of the claimants particularised damages claim of $674, 708.
The plaintiff's medical history
97 The plaintiff has a long and unfortunate history of medical problems. They are described in many hundreds of pages of contemporaneous medical records that were available, many of which became exhibits at trial. The defendant conveniently summarised the effect of those records in a document entitled 'Defendant's Medical Chronology for Trial'. The plaintiff was given the opportunity to advise whether he disagreed with any of the entries in the chronology, that is, whether he accepted the correctness of the underlying medical record and summary for each event. Few of the entries were disputed so far as the happening of the particular event. In some cases however the plaintiff either could not remember or disputed a particular medical attendance, even where his personal details are correctly set out in the record. In most cases these differences were not material. To the extent that there is a conflict between any contemporaneous record and the plaintiff's evidence, I prefer the record. Ultimately, plaintiff’s counsel acknowledged the correctness of the summary of the voluminous medical records, and the medical chronology was made an exhibit without objection.
98 In 1994 the plaintiff suffered the stroke that left him with a left hemiparesis.
99 In October 2000 he was admitted to RPH emergency department after he slipped and fell while drunk. He badly broke his left ankle and was placed in a cast. The fracture was serious enough to require fixation with a plate and screws.
100 In March of 2005 he was again admitted to RPH emergency department with a complaint about his left shoulder. He advised the staff at RPH that while drunk he had fallen off his bed and injured his left shoulder.
101 From the two events described above it would by now be apparent that the plaintiff has suffered at times in his life because of his abuse of alcohol. In December 2005, after he had been admitted to RPH emergency department with chest pain radiating down his left arm, observations were made about problems arising from his left hemiparesis and his abuse of alcohol. A 'Falls Risk Assessment' was completed by hospital staff on 7 December 2005. They determined that the plaintiff suffered with mobility and sensory impairment, as well as cognitive impairment. During this hospital admission he was monitored for alcohol withdrawal.
102 In August of 2007 the plaintiff's general practitioner wrote to the RPH emergency department. He described the plaintiff's long history of alcoholism and liver disease. The plaintiff presented with alcohol abuse related problems including cirrhosis of the liver that required urgent treatment. The plaintiff was admitted to RPH at his GP's request. The plaintiff was suffering with gastrointestinal issues and diarrhoea. Hospital records record a 'one month history of ascites with drainage' and a 'history of decompensated liver disease'. Ascites is the accumulation of serous fluid in the abdomen. It is often caused by liver problems such as cirrhosis. That was undoubtedly the cause in the plaintiff's case.
103 There were numerous admissions recorded to treat the ascites. In his evidence the plaintiff denied that there were ever more than two such admissions.
104 During the hospital stay in August 2007 the plaintiff was again monitored for alcohol withdrawal. On discharge, hospital staff noted the deterioration in the plaintiff's renal function and recorded their advice that he should stop drinking.
105 In January 2008 the plaintiff was again admitted to the RPH emergency department with a distended and painful abdomen. The history that was taken recorded a prior history of alcohol abuse, 'drinking 30 cans per day', which had reportedly ceased four months prior. There was another emergency admission in the same month, on 22 January. Once again it was in respect of a painful and swollen abdomen. The history of alcohol abuse was again recorded, but this time staff were reportedly told that alcohol abuse had ceased '9 months prior' because of the kidney and liver issues.
106 During 2008 there were at least a further four emergency admissions, usually because of abdominal problems, although on one occasion it was for facial injuries received in an assault.
107 In June of 2008, the plaintiff was prepared for dialysis for his failing kidneys by the insertion of a Hickman line.
108 In August 2008 the plaintiff was admitted to RPH for preparatory care for dialysis. By 2009 the plaintiff was receiving regular treatment in the RPH renal unit. His blood pressure was observed to be excessively high. In July of 2009, notes from the renal unit record that the plaintiff was, 'noted to be alcohol free and working doing tribal work'. While he was attending dialysis 'fairly regularly', there was poor compliance with diet, food restriction, and medications.
