Mawdesley v The Owners of Careening Gardens Being Strata Plan 3848 - [2012] WADC 103

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MAWDESLEY -v- THE OWNERS OF CAREENING GARDENS BEING STRATA PLAN 3848 [2012] WADC 103

CORAM: WAGER DCJ

HEARD: 16-24 APRIL 2012

DELIVERED : 2 JULY 2012

FILE NO/S: CIV 581 of 2010

BETWEEN: KEVIN WILLIAM MAWDESLEY
Plaintiff
AND
THE OWNERS OF CAREENING GARDENS BEING STRATA PLAN 3848
Defendant

Catchwords:

Personal injuries - Negligence - Duty of care - Hidden danger - Contributory negligence

Legislation:

Civil Liability Act 2002
Occupiers Liability Act 1985

Result:

Judgment for the plaintiff
Plaintiff's contributory negligence assessed at 50%

Representation:

Counsel:

Plaintiff: Mr M Herron
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Rattigan Kearney & Bochat
Defendant: SRB Legal

Case(s) referred to in judgment(s):

Douthwaite Holdings Pty Ltd v Saliba [2006] WASCA 72
Gorman v Scofield [2008] WASCA 78
Grimes v Grimes [2010] WADC 337
Marinko v Masri [1999] NSWCA 364
Mills v Richards [2002] WADC 57
Morrell v Sestich [2003] WADC 225
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Still v Bowler [2000] WADC 165
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562; (2001) 75 ALJR 1570
Wyong Shire Council v Shirt (1980) 146 CLR 40

WAGER DCJ: On 18 September 2005 the plaintiff, Mr Kevin Mawdesley, severely injured himself when, in the course of inspecting a roof, he fell through a skylight of polycarbonate sheeting landing on the paving below. As a result of the fall Mr Mawdesley suffers from permanent incomplete paraplegia below the C2 spinal cord level. He is now severely impaired with limited mobility.
Mr Mawdesley alleges that because he fell in the course of inspecting common property at the request of the defendant, the strata company for the block of units, the defendant strata company owed him a duty of care to warn him of the hidden danger or hazard of the polycarbonate sheeting skylight positioned next to the roof that was common property because it was a danger known to the strata company but not known to him. The strata company was negligent because it failed to tell Mr Mawdesley of the presence of the polycarbonate and the hidden danger that it posed.
The strata company denies negligence and alleges that Mr Mawdesley voluntarily assumed the risk of going onto the roof at the request of his wife and father‑in‑law and that in so doing he failed to take reasonable care for his own safety.
The quantum of the claim made by Mr Mawdesley is also in issue.

