McCready v City of Geraldton - [2004] WADC 106

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McCREADY -v- CITY OF GERALDTON [2004] WADC 106

CORAM: NISBET DCJ

HEARD: 22-24 MARCH 2004

DELIVERED : 28 MAY 2004

FILE NO/S: CIV 2534 of 2003

BETWEEN: JOSEPH McCREADY
Plaintiff
AND
CITY OF GERALDTON
Defendant

Catchwords:

Tort - Negligence - Occupiers' liability - Occupiers' Liability Act 1985 - Fall from bandstand - Allegation of inadequate lighting - Damages - Assessment - Effect of death of plaintiff after trial and before judgment - Law Reform (Miscellaneous Provisions) Act 1941

Legislation:

Occupiers' Liability Act 1985

Law Reform (Miscellaneous Provisions) Act 1941

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr G R Hancy
Defendant: Mr J Eller

Solicitors:

Plaintiff: Michael Paterson & Associates
Defendant: John Eller

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

Nil

Case(s) also cited:

Agar v Hyde (2000) 201 CLR 552
Apex Holiday Centre (Inc) v Lynn [2004] WASCA 35
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 69 ALR 615
Broadhurst v Millman [1976] VR 208
Brodie v Singleton Shire Council (2001) 206 CLR 512
Bus v Sydney County Council (1989) 167 CLR 78
Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Donoghue v Stevenson [1932] AC 562
Edith Cowan University v Czatryko [2002] WASCA 334
Francis & Ors v Lewis [2003] NSWCA 152
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Maiward v Doyle [1983] WAR 210
Newman v Nugent (1992) 12 WAR 119
Parsons v Randwick Municipal Council [2003] NSWCA 171
Pennington v Norris (1956) 96 CLR 10
Perre v Apand Pty Ltd (1999) 198 CLR 180
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43
Roads and Traffic Authority of NSW v Jackson [2003] NSWCA 40
Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208
Salt v City of Melville [2001] WADC 51
Smith v McIntyre [1958] Tas SR 36
Stapley v Gypsum Mines Ltd [1953] AC 663
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Sydney County Council v Dell'Oro (1974) 132 CLR 97
Tomlinson v Congleton Borough Council [2003] UKHL 47
Van de Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Van Gervan v Fenton (1992) 175 CLR 327
Waverley Municipal Council v Swain (2003) A Tort Rep 81694
Webb v South Australia (1982) 56 ALJR 912
Western Australia v Watson [1990] WAR 248
Woods v MultiSport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40
Westralian Caterers Ltd v Eastmet Ltd (1992) 8 WAR 139

NISBET DCJ: The trial of this action was expedited with orders being made that the evidence of the plaintiff and his witnesses be taken by video‑link from Geraldton where he ordinarily resided. This was because at the time the matter was listed the plaintiff was not enjoying good health and whilst when he gave his evidence he seemed in reasonable health and spirits, unfortunately he died on 5 April 2004.

Pleadings

The plaintiff pleads a cause of action in negligence against the defendant as the owner/operator and occupier of the Queens Park Theatre in Geraldton. There is no pleaded claim for breach of statutory duty arising out of the Occupiers' Liability Act 1985. The plaintiff pleads that on 30 November 2002 he was playing at a concert at the Queens Park Theatre as a member of the Geraldton City Band. He was playing the cornet from a seated position on the lower riser of a two‑riser playing platform which he pleaded had been erected on the stage by the defendant's employees. His statement of claim goes on to say that at about 11.00 pm the band's performance ended and band members began filing off the risers to the left and right and that as the plaintiff got to the edge of the lower riser and was moving to step off that riser, an employee of the defendant switched off the floodlights to the stage area thereby reducing visibility to effective darkness which caused the plaintiff to miss his footing at the edge of the "middle riser" and fall over the edge onto the stage below. The plaintiff claimed that the edge of the lower riser had not been marked distinctly and that there were no steps or handrail for use by persons stepping down from it. He said the combination of the poorly lit stage, unmarked riser edges and absence of handrail and steps from the riser constituted a danger to him and other band members. The plaintiff then claimed that the defendant breached its duty of care to him in that it failed to provide a well lit stage area, failed to provide a handrail and steps to enable him to safely step down from the risers, and failed to ensure that all riser edges were properly marked with luminescent white or other contrasting strips to highlight them. He then pleaded that the defendant was negligent in turning the floodlights off and casting the stage into effective darkness when band members were still leaving the playing platform. In consequence of the alleged negligence of the defendant the plaintiff says that when he fell off the riser he sustained injuries, namely, a fracture to the neck of his left upper femur, bruising, cuts and abrasions and shingles.
In its defence the defendant admitted that it was the owner/operator and occupier of the Queens Park Theatre, Geraldton and that on 30 November 2002 the plaintiff was playing at a concert at that venue as a member of the Geraldton City Band. The defendant also admitted that a two‑riser playing platform had been erected on the stage but denied that it had been erected by its employees. It further denied that the edge of the risers were not distinctly marked and that there were no steps or handrails for use by people stepping down from the riser. The defendant then averred that there were 12 spotlights on the stage and they were dimmed as the band members exited but says that they were not switched off as alleged by the plaintiff. The defendant denied that the plaintiff sustained the injuries he claimed and then pleaded contributory negligence saying that the plaintiff failed to pay any or any proper attention to where he was walking immediately before his fall and failed to exercise a degree of care for his own safety.