109 In January 2010 the plaintiff was admitted to RPH emergency department, reporting that he had hit his head on a car bumper and lost consciousness. The plaintiff's evidence of this event was quite different from that recorded in the notes. A triage nursing assessment made at the time noted his history of ethanol abuse and recorded his report of smoking three to four marijuana joints per day. A week later he was again admitted to the RPH emergency department suffering with acute pancreatitis. On discharge he was referred to the renal outpatient clinic for appointments for dialysis.
110 In March of 2010, at a dialysis review by the RPH renal unit, medical notes recorded the plaintiff as saying he had ceased drinking alcohol, although he was non-compliant with his medication.
111 At a similar review in July of 2010 the plaintiff was described as non-compliant with medication and smoking 'THC' (presumably tetrahydrocannabinol) three times daily'. The notes of a review in December 2010 are to similar effect.
112 In November 2011 the plaintiff was admitted to RPH emergency department for a blocked fistula. At the same time he was noted to have had a fall a week earlier.
113 On 13 February 2012 Royal Perth Hospital outpatient notes record that the plaintiff had a fall after losing his balance. It was reported that while 'he usually uses a stick' he was not using a stick on the occasion of his fall.
114 During an overnight admission for a vascular procedure in August 2102, a Falls Risk Assessment was made. The plaintiff was noted to have poor coordination and required assistance with 'mobility and transfer'.
115 Hospital notes repeatedly record the fact that the plaintiff has been non-compliant with medication, fluid intake and medical appointments.
116 At a GP consultation in November 2012 the plaintiff's doctor recorded the plaintiff's report of a sprained ankle and the doctor's observations that it was swollen. Once again it was the left ankle that was injured.
117 In January 2013 the plaintiff was admitted to RPH emergency department with diarrhoea and vomiting. Notes made at the time show that the plaintiff was reported as 'out of control with alcohol consumption' although he said that his last drink had been three days prior and that he usually consumed '6 stubbies every two days'. The principal diagnosis was pancreatitis and the plaintiff received treatment for 'post-binge drinking'. He was again monitored for alcohol withdrawal.
118 On 10 January 2014 the plaintiff was admitted to Sir Charles Gairdner Hospital (SCGH) emergency department 'with severe right sided headache of sudden onset'. The plaintiff reported that he had not taken his blood pressure medication and that this headache was 'similar to the kind of headache that he had when he doesn't take his medication'. It records him as saying that he 'drinks alcohol occasionally, nil drugs'. After three pages of patient history and examination findings, under the heading 'Addition', the note goes on to record that the plaintiff said that he 'forgot to say that he fell down the stairs two days ago'. He was recorded as saying that he fell 'about 5 m and fell on his head, did not lose consciousness. Next day again when he got out of bed, he fell and again hit his head on the floor, did not lose consciousness but there's been mild headache since then'. A CT scan performed at this time showed a right-sided subdural haematoma with no mass affect. After an admission for observation the plaintiff was discharged. This would not be the last haematoma or brain bleed suffered by the plaintiff.
119 On 17 January 2014 a friend of the plaintiff found him difficult to rouse and called an ambulance to Bourne Street. Ambulance notes describe the plaintiff's condition as initially being 'droopy with confused speech and no use of his left arm'. He was complaining of a headache and dizziness. He was taken to SCGH Emergency Department.
120 The plaintiff was in hospital from 17 January to 24 January. On this occasion he is recorded as saying to hospital staff that he had fallen five days before, hit his head, had a brief loss of consciousness, and developed a headache. He said he had fallen again when getting out of bed on the day of his admission, again hit his head, and had a headache since then.
121 The nursing admission assessment notes 'various cuts and sores to his arms and legs', but there is no mention of any mark or injury to his scalp, or burns to any part of his body.