The evidence

In September 2005 Mr Mawdesley lived with his wife of 40 years Judith Anne Mawdesley at unit 1, 27 Victoria Street, Rockingham, which was one of a group of four strata titled units known as Careening Gardens. His wife was the sole owner of unit 1, however, they had jointly occupied it for about 12 years. At the time his parents‑in‑law Mr and Mrs Joseph Kerford (both of whom are now deceased) lived at unit 3 and Mr and Mrs Mawdesley jointly owned unit 4 as an investment property. Unit 2 was owned by Mr Benjamin Malter but it was managed by his mother Mrs Patricia Malter who arranged for private tenants to occupy it.
Careening Gardens was originally built in 1976. In about 1996 the former owners of unit 2, the McAllisters, built a games room extension at the back of the existing unit. In about 2000 the subsequent owner of unit 2, Mr Peak, replaced the cladding on the outside walls of the games room extension and erected a patio area to the rear side of the unit adjacent to unit 3 that extended to the rear of the games room. Mr Peak sold unit 2 to Mr Malter in 2003.
The defendant is the strata company (also called the body corporate) for Careening Gardens. In 2005 Mr Joseph Kerford was the chairman of the strata company and Mrs Mawdesley was its secretary. Both had held their respective positions for a number of years. Mr Mawdesley and Mr Malter were the other members of the strata company because of their respective property interests at Careening Gardens.
In 2005 Mrs Malter wrote to the strata company advising it that water had flooded into the games room of unit 2. The strata company installed a larger downpipe to unit 3 in an effort to fix the problem. However by letter dated 21 May 2005 that Mrs Malter addressed to strata plan 3848 and directed to Mrs Mawdesley, the strata company was advised that unit 2 had again flooded. Mrs Malter sought confirmation that a downpipe had in fact been installed. Mrs Mawdesley provided confirmation of the installation of the downpipe to Mrs Malter on behalf of the strata company.
By further letter dated 6 September 2005 Mrs Malter wrote to Mrs Mawdesley referring to strata plan 3848 advising that the back room had again flooded and that she had engaged two independent roofers to give her advice. She requested that the body corporate ensure that each unit have its gutters cleaned and, at the very least, each unit have at least one downpipe installed at the back of the roof of each unit. Mrs Malter also advised that she had instructed agents to lodge a body corporate insurance claim because of the damage that had been caused to unit 2 as a result of the need for further downpipes. In about September 2005 Mrs Malter telephoned Mr Kerford as chair of the strata company and requested that further action be taken by the strata company in respect of the flooding to unit 2.
Mr Kerford, Mrs Mawdesley and Mr Mawdesley met on or about 16 September 2005 to discuss what could be done about the water leaking into unit 2. Mr Mawdesley does not specifically remember the details of the meeting however he is clear that there were discussions about Mrs Malter's complaint. Minutes were not taken at the meeting nor is there a formal notation of it in the strata company records.
Mrs Mawdesley remembers that at the meeting Mr Kerford asked Mr Mawdesley to get up on the roof of unit 2 and have a look. She says that Mr Kerford did not want to employ a roof plumber without knowing precisely what the problem was. Mr Mawdesley did not want to inspect the roof although he considered that the water ingress was due to a leak or leaks in the gutter and was not due to a shortage of downpipes because by this time each of the units had its own downpipe and the downpipe of unit 3 was wider than the type usually installed.
Consistent with exhibit 1.6, the registered strata plan, Mr Mawdesley confirms that all four units shared a common tiled roof with a gutter at the edge of the tiles. It is not disputed that the roof and gutter area is common property. The extension to unit 2, however, had a roof that was predominantly colour‑bond metal that was 1200 mm lower than the tiles and the gutter line. Accordingly, the shared gutter that was on the edge of the roof of the three other units went across the roof of the games room at unit 2 rather than being at the back of the building. The gutters on the other three units were still at the very back of the building and none of these units had experienced water leakage problems. Mr Mawdesley was therefore pretty sure that the leak was caused by an incomplete sealing of the flashing of the gutter over the roof of the games room of unit 2 that allowed water to enter through the Colorbond metal roof. Mr Mawdesley says that this was a view also shared by Mr Kerford who, in response to Mr Mawdesley's comment that it was a body corporate issue so therefore get a plumber, had said that it was not due to a downpipe because a number had been installed and therefore they needed to clarify the cause of the leak.
After the strata company meeting Mr Kerford asked Mr Mawdesley two or three times to inspect the roof however Mr Mawdesley was resistant. Mrs Mawdesley also repeatedly requested that her husband examine the roof.
Finally, on Sunday, 18 September 2005 Mr Mawdesley agreed to carry out the inspection. He remembers that it was an overcast day and that it had been drizzling in the morning. The roof surface was quite dry by the afternoon when he finally acceded to his wife and father‑in‑law's request. He placed a ladder against the roof of unit 1, being the unit where he resided, and then climbed onto the roof and walked over across the tiles to the roof of unit 2. The metal sheeting of the games room roof that joined onto the existing tiled roof was constructed of a beige metal sheeting. Off‑white sheeting surrounded the beige sheeting at the back of unit 2 and to the side of unit 2 nearest unit 3. Mr Mawdesley walked on the tiled roof of unit 2 and knelt down on the tiles in order to examine the gutter and flashing that was positioned along the join between the tiled roof and the metal sheeting. On two or three occasions he stepped onto the beige metal sheeting which was 1200 mm lower in order to inspect the gutter area more closely. Prior to stepping onto the metal sheeting he tested its strength by tentatively placing his weight on it to ensure that it could take his full weight. When he was satisfied that the sheeting could take his weight he stood on it and continued to examine the gutter and flashing.
Mr Mawdesley progressed along the roof of unit 2 until he had nearly reached the point where unit 2 joined with unit 3. Although the sheeting near the boundary was off‑white, he assumed it was the same metal surface that had been installed by the McAllisters and that it was therefore the same material as the beige metal sheeting that he had previously tested. At that point he looked along the gutter back towards unit 1 because he believed that the flashing along the gutter from unit 2 to unit 1 was not sound because he could see light. He assumed that this occurred because one of the gutter brackets was not in place. Mr Mawdesley stepped onto the off‑white sheeting in order to have a better view back along the gutter to unit 1, however it was at that point that he fell straight through the off‑white sheeting and landed on the paving that was 2.2 m below. Although there was some white metal sheeting on the patio roof that joined onto the beige metal sheeting of the games room roof, the sheeting he fell through was in fact polycarbonate.
As a result of the fall he fractured his 8th, 11th and 12th thoracic vertebrae and fractured his first and second lumbar vertebrae causing incomplete paraplegia below the L2 spinal cord level.
A neighbour, Mr Webster, heard the thump of Mr Mawdesley's fall and, assisted by his very competent St John's Ambulance cadet 14‑year‑old daughter Ashayla, attended the scene immediately. They made sure that Mr Mawdesley did not move. They instructed Mrs Mawdesley to call an ambulance, however the occupant of unit 2 ultimately also called an ambulance. Soon after Mr Mawdesley was taken to hospital.
In the days after the accident Mr Lloyd Kerford, Mr Mawdesley's brother‑in‑law and Dr Chew, Westralia Technical Consultants Pty Ltd attended and took photographs of the roof of unit 2 and the surrounding area (exhibits 1.1, 2.1 and exhibit 3). Although the photographs are helpful, they do not show the roof as it appeared on the afternoon when Mr Mawdesley fell because the weather conditions are different and the places where the photographs have been taken differ from the angle and height where Mr Mawdesley stood when he was on the roof prior to the fall. Further, given that the polycarbonate sheet was broken when the photographs were taken more light was able to come through to the patio area through the roof thereby potentially altering the appearance of the roof sheeting. For these reasons the photographs are of limited evidentiary weight.
The photographs do however show that the polycarbonate sheeting was visually very obvious from the patio area of unit 2 but less obvious from the roof of unit 2. Photographs taken from the position of a height roughly similar to that of Mr Mawdesley standing on the roof and taken from the direction of the tiled roof looking back over the polycarbonate and metal sheeting show that the polycarbonate and the white metal sheeting look almost identical. This is shown in photographs exhibits 3.10, 3.14, 3.16, 3.23, 3.24 and photographs in Dr Chew's report (exhibit 2, being photographs 1 and 6).
Taking into account that the weather and lighting conditions are different in these photographs (and that the broken polycarbonate would be likely to have provided more light and therefore contrast in the photographs), I accept that at the time when Mr Mawdesley was on the roof the polycarbonate and white metal sheeting would have appeared to be very similar if not identical. The danger posed by the polycarbonate sheeting was not visually apparent.
In cross‑examination Mr Mawdesley was asked about the visual distinction between the beige sheets being on the games room roof and the off‑white sheets on the patio. He says he believed that all of the roof was put up at the same time regardless of colour. Having heard the evidence of Mr Peak, the former owner of unit 2 in relation to the construction of the patio, I accept that Mr Mawdesley is mistaken in his belief that the off‑white sheets and polycarbonate sheets were put in place at the time when the games room was first erected. The patio sheets, being the off‑white metal sheets, and the polycarbonate sheets were in fact put in place by Mr Peak in 2000.
Counsel for the defendant submits that given the difference in colour between the beige sheets and the off‑white sheets Mr Mawdesley should not have assumed that the off‑white metal sheets had the same tolerance to heavy loads as the beige metal sheets.
However it is the opinion of Dr Chew, qualified engineer and certified professional ergonomist, that it was the qualities of the polycarbonate sheeting that made it more fragile than the metal sheets rather than its location. When questioned by counsel for the defendant in relation to the likely cause of the breaking of the polycarbonate sheet, Dr Chew says (ts 135 ‑ 136):
CLYNE, MR:Dr Chew, just following on from that question that my friend asked you about the likely cause of the sheet breaking away, I take it that what you said was there was insufficient mounting of the sheet, if you like, insufficient material to hold it in place?---Well, the sheet was 1.5 metres long, if I remember correctly, and it was - it was supported in mid‑span so between the mid‑span, the middle - mid‑span of the sheet and the end of the - of the beam at the back of the house, there is about a 75 centimetre span. So if there's a weight that got onto the sheet, it will introduce forces and stressors which will be acting on the point at which the sheets was attached to the beam so if - of the strength of the material is there or it's insufficient to withstand the stressors, it will give way.
So you're talking about the tack screws?---Tack screw, yes.
So that could have happened if it was a metal sheet in any event?---The - the chances of metal sheet giving way will be less than plastic sheet simply because the - my observation there was that there were three tack screw remaining on the beam. This suggests to me it's not a tack screw they've all been completely pulled out but rather it is the skylight sheeting that has given way, fractured, disintegrated or lost structure - lost structure or integrity at that point of attachment. So the chances of a metal sheet coming away is there, but it will be less than a skylight sheet.
I accept Dr Chew's evidence. There was less of a chance of a metal sheet breaking than of a polycarbonate sheet breaking. I accept that the sheet broke as a result of it being polycarbonate affixed in the manner described not as a result of it being part of the patio or because of the way in which the patio was constructed.