The evidence

The plaintiff testified that contrary to his pleading there had in fact been a three‑tier playing platform erected on the stage because it needed to accommodate 120 band members from three different bands coming together for the finale of the event which is apparently known as the Geraldton Band Spectacular. He said that he was playing the cornet in the middle tier which he said was about 60 centimetres off the ground. Along with other band members he was seated on a chair and each had music stands so that when the time came to get off the stage he had to walk to the edge and climb down from the riser to the stage. The stage and risers were lit with floodlights but he said there were no strips or other markings on the edge of the tier that he was on and he did not recall there being any strips or other markings anywhere else. This, he said, made it very difficult for him to determine where the edge of the tier was even with the floodlights on. Anyway, at the end of evening's performance, after the playing of the massed bands, the plaintiff said that he collected his music and held it in one hand and with his cornet in the other he proceeded to exit stage right which is the left of the stage as seen by the audience. He said there wasn't much room to move so he started to move along sideways slowly and carefully to the edge of the middle tier and when he was nearing the edge of the middle tier he said the theatre staff turned off the floodlights that had been on during the performance and whilst some concealed lighting in the roof remained on, after the brightness of the floodlights the effect was the same as if it was totally dark. Immediately after the lights going out the plaintiff said he felt himself falling from the middle tier to the stage floor and landing on his left side. He could not break his fall because he had his music in one hand and his instrument in the other. He estimated that the floodlights had been turned off within three minutes of the end of the performance. Thereafter the plaintiff was taken by ambulance to St John of God Hospital in Geraldton where there were some x‑rays taken and then he was flown by the Royal Flying Doctor Service to St John of God Hospital in Perth where he was operated on on the morning of the day after the concert.
In cross‑examination the plaintiff said that his statement that the tier upon which he had been seated and from which he ultimately fell was 60 centimetres high was really just a guess. He did not take exception to a statement that it was 48 centimetres high. The plaintiff denied however that he was holding onto a chair or reaching out to hold onto a chair when he fell. The plaintiff further testified in cross‑examination that he had played in the Geraldton Band Spectacular on about eight or nine previous occasions and that there was nothing different on the occasion in question from any of the previous occasions save for "the end part". The plaintiff said that normally he had been able to get off the stage with the lights still on but on this occasion the lights were dimmed.
Brian Jackson gave evidence that he too was a member of the Geraldton City Band and was playing in the Geraldton Band Spectacular on 30 November 2002, an event he had played in on six or seven prior occasions. He said that the stage was set up the same way each year with a three‑tier playing platform. As I understood his evidence the first tier was one step high and the second tier two steps high. He thought the edges of the tiers were marked with edging strips along the front but not at the sides. He said that he was sitting next to the plaintiff and when they had finished their final piece he suggested to the plaintiff that they both move off to their right. However he ended up going to the left and Mr McCready went to the right. He said there was a long row of players and he had to wait for a minute for them to file off when just as he stepped down from the second tier the floodlights immediately above him were turned off and he heard a crash. He said that although it was hard to see he knew where he was going and since he was practically off the stage he just kept going.
In cross‑examination Mr Jackson said that after the floodlights were turned off it was very dark and compared with previous years he thought there had been more lighting as he left the stage on previous occasions. And asked if he had ever had any difficulty with the lights and getting off the stage on any prior occasion he answered:
"Not in the past, no, but as I have stated in my statement around I think from about [paragraph] 24 to 27 I found it very difficult this year but having looked at the situation before and probably being at a younger age so my eyesight is better and things, I didn't have a real problem but it was dangerous and I was further down the steps than what Joe had been, I would imagine."