122 A CT Scan taken on 20 January showed a 'mild reduction' in the size of the haematoma.
123 On 22 January a social worker interviewed the plaintiff. He told the social worker that he 'lived alone in a public rental' but '… did have a FIFO friend who would stay with him occasionally'. The social worker was concerned that the plaintiff appeared to have limited insight as to the extent of his needs. A concern was recorded that because the plaintiff lived alone and had decreased functional mobility that he was a fall risk. The physiotherapist was concerned that he had a lack of insight into fall prevention and recommended that the plaintiff have assistance from family and friends on discharge.
124 The plaintiff was discharged on 25 January 2014 to the care of Ms Kenkel.
125 Notes made at RPH in January and February of 2014 show that both the physiotherapy and social worker staff from RPH remained concerned about the plaintiff's housing, and his reasons for rejecting alternative properties he had been offered.
126 In July 2014 the plaintiff saw his GP, complaining about a recent fall causing left knee and ankle pain. The plaintiff was referred for X-rays. The X-rays did not reveal any fracture but showed some degenerative changes.
127 I will refer to the examination of the plaintiff's left knee in more detail when I come to describe the circumstances surrounding the alleged accident of August 2014. For present purposes it is sufficient to say that from July to October 2014 the plaintiff sought medical help on a number of occasions for his left knee. He complained of more than one fall with respect to his knee, but sometimes complained without mentioning a fall as the cause.
128 In May 2015 the plaintiff called for an ambulance when he experienced 'stroke like symptoms' with left sided facial numbness. He was taken to Royal Perth Emergency Department. The plaintiff was at RPH on this occasion from 5 May to 8 May. He was interviewed by a social worker on 6 May. Once again there was a discussion about the plaintiff's desire to move because of his unhappiness with the state of his house, in particular the front steps. The plaintiff is recorded as telling the social worker, in summary, that he was in a dispute with the Housing Authority because his house was inappropriate. He confirmed he had been offered a disability unit which he considered equally inappropriate because he believed his neighbours would not tolerate his family coming to visit him – especially in a multi-unit block. The plaintiff is recorded as saying that he was a user of 'THC' and drank on 'footy' days. He reported having had 10 plus falls in the previous 12 months and he asked for a letter to support his case with the Housing Authority.
129 A CT scan taken on 6 May 2015 showed a right thalamic acute haemorrhage. The conclusion was that this was related to a 'hypertensive bleed', an apparent consequence of the plaintiff's very high blood pressure. An occupational therapist's assessment showed that the plaintiff had severe chronic impairments in 'constructional ability' with mild impairments in memory and calculations.
130 The plaintiff was referred to the RPH Drug and Alcohol Support service. Their conclusion was that the plaintiff was a 'happy user' and needed no support.
131 On 3 June 2015 the plaintiff was again admitted to RPH emergency department. This time he had sustained fractures to his tibia and fibula as a result of a fall. He reported that he lost his foot placement and rolled onto his ankle. He further explained that he was ascending stairs, and when he tried to grab the handrail his ankle rolled and he fell onto his left leg.
132 The plaintiff was in hospital this time from 3 June to 26 June 2015. Occupational therapy and physiotherapy both declined to discharge him without rehabilitation. He was ultimately transferred to St John of God Hospital (SJOGH) where he received rehabilitation until 18 August 2015.
133 In the intervening time the social worker at SJOGH liaised with the Housing Authority with respect to the plaintiff's house, and the social worker's concerns about its unsuitability. There was a reluctance to discharge the plaintiff to that house because of the stairs and 'inappropriate home setup'. The notes made by the social worker record however the plaintiff's vacillation with respect to changing his accommodation. As will be seen, that was a recurring theme in the plaintiff's dealings with the defendant.
134 On 15 July 2015 notes record the plaintiff asking the Housing Authority to allow a friend and his two children to be added to the plaintiff's priority transfer application, so that he now required a four bedroom home. The occupational therapist at SJOGH became aware of the change. This prompted the occupational therapist to ask the SJOGH social worker to speak to the plaintiff, to suggest that he remove someone from his application, so as to decrease the time that he would have to wait for an appropriate house.