Mr Mawdesley's employment history and knowledge of skylights

Mr Mawdesley completed a copper wire welding apprenticeship and held employment in mining and construction from the age of 19 until the accident in 2005 when he was 59 years old. At that time of the accident he was working for Abesque Pty Ltd at Normandy Minings' Granites gold mine in the Northern Territory. In September 2005 he had held employment at this site for 4 1/2 years and worked on a fly‑in, fly‑out basis being two weeks on and one week off. Over the years he had worked his way up to the position of construction supervisor at the mine site. This job required Mr Mawdesley to perform job safety analyses on the construction and removal of structures on mine sites.
Mr Mawdesley describes the process of completing a job safety analysis as being one that required him having to write up every fact of whether there was 'a chance of anybody getting injured from … a cut finger … to a fall that would hurt somebody' (ts 19). He describes his employer as being very safety conscious. In the past he had been involved physically and at a supervisory level in moving sheds and buildings on site that had skylights however he says that those skylights were obvious because they were made from material that was different from the roof and contrasted with the roof. The skylights were also supported by chicken wire on all buildings on site.
In evidence Mr Mawdesley confirms that there are skylights in his own patio attached to his home at unit 1 but that they are made of a different substance that contrasts with the roof materials and they are clearly visible from both above the roof and from underneath when viewed from the patio. The Google Earth photograph of Careening Gardens (exhibit 6) shows that the skylights in unit 1 are made of a contrasting material whereas the skylights in unit 2 and unit 3 are less obvious.
Mr Mawdesley concedes that the skylights in unit 2 would have been clearly visible from the area underneath the patio had he looked at the roof from the patio. Mr Mawdesley was cross‑examined about the contact he had with unit 2 including his ability to see the patio roof from patio height and his prior knowledge of the skylights in the patio of unit 2. Mr Mawdesley says that when he was at home in the week between his two‑week employment commitment he would go out regularly and he was rarely in his backyard at unit 1. He was not aware from looking over the fence of unit 1 to unit 2 that the unit 2 patio had skylights. The photographs of the unit 2 patio area confirm that the skylights are closer to unit 3 than to unit 1 and, accordingly, I accept this evidence.
Mr Mawdesley was also cross‑examined in relation to the back gate of unit 2 that provides access to the rear patio area of unit 2. He asserts that he has never been through the back gate of unit 2 and that he believes it is usually locked. The back gate of unit 2 is not part of a thoroughfare and he states that he has no reason to walk past it or to enter it. Mr Mawdesley denies he was aware of the skylights in unit 2 as a result of being in Mr Kerford's back patio area in unit 3 and says he could not recall being on the patio of unit 3. If he had been there then he says it was for a brief period only. He has no recollection of seeing the skylights.
Mr and Mrs Mawdesley's evidence is that although they would visit Mrs Mawdesley's parents on a regular basis, her mother Mrs Kerford was a formal person who would set up tea cups in the kitchen rather than entertain on the back patio. The Kerfords also had a front enclosed area with a table that the Mawdesleys would sit in on occasions when they visited. Mr Mawdesley denies ever being aware of seeing the skylights in unit 2 from the backyard of unit 1 or unit 3.
Mr Peak gave evidence that when he lived next door at unit 2 he spoke to Mr and Mrs Mawdesley about his decision to put up a patio around the games room. He says they said it was okay for him to erect the patio but that they never went into detail with him about what the patio would be made of. Mr Peak said that after the patio was finished he was quite proud of it. He said (ts 231):
I was quite proud of it, and I just pointed it out to them, showed them. And they … had a look and said it looked alright but they - they weren't that interested.

Mr Peak confirmed that the Mawdesleys were in the backyard at the time of this discussion and confirmed that Mrs Mawdesley poked her head over the fence in order to have a look (ts 240). I accept that when Mr Peak spoke to the Mawdesleys about the patio they were in their backyard at unit 1 and not in the rear of unit 2.
Mr Peak says that after Mr Kerford's patio was finished he heard people having a few drinks and a barbeque in the unit 3 patio area every now and then and he believed Kevin Mawdesley and his wife were there with the Kerfords because he could hear voices. Mr Peak says that he could not see over the fence and he therefore assumed that they were present (ts 231). In cross‑examination he confirms that he did not go over to unit 3 and check or poke his head over the fence and have a sticky beak. He says 'I just go from voices' (ts 240).
Mr Peak clarified that when he and Mr Mawdesley were neighbours he did not get to know Mr Mawdesley. He would say g'day if Mr Mawdesley was home or have a chat over the fence, however he says that he used to mind his own business (ts 234).
Mr Peak stressed that he had not been a sticky beak or looked over the fence to unit 3.
I find that Mr Peak may have been mistaken in relation to the identity of the people in Mr Kerford's back patio area. Mr Peak, Mr Mawdesley and Mrs Mawdesley all give evidence that the relationship between Mr Peak and the Mawdesleys was not a close one. Mrs Mawdesley did not like his company and neither of the men sought each other out. They all minded their own business. They were not in each others houses nor in each others backyards.
I accept Mr Mawdesley's evidence that he has never been under the patio of unit 2 nor had he been in a position at the back of unit 3 that enabled him to clearly see the skylights in unit 2 from underneath the patio prior to 18 September 2005. The skylight was a hidden danger. Mr Mawdesley did not know it was on the roof and he was unable to distinguish it from the metal sheeting.

Mr Kerford

Mr Kerford died in December 2009. On 20 October 2005 he completed a statutory declaration in relation to this matter that is admitted into evidence pursuant to s 79C(2)(a) Evidence Act 1906 and is exhibit 1.7. In the statutory declaration Mr Kerford declares that he is 81 years old, suffers from moderate ill health and that he was the chairman of the body corporate of the units at the relevant time. Relevantly he declared:
3.Prior to my retirement at age 60 I was employed as a senior building supervisor in the Public Works Department of Western Australia Architectural Division and had been employed by the department for the previous 17 years as a building supervisor responsible for supervision of new construction and maintenance work on Government buildings.
4.I was a registered builder and my registration number was no. 2005.
…
16.Due to my age and infirmities I can no longer climb ladders nor safely walk over roofs and my daughter, Judith Ann Mawdesley was not capable of dealing with the matter of climbing on the roof to investigate water ingress, so Kevin William Mawdesley was asked by me if he could have a look at the problem and let me know if he could see where water could have been getting into unit 2.
17.Kevin William Mawdesley volunteered to go on the roof and have a look for me.
18.It was my intention that after the roof had been inspected and if it appeared necessary the body corporate would engage a roof plumber to come on site and carry out any remedial work or maintenance work that may have been required to stop water ingress to unit 2.
It is clear from the photographic evidence that Mr Kerford's unit, unit 3, had a patio. Mr Peak gives evidence that at the time that his patio was installed Mr Kerford was more interested in the patio construction than Mr and Mrs Mawdesley and that Mr Kerford decided to put a similar patio on the back of unit 3. Photographs of unit 2 and unit 3 show that Mr Kerford used polycarbonate sheeting in his patio construction that is very similar if not identical to the polycarbonate sheeting used by Mr Peak (photographs, exhibits 3.4, 3.5 and 3.18). The photographs also show that someone in the patio of unit 3, if on the side nearer to unit 2, would have had a clear view of the polycarbonate sheeting in the patio roof of unit 2.
Mr Kerford was a man with a forceful personality who, in light of his poor health and advanced age repeatedly requested that Mr Mawdesley inspect the roof of unit 2 on behalf of the strata company. Mr Kerford requested that Mr Mawdesley go on the roof on 16 September 2005 and repeated this request a number of times on 17 September 2005 before he left for a holiday in Kalbarri. Despite Mr Kerford being very forceful Mr Mawdesley climbed onto the roof and carried out the inspection voluntarily.
Mr Kerford had experience in construction and had an understanding of the placement of the gutter in relation to the roof of the games room of unit 2. Mr Kerford would have known that Mr Mawdesley would have to be on or very near to the polycarbonate sheeting on the patio roof of unit 2 in order to properly inspect the gutter because Mr Kerford's patio was constructed of similar materials to the patio of unit 2. He would have been aware that the patio had a skylight in a location that almost mirrored the skylight in his own patio because it is clearly visible from his patio.
Given Mr Kerford's role as chairman of a strata company, his personal knowledge of construction in building, his experience with his own patio construction and the knowledge that he must have had of the patio on unit 2 he would have been aware of the presence of the polycarbonate sheeting and aware that polycarbonate sheeting posed a risk to anyone who walked on the roof of unit 2 in order to inspect the gutter line.