David Neil White was also on the stage of the Queens Park Theatre on the night of 30 November 2002. He was seated on the lower riser and at the end of the event he moved off the stage in the opposite direction to the plaintiff. He said that after he got down from the riser and started walking off the stage the lights went off. He thought this was about two minutes after the end of the concert and he said that after the lights had gone out he was walking into semi‑darkness "… It took a few seconds, 10, 20 seconds for my eyes to adjust to the darkness."
He further testified that when he played in the band spectacular the following year he noticed that all of the risers had new white edging strips on them and that the lights stayed on after the concert, meaning, I think, in contrast to the previous year, 2002.
In cross‑examination Mr White agreed that whilst the spotlights may have been turned off some concealed lighting in the roof remained on, saying:
"Yes, it was dark but as I said I was going in the opposite direction so there was more reflective light I guess coming back towards me. There was some light, yes."
Asked about the time sequence between the lights going off and hearing the plaintiff fall Mr White said:
"I couldn't say quite honestly, I was the other direction and I would be fairly confident in saying I was actually off the risers by the time I had heard – well, I knew I was off by the time I heard anyone fall. So I would say it would be within that few minutes."
Mr White too confirmed that there was nothing really different about the set‑up of the Geraldton Band Spectacular on the night in question from any of the previous occasions when it had been held.
Ms Bieuwkje Joanne Sorensen is the band master of the Geraldton City Band and occupied that position on 30 November 2002 when the band played in the band spectacular at the Queens Park Theatre. She confirmed that a three‑tier playing platform had been erected on‑stage for the performance and said that the risers were of a height that they could be stepped off from. She thought that there were no white markings on the edge of the risers or on the steps leading to the risers. Ms Sorensen further testified that at the end of the concert the floodlights were still on when she went backstage and whilst obviously she was backstage when the plaintiff fell she testified that she believed that the floodlights were turned off prematurely. She heard of the plaintiff's accident and returned to the stage area to see what she could do to help and when she did she recalled it being "quite dark". She believed the lights had not been turned back on after the plaintiff's fall. However, in cross‑examination it became clear that her belief as to the floodlights having been turned off prematurely and not having been turned back on when she returned to see what had happened having learned of the plaintiff's fall, were all hearsay based on what she had been told by others.
She did give evidence however of direct observation in relation to the procedure taken at the Geraldton Band Spectacular the following year, 2003. She said she noticed that there were "white strips everywhere in 2003" and she said that she specifically asked the stage management people if they could leave the stage lights on at least until the stage had cleared. Otherwise she said that the stage set‑up and the event was conducted on much the same basis in 2002 as it had been on previous occasions.
Trina Robyn Faint gave evidence that she played in a concert at the Queens Park Theatre on 30 November 2002 as a member of the Geraldton Grammar School Ensemble. She said that she was playing on the second riser and the plaintiff was playing on the first. This was an assumption because she did not know the plaintiff and did not meet him until she was subpoenaed to give evidence in the trial. However it seems tolerably clear that a person who she now knows as the plaintiff she noticed moving past her at the end of the performance. She recalled seeing the plaintiff moving slowly and carefully towards the edge of the tier he was on. He had his instrument in one hand but Ms Faint was unsure as to whether he had his music in the same hand as his instrument or his other hand. She then said:
"He was not moving off sprightly. He was moving slowly finding his way past the music stands and chairs. Facing the stage from the audience he was moving to the left. He was making his way to the edge of the riser. He was getting ready to get down and was reaching out to hold onto a chair. As he was about to get down the lights went off and immediately after the plaintiff fell off the edge. I did not see him fall over the edge. The change of lighting caused everything to go black and it took a few seconds for my eyes to adjust to the darkness. I just heard the crash and hurried around to help. I was about two to three metres away from the plaintiff when he fell."
As Ms Faint said that when the band spectacular was held the following year in 2003:
"All the risers had new white edging strips. The lighting during the performance was similar to last year in that it was subdued during the concert with spotlighting to enable the players to see the music to play. I did notice that at the end of the concert the lights were left on and that there was no blackout. In fact I also noted that the lights were left on at the end of the concert even after all the band members had left the stage. I'm not sure who was responsible for the lighting at last year's concert but I did notice that this year there had been a change of staff at the theatre."
In cross‑examination Ms Faint said that the stage lighting was provided by spotlights in the ceiling and these were the lights that enabled the musicians to read their music and when asked which were the lights that she was saying that went off she said it was those same spotlights that went off but at the same time the auditorium lights were on. Asked whether the plaintiff's terminology calling the spotlights "floodlights" meant that there may have been some confusion about which lights were on and which were off Ms Faint said that as far as she was concerned they were one and the same "… the floodlights being from the ceiling what I would have called the spotlights from the ceiling."
Ms Faint was then asked what it was that drew her attention to the plaintiff when she testified that she had seen him reaching out to hold onto a chair and she said: "Because he was an elderly gentleman and he had ‑ well, he looked like he was frail and I was just looking to see if he might need some assistance getting down off the riser." Ms Faint confirmed that she was only about two metres away from the plaintiff. She had a clear vision of him and that as far as she was concerned he was reaching out to hold onto the chair.
The final witness called on behalf of the plaintiff was Ms Sheila Cairns. Ms Cairns is a flugelhorn player with the Geraldton City Band for whom she had played for some 20 years or so and obviously was well acquainted with the plaintiff. She said that there was a two‑tier playing platform on the stage and she was seated on the same riser as the plaintiff. She couldn't remember whether or not there was any white edging tape on the edge of the riser that they were on but said that great attention was drawn to the fact that it was there the following year when she played in the same event. Ms Cairns said that at the end of the concert the stage lights remained on. She picked up her instrument and sheet music and stepped down from the riser and walked around to the back of the stage. This took her one or two minutes and it was at this stage she said the lights were turned off. She said it was dark. Her vision was really bad after the lights were turned off and she couldn't see, obliging her to grab someone or the curtain to find her footing before moving forward. She said it took some 10 to 20 seconds for her eyes to adjust to the different light.
In cross‑examination Ms Cairns was asked whether any other lighting remained on after what she called the stage lights had been turned off and she said that she was off the risers and pretty much at the back of the stage when it went dark and hence, being at the back of the stage she would not have noticed whether any lights were left on.
The defendant called two witnesses, Kimberley James Gibson and Jason Thomas Bone. Mr Gibson was at all relevant times the technical manager of the theatre. He was an impressive witness. He denied any change in the lighting procedure for the concert in 2002 compared with the concert in 2003. He said it was the same then and on the previous occasions that he had worked at the Geraldton Band Spectacular and he said it would be the same again this year. He said that after the final piece the houselights were turned on as well as the stage lights set near the ceiling. After these lights had been switched on the main show lights were turned off by dimming them slowly over a 10 to 15 second period. In explaining this further he said there were five banks of show lights each of 14,000 watts and being one bank of white lights and four banks of coloured lights. When these lights are turned off it is always done by fading them down slowly over a 10 to 15 second period so as to avoid damaging the globes.