135 On 17 July 2015 the SJOGH occupational therapist advised the social worker that the plaintiff was now saying that he wanted his ex-partner and child to move in with him, or 'two of his children'. Once again he was advised that he could not unilaterally decide who would move in with him, and that he would have to satisfy the Department of Housing about the eligibility of other occupants of the house for public housing and complete the necessary paperwork before a transfer of that kind could be considered.
136 On 21 July 2015 the plaintiff is recorded as telling the social worker that, having attended the Housing Authority, neither of his children nor his ex-partner and child would be moving in with him, but he wanted to add a friend and his friend's children to the application.
137 On 18 August 2015 the plaintiff was finally discharged from hospital, with his friend 'Johnny'. The plaintiff was at that time in a wheelchair.
138 The broken leg did not immediately heal well, and on 5 November 2015 the plaintiff was admitted to RPH for an open reduction and internal fixation of the tibial fracture. He was discharged from RPH on 24 November 2015 for transfer to SJOGH for rehabilitation. He was discharged on 27 November 2015 'with his brothers' to return to the house in Bourne Street which at that stage had received some renovations.
139 By May 2016 the fractures demonstrated evidence of healing.
140 On 17 June 2016 however the plaintiff was again admitted to the RPH emergency department with a suspected right sided thalamic hypertensive haemorrhagic bleed. A CT scan of his head confirmed that this was indeed the case. This was a further stroke, again affecting the left side of the plaintiff's body.
The plaintiff's dealings with the defendant
141 The Bourne Street house was built in 1966. The Housing Authority purchased it September 1974. It is a three bedroom brick and tile bungalow with one bathroom. So far as can be seen from the limited evidence at trial, it is typical of a particular time and standard of construction. There is no evidence that it underwent any significant renovation from the time of its construction.
142 The plaintiff first successfully applied for subsidised rental housing in 1993. A document entitled 'caretaker comments history', that became an exhibit at trial, includes the period in 1994 when the plaintiff suffered his first stroke. In May 1994 one of the notes refers to a discussion about payment of the plaintiff's rent but concludes 'Wayne is in rehab now but cannot speak or anything, Social Security calling back when able to deduct rent'.
143 A subsequent entry in June 1996 records a discussion about a transfer 'spoke to TNT (tenant) about possibility of moving because of his disability. He said that he had changed his mind and would stay put at the moment'.
144 In March 2000 however the plaintiff successfully applied for a Priority Transfer to a property in what was then the 'North Central zone'. His application was approved and in May 2000 the plaintiff moved into the Bourne Street house.
145 No copy of the actual lease executed by the plaintiff appears to exist. Both parties agree however that there must have been such a document and an example of the version of the document used by the defendant at the time the plaintiff took up the lease at Bourne Street became an exhibit at trial.
146 A matter relied upon by plaintiff's counsel as tending to establish a duty of care of the kind contended for was that the defendant had 'exclusive or near exclusive control over the situation giving rise to the plaintiff's damage', cf Stuart v Kirkland-Veenstra[2009] HCA 15;(2009) 237 CLR 215 [113] per Gummow, Heyne & Heydon JJ. That was established here I was told because, 'you've got a plaintiff who by virtue of the agreement isn't able to conduct structural changes to the premises…'.
147 By its terms the lease document does restrict a tenant from making structural changes to the premises. The complete provision is set out however at cl 11.1,
… the tenant must not make any structural improvements to the premises without the prior written consent of Homeswest, such consent not to be unreasonably withheld.
250 On this version of events it is not possible to say that the presence of a handrail in some unspecified location within the shower would have prevented the giving way of the plaintiff's leg and his collapse to the floor.