Access to unit 2 – Strata Titles Act 1985

Nobody in the strata company asked the tenant at unit 2 for her permission to get onto the roof of unit 2 in order to inspect it.
Section 35 Strata Titles Act 1985 places the strata company under a duty to:
35(1)…
(b)control and manage the common property for the benefit of all the proprietors;
(c)keep in good and serviceable repair, properly maintain and, where necessary, renew and replace
(i)the common property, including the fittings, fixtures and lifts used in connection with the common property; and
(ii)any personal property vested in the strata company,
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause.
Section 39 Strata Titles Act sets out the power of a strata company to enter premises: s 39(2):
The strata company may, by its agents, enter upon any part of the parcel for the purpose of -
(a)inspecting that part of the parcel;
…
and may do so in the case of an emergency at any time or, in any other case, at any reasonable time on notice given to an occupier of that part of the parcel.
Section 3(1)(c) Strata Titles Act 1985 defines common property as the lot or lots shown on a survey - strata plan as common property. The relevant strata plan shows the whole of the roof area comprised of all four units as being common property. It is accepted that the patio area is not part of the common property. Parcel means the land comprised in a strata/survey-strata plan (s 3(1) Strata Titles Act).
There was no emergency requiring the inspection of the roof of unit 2 pursuant to s 39(2) Strata Titles Act. The strata company should have attempted to contact or communicate with the tenant in order to give the notice required by s 39 Strata Titles Act prior to Mr Mawdesley going onto the roof. No‑one in the strata company asked permission because they either thought that the tenant was away from home or they did not consider her right to be asked or advised of the inspection.
Mr Mawdesley carried out the inspection by walking from the roof of unit 1 across to the roof of unit 2 and says that that he did not see a need to go to the patio area under the unit 2 roof prior to carrying out his inspection because his intention was to inspect the roof not the patio area. It is unlikely that Mr Mawdesley would have sought access to the backyard of unit 2 or examined the back patio even if the tenant's permission had been sought and granted. Mr Mawdesley accepted his wife's advice that the tenant was not at home. Neither Mr Mawdesley nor Mrs Mawdesley had any reason to believe that the back gate would be unlocked and neither of them saw or took any notice of the tenant's car in the garage in the front of unit 2.
The tenant was home at the time of Mr Mawdesley's fall because she came out to the back patio area in response to the noise of the fall and she arranged for an ambulance to attend. She was not asked for access to her roof or to her rear patio area. There is no evidence that she would have refused access to Mr Mawdesley or to any representative of the strata company had she been asked.
It is accepted that Mr Mawdesley fell through the sheet above the patio area and therefore was not injured by falling through common property. The common property to be inspected was the gutter that was on the dividing line between the common property of the roof and the patio area. Given that the tiles of the roof sloped down and that the gutter sloped down further leading to a 1200 mm drop to the flat patio and games room roof it was foreseeable that Mr Mawdesley would have had some contact with the patio roof in the course of his inspection of the gutter. The purpose of the inspection was to assess the common property and it was almost inevitable that Mr Mawdesley would have had contact with the patio roof in the course of carrying out the gutter inspection.

Who asked Mr Mawdesley to inspect the roof - family members or the strata company?

Counsel for the defendants submits that the request for Mr Mawdesley to inspect the roof came from his father‑in‑law and from his wife. It is a situation that, counsel for the defendant submits, is analogous to that in Grimes v Grimes [2010] WADC 337. In that case a father asked his son to inspect a palm tree on the father's property. The son acceded to his father's request and fell from a ladder while carrying out the inspection of the palm tree injuring himself badly. Given the nature of the request and the relationship between the father and the son it was held in that case that the defendant father had not been negligent because the plaintiff son had voluntarily assumed the risk when choosing to carry out the dangerous task of climbing the ladder. Counsel for the defendant in this case submits that similarly in this case no duty is owed to Mr Mawdesley.
The plaintiff claims that it was the strata company that requested Mr Mawdesley to carry out the inspection regardless of the identity and personal relationship between the officer holders of the strata company and Mr Mawdesley. The defendant submits that Mrs Malter addressed her correspondence to the strata company number and that she had made requests of the strata company over a number of months in relation to the ingress of water and the strata company's obligations.
The requirement for the strata company to keep common property in good and serviceable repair is set out in s 35 Strata Titles Act:
35(1)…
(b)control and manage the common property for the benefit of all the proprietors;
(c)keep in good and serviceable repair, properly maintain and, where necessary, renew and replace
(i)the common property, including the fittings, fixtures and lifts used in connection with the common property; and
(ii)any personal property vested in the strata company,
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause.
The strata company is a legislative body that has obligations to its members and it is required to comply with those obligations. Although minutes were not recorded of the strata company meeting on 16 September 2005, I accept the evidence of Mr Kerford and Mrs Mawdesley that the meeting and the discussion took place on that date, consistent with the date of Mrs Malter's correspondence. The discussion and requests for inspection of unit 2 were consistent with the statutory obligations of the strata company pursuant to s 35 Strata Titles Act.
Mr Mawdesley did not have a personal relationship with Mr Malter or with Mrs Malter, nor did his father‑in‑law or his wife who were the chair and secretary of the strata company respectively. Mrs Malter's correspondence requesting action in respect of the roof was a request by her for the strata company to take action in relation to common property. The request was to look at unit 2, however the issue of water ingress from a shared roof with a shared gutter was an issue relevant to the maintenance of all four units. The installation of downpipes and the cleaning and repairing of gutters had already been carried out by the strata company in response to matters raised by Mrs Malter. These tasks were undertaken by the strata company. Similarly, the roof and gutter inspection was a task appropriately requested by the strata company.
Mr Mawdesley had sufficient skill to examine the roof and ascertain the problem. It was the intention of the strata company to have him carry out the inspection and to then employ a qualified roof plumber to carry out the repairs. Accordingly, the request to Mr Mawdesley was made on behalf of the strata company and not as part of a domestic relationship.

Did the strata company owe a duty of care to Mr Mawdesley and, if so, what was that duty?