As to the house lights which were turned on before the dimming of the main show lights, these are the working lights for the stage. They consist of fluorescent lights at each side and over the stage in the ceiling and four 150 watt floodlights. In addition, the lights in the main auditorium were on because the audience is meant to be leaving as the bands play their final tune and the main auditorium lights were switched on to enable the audience to leave safely.
Endeavouring to give the court some comparison of the state of lighting after the main lights went off Mr Gibson said that the stage would have been lit brighter than the courtroom we were then working in, and brighter than a domestic housing situation. He denied that he had operated the lights so that the stage was plunged into effective darkness as the plaintiff was attempting to come down the risers in order to make his way off stage. The evidence of various of the witnesses was put to him. For example, it was put to him that Ms Faint had said, "Within two to three minutes of the end of the concert and our leaving the stage, lights were turned off and the auditorium lights were turned on." He was then asked to confirm that that is what occurred and his answer was:
"I don't know how she got that mixed up because the auditorium is what the audience sit in, and the stage lights are what the show and the crew work in. So the auditorium lights were turned on before the band spectacular even started their last song because it was noted by the MC this would be the last song and for all audience members this year to start walking out instead of hanging around."
Mr Gibson confirmed that that was the situation in the year 2003 which he thought he was being asked about but confirmed that it was done in precisely the same way in 2002 with the exception that the master of ceremonies did not make an announcement to the audience as he had done the following year in 2003 reminding the audience that they were meant to leave when the auditorium lights came up, and the bands would play on as the audience left the auditorium.
Mr Gibson had seen the plaintiff fall. He said that some seconds after he had turned the stage lights on he saw one of the band members starting to stand up using a chair as a support and that he then saw him fall sideways off the riser, the chair falling with him. This was about 10 metres away from where he was standing. When he was cross‑examined closely on his observations in relation to the plaintiff's fall this exchange took place:
"Is this what happened: He was getting ready to get down and was reaching out to hold onto a chair. That's how it appeared?‑‑‑Yes. That's how it appeared to me, yes.
As he was about to get down the lights went off and immediately afterwards he fell off the edge?‑‑‑No, because the lights didn't go off. It was that the lights were already dimming over the – dimmed because I had the work lights already on …
Wasn't there a change of lighting when Mr McCready fell off the edge or the man that you saw fell off the edge?‑‑‑No. There wasn't a change in show lighting because the show lighting was already bending down, so whether he had actually sat there for a bit longer to – because you're going from like I say 14,000 watts times 5, so all of a sudden back to like 32 watt fluoros and four 150 watt globes, so there's going to be difference in your sight, obviously, but no different to a house light in fact.
I'll just ask that question again: Do you agree that at the time when the man you saw fell off, there was a change in the lighting?‑‑‑No, because we've gone from bright lights down to work lights so.
Do you agree that at that time it went from bright lights to what you call work lights?‑‑‑Yes; okay, yes, but it wasn't going down as he was falling. It has already gone so.
Do you agree that for people on the risers and the stage at that time, that was a change that in effect put their vision into total blackness?‑‑‑No, because they had been rehearsing in that same light all day.
…
Do you agree that about the time the person you saw fell the floodlights were turned off?‑‑‑. No, the work lights are turned on.
You agree then that some high power lights were turned off at about the time the man you saw fell?‑‑‑Yes they were dimmed over a 10 to 15 second period.
They were turned off immediately weren't they?‑‑‑No, they were dimmed over a 10 to 15 second period.
That is what should have happened but that isn't what did happen?‑‑‑I was there and that's what happened.
Do you agree it was very dark after those lights were ‑‑?‑‑‑I disagree." (T122 – 123)
Mr Bone was a stage hand and a lighting board operator at the Queens Park Theatre in Geraldton in November 2002 and was working on the night of the Geraldton Band Spectacular on 30 November of that year. He remembered the evening in question. He said that after the band finished playing the audience left the theatre and the stage lights were turned on. After the stage lights were turned on he then dimmed the overhead lights gradually turning them off over a 10 to 15 second period. He remembers seeing a band member start to stand up using his chair as a support and when he was almost standing he saw him suddenly topple sideways pulling the chair with him. He was about 35 metres away from the stage in the lighting box and said there was ample light for him to see the man fall. He fell from a riser which was 48 centimetres high. Asked how he knew the riser was 48 centimetres high Mr Bone replied that he knew because there were three standard sets with standard measurements and that was the measurement of the one from which the plaintiff fell.
Mr Bone was cross‑examined closely about whether his evidence was true recollection or reconstruction and at the end of his testimony I was left in no doubt but that his evidence was true recollection and, as with Mr Gibson, I found Mr Bone an impressive witness. He reiterated in his testimony that as the band was finishing its final number Mr Gibson was on stage and turned the working lights on and told Mr Bone that that was what he had done. Once the working lights had been turned on Mr Bone said it was up to him then to turn off the main stage lights and when he got the all clear from Mr Gibson he began turning the stage lights off by dimming them gradually over 10 to 15 seconds. He explained he cannot do that job quickly because that would cause bulbs to break and as it was his job to climb "up there" and fix them he was careful to make sure he did the job properly. He confirmed that at the same time the auditorium lights were on, that is to say the lights in the main body of the theatre by which the audience saw its way out and, attempting to recollect the state of the lighting at the time that he observed the plaintiff fall, he too thought the lights brighter than those in the court. It was put to Mr Bone in cross‑examination that insofar as the plaintiff fell he was not really sure what happened. Mr Bone testified that he was sure what happened. He said that the plaintiff used a chair to help support himself when the chair fell and then he fell. He had a good view of this from his lighting box which is elevated above stage height with his viewing angle being approximately 45 degrees to the stage and with a view of the entire stage (which the lighting controller obviously needs in order to be able to do his job effectively).