251 In any event, prior to this alleged incident in October 2014 the plaintiff had several medical attendances complaining of left knee problems. On 12 July 2014 he attended with his GP, Dr Sivapalan, reporting a history of an unspecified fall, limping, with left knee and ankle pain.
252 On 1 August 2014 the plaintiff attended at the RPH emergency department with pain in the left lower limb and knee. He reported that he had fallen in the shower one and a half weeks prior. He said that he had pain in his ankle initially but it had developed into pain in the knee.
253 An X-ray of his knee showed 'moderate joint effusion' but no fracture or dislocation. Also on 1 August 2014 there was a consultation with another GP, Dr Mulchy. The note made at the Morley Medical Centre on this day records that a friend of the plaintiff's 'Joni' attended the consultation because he 'wanted a carer's pension'.
254 On 4 August 2014 an assessment was made by RPH physiotherapy. The notes show that the plaintiff presented with knee pain following what was described as a fall in the shower and injury to his left ankle. He reported a history of two falls where he had twisted his ankle as the result of his leg giving way.
255 On 19 October 2014 the plaintiff presented to the RPH emergency department for 'pain in left lower limb'. He reported a painful foot but 'denied trauma' when speaking to the Triage Nurse. When he saw the registrar however, he was said to present with, '… a 3/7 (three day) history of left knee pain following a fall at home'. He was in hospital until 27 October 2014. The discharge summary that was recorded noted,
Left knee injury post fall. Reported fall three days prior. Experiencing left knee pain and unable to ambulate.
An MRI performed at SCGH on 16 November 2014 noted a full thickness tear avulsion of the anterior cruciate ligament and a grade 2 injury of the medial cruciate ligament injury with other abnormalities.
This injury was dealt with by physiotherapy.
256 It is difficult to reconcile the plaintiff's description of a fall in the shower, with the pleaded claim that that fall occurred 'on or about 16 October'. From the available records it appears that there may well have been a fall in the shower in the second half of July 2014. Accepting that there was a fall that resulted in the injury seen in late October 2014, I am not satisfied on balance that that harm can be attributed to the fall in the shower, as opposed to another fall in October.
257 The plaintiff's pleaded case as to the third accident was that on 3 June 2015, 'as he was walking up the front steps of the premises, he lost his balance and fell through the gap between the handrail and the front steps'. As a result of this third pleaded accident it is said the plaintiff suffered a fractured left tibia and left fibula.
258 The plaintiff gave this evidence about that accident, following his description of the treatment that he had for his knee injury:
And can you recall after the incident in the bathroom, were there any further incidents at the – at the house or any further falls --- There was other falls but not – not specifically at that time.
No, but after that can you recall a further fall at the property? --- I can't recall because – well, I fell in that house on a few different occasions, I don't know one – one fall from the other because this ---
So you referred to a second fall after the bathroom fall in your evidence before. Can you remember what that fall was? --- It might have been out the front, off the stairs onto my knees.
And if there – if there was another fall, can you remember when that was approximately? --- Like I said, because I had that many different falls at different times I don't know which ones which. Like if you could – I know you can't lead or nothing, I've just got to – because I fell that many different times in that house ---
Can you – can you remember breaking your leg? --- which time?
In 2015, after the bathroom accident? --- Yeah. I remember. Even broke my leg three times.
Can you remember an incident at 2 Bourne Street, Morley after you fell in the bathroom, where you broke your leg? Well, I've been saying all the time that I've been on them stairs and once when I fell through the rail …
Was that – so when you say you fell through the rail? --- Yeah.
Was that after the fall in the bathroom? --- I can't recall.
Remember what happened when you say you fell through the rail, is that when you broke your leg? --- I – I slipped off it when I – yes, but it wasn't fully broken until I got up and tried to go inside and then when I went inside my – I had collapsed.
Yes. So this is – you're referring for an event where you slipped on the front steps? --- Yeah.
Fell through the rail? --- Yeah.