The law

Section 5B of the Civil Liability Act states:
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Whether a defendant owes a duty of care depends on the particular case being considered. In Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562; (2001) 75 ALJR 1570 the plurality said [50]:
Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party [27]. Sometimes they may arise because the defendant is the repository of a statutory power or discretion [28]. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits [29]. Sometimes they may concern the need to preserve the coherence of other legal principles, or f a statutory scheme which governs certain conduct or relationships [30]. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle. In Donoghue v Stevenson, for example, Lord Buckmaster, in dissent, was concerned that, if the manufacturer in that case was liable, apart from contract or statute, to a consumer, then a person who negligently built a house might be liable, at any future time, to any person who suffered injury in consequence; a concern which later cases showed to have been far from fanciful [31]. The problem which has caused so much difficulty in relation to the extent of tortious liability in respect of negligently constructed buildings was not only foreseeable, but foreseen, in the seminal case on the law of negligence [32].
In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 when discussing the scope of the Road and Traffic Authority's duty of care Gleeson CJ said [43]:
Although the existence of duty of care owed by the RTA to Mr Dederer was not in dispute, two points must be made about the nature and extent of that obligation. First, duties of care are not owed in the abstract. Rather, they are obligations for a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.
McLure JA summarised the matters to be considered when determining whether a particular circumstance gives rise to a duty of care in Douthwaite Holdings Pty Ltd v Saliba [2006] WASCA 72. She said [51] ‑ [55]:
Reasonable forseeability of harm of the kind suffered is a necessary, although insufficient, condition for the existence of a duty of care. That requirement is satisfied if the risk of harm of the kind suffered is not far‑fetched or fanciful but real: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317.
Reasonableness is the test for the imposition of a duty of care: Tame v New South Wales (2002) 211 CLR 317 at [35] Gleeson CJ; at [109] per McHugh J; at [185] per Gummow and Kirby JJ; (at [272] per Hayne J; and at [331] per Callinan J. There has been a return to the words of Lord Atkin in Donohue v Stevenson [1932] AC 562 at 580 that a duty is only owed to those:
'… so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'
The practical content or extent of the duty is governed by the circumstances of each case: Jones v Bartlett (2000) 205 CLR 166 at [56] per Gleeson CJ; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [105] per Hayne J. …
…
If there is a duty of care wide enough to encompass the particulars of breach, it is then necessary to determine whether [the respondent's] failure to eliminate or reduce the risk of harm showed a want of reasonable care (in accordance with Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J).
The relevant passage in Wyong Shire Council v Shirt (1980) 146 CLR 40 is at (47 ‑ 48). Mason J said:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

The duty of care

Mr Kerford asked Mr Mawdesley to examine the roof and gutter on behalf of the strata company so that the strata company would be able to arrange for the problem to be repaired. The strata company believed that the problem related to ingress of water from the gutter. Given that all four units shared the gutter (although water ingress had not been a problem for the other three units), the strata company has a statutory obligation to do what it could in order to fix the problem pursuant to s 35 Strata Titles Act.
Mr Kerford was aware that there were polycarbonate sheets in close proximity to the area that Mr Mawdesley had been requested to inspect. Mr Kerford had a duty on behalf of the strata company to warn Mr Mawdesley about the presence of polycarbonate sheeting and Mr Kerford should have warned Mr Mawdesley either at the time of the original request to examine the roof or at the time of repeating the request on 16 September 2005 before Mr Kerford left for Kalbarri on 17 September 2005.
There is a degree of risk in climbing onto a roof and Mr Mawdesley had a duty to exercise reasonable care to ensure that he carried out the task safely. However the presence of the polycarbonate sheeting was a hazard that he did not foresee and that was not known to him.

The scope of the duty of care

The roof was 2.2 m above the pavement. Any investigation on a roof is dangerous and always presents a risk of injury however the presence of polycarbonate sheeting that was not obvious visibly presented a risk that Mr Mawdesley could not have foreseen. Mr Kerford knew of the presence of polycarbonate. He repeatedly requested that Mr Mawdesley inspect the roof knowing that Mr Mawdesley would have to climb up on top of the roof in an area directly next to the polycarbonate. His failure as chair of the strata company to reduce the risk to Mr Mawdesley by warning him of the presence of polycarbonate sheeting showed a want of reasonable care.
I accept that had Mr Mawdesley known that the sheeting was a skylight and not a continuation of metal sheeting then, given his knowledge of construction, it is unlikely that he would have placed his weight on to the sheet.

Is Mr Mawdesley guilty of contributory negligence

Section 4(1) Law Reform (Contributory Negligence and Tort Feasors Contribution) Act 1947 (WA) relevantly provides that in a case of contributory negligence:
The court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff.
In Gorman v Scofield [2008] WASCA 78 Buss JA succinctly summarised the matters to be considered when assessing the issue of contributory negligence:
19The learned judge's conclusion that the respondent was guilty of contributory negligence involved findings that he had failed to take reasonable care for his own safety in that his behaviour constituted a 'departure from the standard of care of the reasonable man': Pennington v Norris (1956) 96 CLR 10 , 16.
20An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. See Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65, 68.
21A finding on a question of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v MacGregor (Owners) [1943] AC 197, 201. It is well-established that such a finding, if made by a Judge, is not lightly reviewed. See Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 494.
Mr Mawdesley had worked in construction for 40 years. His job at the time of the accident included the preparation of job safety analyses in relation to the construction and removal of structures on mine sites. He describes his employer as being safety conscious and confirms that he had prepared job safety analyses for structures that contained skylights. When carrying out the analyses Mr Mawdesley was required to write up every fact relating to whether there was a chance of someone getting injured. He was aware that this was the appropriate way to assess risk before commencing a job.
Mr Murphy, who was general manager of Abesque Pty Ltd until 2004, had worked with Mr Mawdesley for 15 or 16 years. He confirms that in the early years with Abesque Pty Ltd Mr Mawdesley had a hands‑on leading hand site foreman type of role, however in later years he had changed to a lower tier management type role. Mr Mawdesley's role on‑site included pricing, monitoring safety, compiling statistics and matters of that type. Mr Murphy found Mr Mawdesley to be an exceptionally good supervisor and described him as a superintendant in the industry.
Given Mr Mawdesley's experience and level of skill I find that he was well aware of the need to assess risk and danger in relation to tasks such as getting onto a roof in order to carry out an investigation.
I find consistent with Mr Mawdesley's evidence that he would not have gone under the unit 2 patio and therefore would not have seen the distinction between the polycarbonate and the metal sheeting prior to getting onto the roof even if he had had an opportunity to do so. In cross‑examination he says (ts 93):
I didn't need to get in the backyard. My impression was it was leaking under the roof and that is what I went up to have a look at. It wasn't anything else I had - I could only go on what I was told asked to do.
He further confirms that he did not think it was necessary to inspect the back patio of unit 2 before going onto the roof when cross‑examined (ts 103).
Mr Mawdesley had expertise and standing in the field of mining construction and relocation and was skilled in the preparation of job safety analyses. He would have been aware of the general danger of being on a roof 2.2 m above pavers and he therefore should have made an assessment of the roof by looking at it from underneath the patio of unit 2 before going onto it in order to ensure that he was totally familiar with the surface upon which he was proposing to walk. Had he examined the patio from underneath the polycarbonate sheets would not have been a hidden danger and, given his knowledge of the dangers of skylights, he would not have risked standing directly on the sheet.

Causation

The strata company's negligence caused the accident because Mr Kerford on behalf of the strata company would have been well aware of the skylight at unit 2 because it was visible from his own backyard and because the structure almost mirrored his own patio. Mr Kerford's construction experience meant that he would have been aware of the danger the skylight posed to anyone who walked on the roof. Had he raised the presence of the polycarbonate sheeting with Mr Mawdesley at the time of making the strata company's request that Mr Mawdesley inspect the roof or when making subsequent requests on the day before Mr Mawdesley ventured onto the roof then Mr Mawdesley would not have been confronted with a hidden danger.
However Mr Mawdesley himself failed to follow procedures that he knew from his workplace. He failed to fully analyse the structure before getting onto the roof and this failure contributed to his fall.
I find that liability should be apportioned at one‑half to the strata company. Mr Mawdesley's failure to examine the area contributed one‑half to the accident.