Findings of fact

I much prefer the evidence of Mr Gibson and Mr Bone to the evidence of the plaintiff and such of his witnesses who attribute his fall to the dramatic change in lighting, the lack of edge strips and the lack of proper steps and handrails. Each of Mr Gibson and Mr Bone had a clear view of the stage. Each was directly involved with the management of the stage lighting at the end of the performance. Neither of Mr Gibson nor Mr Bone appeared to me to be a defensive witness such that either appeared to be concerned to protect their own reputations. They had the best view of all of the witnesses. Each testified that the plaintiff fell when, in the process of using a chair on stage as a support, the chair fell and the plaintiff toppled over with it at a time when the stage was well lit with lights that were brighter than those operating in the court at the time the evidence was being given and, I observe, for the sake of completeness, that those lights were more than adequate to work in and indeed I would have thought the lights in court were brighter than those in a domestic housing environment.
Accordingly, as the plaintiff has attributed the cause of his fall to a sudden change in the lighting on the stage, his action must fail.

Provisional assessment of damages

The plaintiff's action having failed I must nevertheless proceed to make a provisional assessment of damages in the event that this matter is taken elsewhere. In this regard the provisions of the Law Reform (Miscellaneous Provisions) Act 1941 applies, s 4(1) operating to preserve the cause of action for the benefit of the plaintiff's estate. The action does not survive to preserve the claim as existed immediately prior to the plaintiff's death but only insofar as the claim comprises a claim for damages which come within the provisions of s 4(2) of the Act which provides as follows:
"(2)Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person —
(a)shall not include any exemplary damages;
(b)in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry;
(c)where the death of that person has been caused by the Act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included;
(ca)where the cause of action arose from the suffering of a latent injury that is attributable to the inhalation of asbestos and it is proved that the damages that would (if death had not ensued) have been recoverable by the deceased person would, by reason of the Acts Amendment (Asbestos Related Diseases) Act 1983, have been limited to damages in respect of pecuniary loss and a total amount in any case of $120 000, shall not include damages except in respect of pecuniary loss and the total amount of the damages recoverable shall not in any case exceed $120 000;
(d)shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by him or for the curtailment of his expectation of life;
(e) shall not include any damages for the loss of the capacity of that person to earn, or for the loss of future probable earnings of that person, during such time after his death as he would have survived but for the Act or omission which gives rise to the cause of action."
In the circumstances of this case this leaves but two areas of damage; special damages which have been agreed in the sum of $13,078.78 and a claim for the value of past gratuitous services in respect of which the hourly rate has been agreed at $14. There is ample evidence to support a claim for gratuitous services. The plaintiff was hospitalised after his fall and needed operative treatment and after care management. Until he became ambulatory with the aid of a walking frame about six weeks after his operation, his wife had to do practically everything for him. While she was available to give 24‑hour a day care clearly she didn't and the plaintiff's claim for an award of gratuitous services based on 24 hours a day around the clock care for the first three weeks after he came home on 11 December 2002 is clearly misconceived, as is a claim based on 12 hours a day gratuitous services rendered during the same period. I have no difficulty in finding however that Mrs McCready would have rendered services to her late husband at the rate of six hours a day, seven days a week for the first 12 weeks after he came home following his discharge from hospital. Mrs McCready testified (T39):
"[The plaintiff] continued to require help with getting dressed and with washing. Joe particularly needed assistance with getting his trousers and socks on and off. As Joe was able to place more weight on his left side he progressed from using a walking frame to move from one part of the house to another to crutches and later to a walking stick which he still sometimes uses. This period of recovery took approximately 12 weeks during which I continued to help Joe and do just about everything for him."
Thereafter the services rendered by Mrs McCready to her late husband diminished a little to four hours a day for some weeks and then to two hours a day until, by the end of June 2003, he was able to look after himself. This, therefore, supports a claim based on 12 weeks at 42 hours a week, 10 weeks at 28 hours a week and 7 weeks at 14 hours a week all calculated at $14 per hour giving rise to a net provisional award for past gratuitous services in the sum of $12,348 and, had the plaintiff succeeded in his action I would have allowed him this sum.
There will be a total provisional award therefore in the sum of $25,426.78.