And then you went inside afterwards? --- must have hurt my leg but it wasn't fully damaged until I tried to walk.
And in terms of trying to walk, where were you in terms of your positioning with the steps when you started trying to walk?--- The positioning from when I fell through ---
So were you on the pavement?---The leg was outside the stairs and through the – through the rail.
Yeah?--- he leg was out and I pulled it back in and then I tried to get up and go.
Yeah?---Once I got through and got into the lounge I tried to walk towards the couch and my leg just collapsed.
And what happened when your leg collapsed?---Well, I done more damage to my leg. It broke the middle – the – the big bone.
259 Other evidence in examination-in-chief suggested that the plaintiff was really unable to recall whether he had slipped or fallen from the second or third (top) step on the occasion when he broke his leg. Again, it is not possible to make sense of the mechanism or manner of the alleged fall on the stairs, the reason or immediate cause of the fall, and what might have been done to prevent that particular fall. It is not even clear that the fall on the stairs caused the broken leg, as opposed to a subsequent fall. I am not satisfied that the broken leg was caused by a fall on the stairs.
260 In his evidence-in-chief the plaintiff said that the result of all of these falls, presumably subsequent to the third fall, had had the effect that, 'its basically left me in this wheelchair permanently because I'm too frightened to get up and take a step …'.
261 This claim, that the third accident left the plaintiff 'permanently in a wheelchair', was contradicted by both Dr Goodheart and by Ms Bryan. Both of those witnesses saw the plaintiff mobile without a wheelchair subsequent to the third accident. To the extent that the plaintiff may now regularly require the use of a wheelchair, the evidence strongly suggests that that is a consequence of his most recent stroke.
Consideration
262 Putting aside the problematic legal issue of the scope of the duty owed and the equally problematic factual issues of the question of breach, the fundamental problem with the plaintiff's case is that I am not satisfied that he is a reliable witness. I am in fact positively satisfied that he is an unreliable witness. Some of this may well be a consequence of his cognitive and other health issues. Whatever the reason, even when it is possible to understand how his evidence was intended to relate to a fact in issue, it is not possible to accept it. The transcript will readily demonstrate the difficulties the plaintiff had in giving a coherent narrative, but I will set out some of the more prominent incongruities that have led to my conclusion that I am not able to accept the plaintiff's evidence as to the manner in which he came to be injured at the three times relevant to this action.
263 First, there are the startling inconsistencies between the plaintiff's assertions in his evidence as to how he came to be injured and the severity of the claimed injury in January 2014, as against what he told the medical staff who examined him on various occasions in that month. There are, of course, inconsistencies as between what he is recorded in telling the nurses and doctors on various occasions.
264 There is a similar problem, although to a lesser extent, with the evidence about the second and third injuries.
265 Next, the plaintiff was unable to recall or accurately recall important aspects of his medical history, the nature of particular problems he was experiencing, and treatment he received. The plaintiff was not prepared to accept that he had particular medical complaints at particular times, even when confronted with records of his medical attendances and notes of the histories taken from him.
266 With respect to his falls, in fairness to the plaintiff it might be said that falls are such a common occurrence for him that it would be difficult perhaps to recall any particular fall in reliable detail.
267 There are, of course, some significant discrepancies or inconsistencies in the plaintiff's claims about his earnings. He tried to assert, for example, that his earnings were not in fact really earnings and that he had claimed as income money that he was obliged to pay to others, such as archaeologists and field personnel, for expenses in doing native title future act clearances. The evidence was that the plaintiff had the assistance of an accountant for corporate returns and that of Ms Kenkel with his personal return. There is an obvious irony in the plaintiff trying to disavow the income that he was receiving when he was also relying on it to prove a claim of lost earning capacity.
268 I am not willing to accept the plaintiff's evidence on any issue material to the claimed accidents and their alleged causes, or any harm claimed to have been suffered as a result.
269 Accordingly, the action is dismissed.
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