Mr Mawdesley's injuries and treatment

Mr Mawdesley has very limited recollection of the circumstances of his hospitalisation after the accident. He recalls being in severe pain and being taken by ambulance to a number of hospitals before admission at Royal Perth Hospital. According to the report of Dr Watson dated 3 July 2008 (exhibit 1.2) clinically and radiologically Mr Mawdesley was found to have burst fractures of T12 and L1 vertebrae bodies with evidence of paraplegia. There was another fracture of the body of T8 and of the right transverse process of C2. He also had a fracture of the greater trochanter of the right femur. Stabilisation procedures were carried out under general anaesthetic by Dr Finch orthopaedic surgeon on 20 September 2005. A number of pedicle screws and rods were inserted. Post‑operatively Mr Mawdesley developed pneumonia. He was transferred to the spinal unit of Royal Perth Hospital on 7 November 2005 for rehabilitation and was finally discharged on 15 December 2005.
On 1 February 2007 Dr McCloskey removed the internal fixation metal from Mr Mawdesley's spine. I accept Dr Watson's summary at p 3 of his report dated 14 July 2008 (exhibit 7) as correctly stating the position:
2.13Mr Mawdesley continues to be troubled by all the realities of being an incomplete paraplegic below the level of L4 with altered sensation, muscle weakness, difficulties standing, difficulty with bowel and bladder function, decline in sexual function and what sounds like a degree of retrograde ejaculation.
2.14His medications include male hormone replacement therapy, Clonazepan (for muscle spasm in his feet), analgesics (paracetamol and Tramadol), a diuretic, Atorvastatin for his elevated cholesterol, Metformin for his diabetes and Pantoprazole for his reflux.
Mr Mawdesley is able to stand on his feet however his ankles do not rotate sufficiently for this to be comfortable and he experiences severe pain, throbbing and swelling when attempting to stand or walk. His legs are weak, particularly the right leg. His feet are likely to be very cold or very hot. As a result of his difficulties with mobility he is confined to a wheelchair for 90% of the time and he suffers severe pain and stiffness in his back and legs.
As a result of his incomplete paraplegia and related bowel, bladder and sexual dysfunction the impact on the injuries on Mr Mawdesley's life has been very significant. He enjoyed his working life and would spend two weeks out of every three away from home, however he is now at home on a daily basis and misses the stimulation of employment. He has taken up hobbies of woodwork and gardening, however he is unable to help his wife with domestic tasks such as meal preparation or dishes because of the height of the benches in the home.
Although he has developed some independent skills, he remains dependent on his wife to set up the shower and for food preparation, cleaning, and laundry. Prior to the accident he enjoyed riding his bicycle to the nearby beach, playing golf, fishing and swimming. He is now able to go to the local beach using a motorised gopher cart and is able to fish but he does not have the freedom and mobility that he once enjoyed.
Mr Mawdesley was actively involved with his grandchildren and would play football and cricket with them. He can no longer physically play with them and feels isolated from them as a result.
His social life has been restricted because he feels embarrassed and frustrated as a result of his bowel and bladder problems. Prior to the accident the Mawdesleys were socially active, however they rarely visit friends now because of Mr Mawdesley's difficulties in going up stairs and in fitting in regular sized toilets given the size of his wheelchair. His bowel problems mean that he can, on occasion, be severely constipated but then on other occasions experience loose bowels and this causes him distress if he is out in public.
Mr Mawdesley is also embarrassed and disappointed about his sexual dysfunction and although this has improved through treatment with Dr Cherry, he still is unable to achieve the sexual functioning that he had prior to the accident. He has difficulty sleeping and suffers anxiety and frustration.
Mrs Mawdesley is now required to assist her husband physically and emotionally. She carries out the domestic tasks of setting up the shower, assisting with toileting when required, cleaning, cooking and dealing with laundry. She further assists by massaging her husband's feet when he suffers pain or when he experiences extremes of temperature. Mrs Mawdesley was initially required to move her husband's 19 kg to 20 kg wheelchair in and out of a motor vehicle and in and out of the home. She found this to be a very difficult process and injured her back while lifting the wheelchair. The Mawdesleys now have a motor vehicle that is better suited to the wheelchair and Mr Mawdesley has successfully obtained a motor driver's licence that takes into account his level of disability.
The couple used to enjoy going out to dinner and dancing. This is no longer a possibility. Mrs Mawdesley's social life has also been reduced because her husband is uncomfortable about socialising with friends. The couple had planned to be 'grey nomads' in retirement and to travel in a caravan around Australia. This would now be very difficult, if not impossible, in light of Mr Mawdesley's disabilities.
Mrs Mawdesley has provided and continues to provide the majority of domestic services. Mr Mawdesley is now able to care for himself, to drive and to take up some hobbies. The assistance he requires is significantly less than the assistance he required in the first three or four years after the accident.
Mr Mawdesley has smoked on average 20 cigarettes a day since the age of 15. He says that he smokes an occasional cigarette at present and that he gave up smoking for a period of two years. His assessment of his smoking history is 'I only ever smoked a packet of cigarettes a day which is about 20 cigarettes which is not really a heavy smoker. A heavy smoker's a - smoke 40 or 60' (ts 115).

Life expectancy

Professor Gabbay, a respiratory physician with 16 years' experience, assessed Mr Mawdesley's life expectancy. I accept that Professor Gabbay has expertise in measuring life expectancy given that the assessment process is part of the lung transplant procedure which is an area in which his expertise is not questioned.
Professor Gabbay carried out a comprehensive lung function test on Mr Mawdesley by measuring three specific aspects of lung function. The three measurements were:
1.Spirometry which is the measurement of airway function;
2.Lung volume assessment that measures the volume of the lungs; and
3.The transfer factor that tests by way of mathematical calculation the lungs' ability to transfer oxygen from the airways into the blood and to transfer carbon dioxide from the blood into the airways.
Professor Gabbay diagnosed Mr Mawdesley as suffering from chronic obstructive pulmonary disease (COPD). This is a long‑term lung disease relating to a problem of obstruction of the airways. Lung function testing is critically important in confirming the diagnosis and in giving an indication of severity of illness and determining a prognosis.
Professor Gabbay states that smoking accounts for COPD in 99% of his patients with the condition. Mr Mawdesley has smoked since the age of 15 and now, having developed COPD, would still have the disease even if he was to stop smoking. However, Professor Gabbay confirms that continual smoking worsens the prognosis.
Mr Mawdesley's oxygen saturation was measured by Professor Gabbay at 92%. The normal oxygen saturation is 97% to 99%. The assessment is not lineal. Accordingly, 92% is at the more severe end of the spectrum.
Professor Gabbay also confirms that Mr Mawdesley suffers from hyperinflation. This means that he wheezes. Wheezing reflects obstruction in the airways. Professor Gabbay notes also that there has been some collapse in Mr Mawdesley's airways.
Professor Gabbay assessed Mr Mawdesley's post‑bronchodilator forced expiratory volume (FEV) for the period of one second. Professor Gabbay states that the post‑bronchodilator FEV is the best indicator of life expectancy for Mr Mawdesley. He found Mr Mawdesley's FEV to be 61% and, from the tests, applied research and findings, concluded that Mr Mawdesley has a life expectancy of between 10 years to 14 years. In determining life expectancy Professor Gabbay factored in that in the future when Mr Mawdesley's oxygen saturation drops to about 89% he will require oxygen therapy for 12 hours to 14 hours per day. Professor Gabbay calculated life expectancy factoring in that Mr Mawdesley would comply with the oxygen therapy because it would markedly affect his chance of survival. Professor Gabbay also factored in that it was likely that Mr Mawdesley would stop smoking altogether once his oxygen saturation dropped to 89%.
Taking into account all of the factors assessed Professor Gabbay calculated Mr Mawdesley's median life expectancy at 11 years.
Annexed to Professor Gabbay's report dated 10 November 2011 at Appendix 1 are copies of learned articles supporting the testing and prognosis made by Professor Gabbay. In cross‑examination he confirms that although the articles are relatively old (being dated 1989, 1991 and 1995) they still apply to a current assessment of life expectancy. He also confirms in cross‑examination that although the articles relate to testing in Europe the results are relevant to the Australian experience because changes to life expectancy are more likely to arise if socioeconomic circumstances are different rather than being affected by climatic variations have little impact on the relevant data. Accordingly, Professor Gabbay asserts that the data from Europe and the USA is relevant to the Australian Caucasian population.
I accept Professor Gabbay's expertise, calculations and assessment of Mr Mawdesley's life expectancy. The median life expectancy of 11 years being until the age of 76, applies to Mr Mawdesley.

Loss of earning capacity

Mr Murphy, who is the former general manager of Abseque Pty Ltd, states that a person with a disability requiring him to be in a wheelchair would be precluded from working on the mine site. Mr Murphy also says that Mr Mawdesley's role in middle management on the mine site did not provide him with skills that would make him suitable for office work in the city and that therefore Mr Mawdesley could not work in the head office because he does not have the appropriate skills.. I accept that Mr Mawdesley is most unlikely to obtain employment in a paid position in the future.
Mr Mawdesley says that had he not had the accident he would probably have retired at the age of 65. He says that he wanted to be a 'grey nomad'. At ts 56:
Then I might work six months of the year … I might not work at all if I didn't need to I - I probably wouldn't have, you know if I had enough money at 65. I would have retired.
Mr Murphy confirms that some people who are employed on mine sites work beyond the age of 65 years.
However I find that that was not likely in Mr Mawdesley's case. Dr Flahive, consultant occupational physician, who prepared three reports in relation to Mr Mawdesley (26 August 2010 (exhibit 13.1), 16 February 2012 (exhibit 13.2) and 30 March 2012 (exhibit 13.3)) assessed Mr Mawdesley's work capacity and calculated that it was likely he would have retired from his employment as a construction supervisor at the age of 65. Dr Flahive applied Professor Gabbay's assessment of life expectancy for Mr Mawdesley to other findings he made in relation to the type of work Mr Mawdesley performed and his history and general health status in order to make the assessment. Dr Flahive considers that working on‑site at the mine location in the Tanami Desert would affect Mr Mawdesley's respiratory condition adversely because he would be required to work in extreme heat.

Heat increases the body's cardiac output by 15% to 20% because the body must work to get rid of excessive heat. He notes that although Mr Mawdesley may not have been working 'on the tools' he would be required to work a 12‑hour day. The work requires the worker to fly and to carry bags and once on site requires the worker to walk from one location to another on the mine site, climb stairs and drive significant distances from one location to another.
Mr Mawdesley did not initially advise Dr Flahive of any symptoms related to COPD, however in 2012 Mr Mawdesley spoke of a cough and of becoming breathless when pushing his wheelchair up an inclined ramp. Dr Flahive assesses that the symptoms of coughing and breathlessness experienced by Mr Mawdesley were consistent with COPD rather than being consistent solely with the ageing process.
I accept, based on Mr Mawdesley's evidence and on Dr Flahive's assessment, that Mr Mawdesley would have retired from his employment at the age of 65.

Assessment of damages

Loss of amenities - non pecuniary loss

Section 10A Civil Liability Act states:
1.In determining damages for non‑pecuniary loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.
2.For that purpose the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non‑pecuniary loss in those earlier decisions.
3.This section does not alter the rules for the determination of other damages.
In MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 Pullin JA at [115] ‑ [126] set out the reasons why s 10A CLA needs to be considered in relation to the assessment of non‑pecuniary loss. Further, he said [128]:
General damages are ordinarily awarded to compensate for pain and suffering and other non-pecuniary loss: Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491, 507. Minds may differ about the appropriate level of damages to be awarded in a particular case, but, in order to treat plaintiffs fairly, like cases must be treated alike: Faulkner v Keffalinos (1971) 45 ALJR 80, 82; James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729, 732. The age of the injured person will be relevant because if the pain and suffering or loss of amenities will be borne for a relatively short time, then the award will be less than the award for a person who has to bear the pain and suffering and loss of amenities over a longer period of time. The existence of a tariff involving a range of sums for different injuries has been recognised in England (Wright v British Railways Board (1983) 2 AC 773), but in Australia this approach was, until statutory intervention, forbidden as a result of the High Court's decision in Planet Fisheries Pty Ltd v La Rosa.
I have considered the following decisions of this court: Still v Bowler [2000] WADC 165, complete paraplegic below T3 level, 24 years old $186,150; Morrell v Sestich [2003] WADC 225, significant spinal injury, 28‑year‑old $87,150; Mills v Richards [2002] WADC 57, fracture of thoracic spine resulting in paraplegia, 26‑year‑old (agreed) $200,000.
Mr Mawdesley was 59 years old at the time of the accident. His life expectancy is to the age of 76. The majority of the decisions that I have referred to relate to significantly younger plaintiffs, however the decisions themselves are relatively old.
Taking into account the assessments that I have made in relation to the loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily harm I award the sum of $180,000.

Loss of earning capacity

Mr Mawdesley was employed as a construction supervisor with Abseque Engineering and Construction Ltd. I accept that from 18 September 2005, the date of the accident, he would have continued to earn income including CPI increases until 18 September 2011, the date upon which he turned 65. The plaintiff would have earned including CPI increases of $508,397.90 calculated as follows:
18 September 2005 - 30 June 2006
41 weeks at $1,582 = $64,862.00
Year ending 30 June 2007
52 weeks at ($1,582 plus CPI increase 157.5) $1,614.80 =
$83,969.60
Year ending 30 June 2008
52 weeks at ($1,582 plus CPI increase 164.6) $1,687.59 =
$87,754.68
Year ending 30 June 2009
52 weeks at ($1,582 plus CPI increase 167.00) $1,712.20 =
$89,034.40
Year ending 30 June 2010
52 weeks at ($1,582 plus CPI increase 172.1) $1,754.49 =
$91,233.40
Year ending 30 June 2011
52 weeks at ($1,582 plus CPI increase 178.4) $1,760.40 =
$91,540.80

Total $508,394.88

Loss of superannuation

$719,750 x 9% = $64,777.50 - 15%, administration: $55,058.

Special damages

Special damages are agreed at $20,640.

Past gratuitous services

Mrs Mawdesley visited Mr Mawdesley in hospital and assisted him with rehabilitation by taking him to appointments and helping with physiotherapy. I accept that she provided significant physical assistance to him on a daily basis during the period of his hospitalisation from 19 September 2005 until December 2005.
After discharge Mrs Mawdesley was required to physically lift Mr Mawdesley's wheelchair into and out of the car, drive Mr Mawdesley to all appointments, assist him with toileting, showering and dressing and run errands for him. Prior to his second operation in February 2007 when Mr McCloskey removed the internal fixation metal from his spine Mrs Mawdesley was required to carry out any tasks that required reaching such as turning lights on and off because Mr Mawdesley could not extend his back and his arms fully. Following surgery in 2007 Mr Mawdesley required significant assistance for a period of approximately 10 months. He was then able to become more independent. More recently Mr Mawdesley has been able to drive, dress himself, attend to most of his toileting and showering needs (apart from having the shower set up) and perform small tasks in the garden. The services provided by Mrs Mawdesley from 19 September 2005 until March 2009 are assessed at being four hours per day x 7 days x 3.5 x 52 x 23 = $117,208.
Mrs Mawdesley has received a Commonwealth Centrelink payment being the carer payment since March 2010 for the services that she provides to Mr Mawdesley. At present the payment is a sum of $191.75 per week.
It is conceded that the payment to Mrs Mawdesley is made to compensate her for the services that she provides to Mr Mawdesley. It is unclear whether the Commonwealth payment is refundable. Counsel for the defendant submits that, consistent with Marinko v Masri [1999] NSWCA 364, the fact that Mrs Mawdesley receives the carer's payment should preclude an award for past or future gratuitous care because the carer's payment should be deducted from an award for economic loss.
In the case of Marinko v Masri the wife had suffered severe and permanent damage. The husband suffered nervous shock, grief and depression as a result of his wife's accident. The husband claimed for his nervous shock, grief and depression and for past and future economic loss, however he also claimed payment from the NSW Protective Commissioner for the gratuitous care he provided. It was argued that the husband was effectively 'double dipping'. The failure to deduct the carer's benefit paid to the husband and the weekly maintenance benefit paid by the NSW Protective Commissioner for the family was held by the Appeal Court to be in error.
Although in this case the claim relates solely to Mr Mawdesley, Mrs Mawdesley has been compensated for the services that she had provided since March 2009 and from 2009 the services required by Mr Mawdesley have been reduced because of his increased independence and mobility. The onus is on the plaintiff to prove that the sum claimed for the services provided by Ms Mawdesley is payable after 2009. There is no evidence led that Mrs Mawdesley will stop receiving the carer's payment in the future nor is any evidence led in relation to whether the payment is refundable.
The approach to be taken in relation to a payment of this type is unclear. Luntz (4^th ed) Assessment of Damages for Personal Injury and Death 8.1.2 ‑ 8.1.5 sets out a number of approaches that may be taken. However given the limited evidence led on behalf of the plaintiff I do not consider that any additional allowance for past gratuitous services should be made from March 2009 until the date of this judgment given the reduced services required by Mr Mawdesley and the Centrelink payment received by Mrs Mawdesley.

Interest on past loss and expenditure

Interest on past economic loss $508,395 x 3% x 6.7 years = $111,403
Interest on past superannuation $38,892 x 3% x 6.7 years = $8,522
Interest on past gratuitous services $117,208 x 3% x 6.7 years = $25,683

Future needs

Future medical expenses

Costs of $60 per week for 11 years ($423.80) are agreed at $25,428
Medication at $10 x 423.80 is agreed at $4,238

Aids and appliances

Annexure B sets out aids and appliances required in the sum of $66,652.80. I allow this sum.

Future care and gratuitous services

Ms Cunningham, of Independent Occupational Therapy Services, in her report dated June 2011 (exhibit 10) assessed that Mr Mawdesley will require regular assistance to undertake cleaning, ablutions, household tasks, gardening and maintenance work that he would normally have done himself. Her estimate is that he will require 10 hours per week of domestic assistance at $45 per hour. She assessed that he will require 3.5 hours per week of care aid supervision at $50 per hour. She assessed that he will require three hours per quarter of assistance for infrequent domestic tasks at a cost of $45 per hour and four hours per quarter of home maintenance at a cost of $60 per hour. Three hours per quarter of gardening assistance was also considered appropriate. Her assessment of the total weekly costs for assistance is $635.10. The future care expenses claimed (applying a multiplier of 499.4) are in the sum of $317,168.94.
Counsel for the defendant submits that no allowance should be made for future care and gratuitous services given that Mrs Mawdesley is receiving the carer payment and because she is in a position to continue to provide services for her husband. Further, Mr Mawdesley's position is such that he is more independent than was reflected by the assessment of June 2011 (the first assessment being made in October 2008) and that he does not require the services set out in Ms Cunningham's assessment.
Although Mr Mawdesley's need for care will increase in the future, his wife will, I find, endeavour to assist him as best she can. I am however mindful that she too is ageing. By the time Mr Mawdesley is 72 Mrs Mawdesley will be nearly 73 years old. I consider that Mrs Mawdesley will continue to provide domestic assistance as best she can, however Mr Mawdesley is likely to require more care than she is able to provide in the future given her age.
Mrs Cunningham has assessed Mr Mawdesley's care needs as follows:
1.Domestic assistance of 10 hours per week. Includes assistance for cleaning, meal preparation, laundry and shopping. I accept that seven hours per week will be required.
2.Domestic assistance of three hours per quarter to assist with infrequent tasks such as cleaning and fridge/freezer, window cleaning and tidying cupboards. I accept that this service will be required.
3.Showering supervision of one hour every second day Mr Mawdesley only requires his wife to set up the shower. I do not consider that any additional sum over and above domestic assistance is required for showering supervision.
4.Home maintenance assistance of four hours per quarter. This includes tasks such as changing light bulbs, mending broken sprinklers, sweeping outdoor areas and cleaning gutters. The majority of the tasks referred to are carried out by the strata company (mending broken sprinklers, cleaning gutters, dealing with outdoor areas). I consider a sum of two hours per quarter to be appropriate.
5.Gardening assistance for three hours per quarter. This includes tasks such as pruning, weeding and general heavy gardening maintenance. Mr Mawdesley enjoys potting plants and dealing with the small area of garden at the rear of the unit. The rest of the garden is property that is cared for by the strata company. I do not consider that an allowance is required.
Accordingly, I allow seven hours domestic assistance at an hourly rate of $45 being $315 per week or $16,380 per year. I allow two hours of personal care assistance per week at an hourly rate of $50 per hour being a weekly cost of $100. This is a sum of $5,200 per year. I allow a once‑off home maintenance of two hours per quarter being $60 per hour at a cost of $120 per quarter. This is $480 per year. The total yearly cost is 52 x $415 per week x 499.4 being $207,340.

Aids and appliances

The sums set out in Annexure B of $66,652.80 are agreed. I make no deduction from this sum.

Architectural modifications

I accept the contents of the report of Mr Dubczuk, architect, dated June 2011 (exhibit 4) in relation to the modifications that the Mawdesleys require to unit 1 in order to enable Mr Mawdesley to remain at home and be cared for appropriately. Counsel for the defendant submits that a carer's room would not be required. Although Mrs Mawdesley may not be able to care for her husband in the future, I do not accept that a carer would be required to stay over night. The cost of a carer's room is deducted from the sum for architectural modifications. I allow the sum of $80,000 for architectural modifications.

Summary

1.Loss of amenities   $180,000
2.Loss of earning capacity
Past economic loss    $508,398
3.Loss of superannuation
Past superannuation      $55,058

4.Special damages   $20,640
5.Past gratuitous services   $117,208
6.Interest
Interest on past economic loss    $111,403
Interest on past superannuation        $8,522
Interest on past gratuitous services      $25,683

7.Future needs
Medications/doctors and therapists      $29,666
Care and gratuitous services    $207,340
Aids and appliances     $66,653
Architectural modifications      $80,000

Total$1,410,571
Less 50% contributory negligence $705,285.50

ANNEXURE B