Millar & Evans v Sotiroulis & Ors No. DCCIV-99-1017

Millar & Evans v Sotiroulis & Ors
[2003] SADC 96
Judge Simpson
Civil
Introduction

The plaintiffs, Stephen Millar and Debbie Joy Evans, claim damages in respect of personal injury alleged to have been sustained by the first plaintiff, Stephen Millar, on 16 August 1995, as a result of a brick wall falling onto him. The brick wall was the front fence of the house at 26 Brice Street, Seaton, which the plaintiffs were renting. The second plaintiff, Debbie Joy Evans, was the de facto wife of the first plaintiff.
The first defendant, Georgia Sotiroulis, now Georgia Constas, was at all material times the registered proprietor of the premises at 26 Brice Street Seaton. In April or May 1995, the plaintiffs entered into a written tenancy agreement to rent the premises.
The fourth defendant, Marino Michael Tattoli, was a bricklayer, carrying on business in partnership with his wife, the fifth defendant, Kerryl Lee-Ellen Tattoli.
By consent, the claim against the second and third defendants, and the respective Contribution Notices, were dismissed, with no order as to costs.
By the Further Amended Statement of Claim dated 8 February 2002, the plaintiffs claim that on 16 August 1995, at about 11 am, while the first plaintiff was sweeping the front footpath and was standing on the front footpath next to the western section of the front brick wall, the brick wall fell away from the house onto the front footpath and onto the first plaintiff, as a result of which he sustained the following injuries:
1.     bruises, cuts and abrasions;
2.     dislocation of the right elbow;
3.     lower back pain;
4.     crushed right wrist and hand.
The second plaintiff claims damages for negligence and/or breach of contract and/or for loss of consortium.
The Claim Against the First Defendant
The plaintiffs claim that by reason of the tenancy agreement, the first defendant owed them a duty to keep the premises free of defects which could have been discovered by reasonable skill or care on her part, or that of her servants or agents. In breach of the duty owed to the plaintiffs, it is claimed that the first defendant failed to inspect the brick wall, when an inspection would have revealed the dangerous and unsafe condition of the wall.
The plaintiffs claim that the fall of the brick wall was caused by the negligence of the first defendant, in that she:
1.failed to ensure that the brick wall was stable and able to withstand minimal or likely lateral pressure such as would be applied and was in fact applied by the first plaintiff brushing over and past the said brick wall.
2.failed to inspect the brick wall and in particular the bed of the brick wall to ensure that it was resting on and properly secured to its concrete bed:-
(a)prior to the plaintiffs entering into possession of the premises and/or
(b)whilst the plaintiffs were in possession of the premises.
3.failed to ensure that the brick wall had been repaired in a proper and workmanlike manner prior to the entry of the plaintiffs into possession of the premises.
4.failed to warn the plaintiffs that the brick wall was in a dangerous and unsafe condition and not properly secured to the concrete bed on which it rested.
5.knew or in the alternative should have known that the brick wall was in a dangerous and unsafe condition and not properly secured to its concrete bed on which it rested and failed to repair the said wall adequately or at all and/or failed to give the plaintiffs any or any adequate warning of the condition of the said wall.
The Claim in Negligence
The plaintiffs claim that the first defendant owed them a duty to keep the premises free of defects which could have been discovered by reasonable care and skill on the part of the first defendant. The first defendant admits that she owed a duty to the plaintiffs. The issue is the scope of the duty and whether or not the duty was breached.
The scope of the duty of the first defendant is determined by legislation and authority.
Wrongs Act 1936
The first defendant was the landlord of the plaintiffs. Pursuant to the provisions of section 17B of the Wrongs Act 1936, the first defendant was also an occupier of the premises. “Occupier " of premises is defined to mean a person in occupation or control of the premises, and includes a landlord. In Part 1B of the Act, “dangerous” includes unsafe and “premises” means a building or structure.
Section 17C of the Act provides:
(1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2) In determining the standard of care to be exercised by the occupier of premises, a court shall take into account-
(a)the nature and extent of the premises; and
(b) the nature and extent of the danger arising from the state or condition of the premises; and
(c)the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d) the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e)the extent (if at all) to which the occupier was aware, or ought to have been aware, of-
(i) the danger; and
(ii) the entry of persons onto the premises; and
(f)the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h)any other matter that the court thinks relevant.
(3) The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.
(4) Subject to any Act or law to the contrary, an occupier's duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of any person who is a stranger to the contract.
(5) Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subsection, the question of whether the occupier is liable for injury, damage or loss shall be determined by reference to that higher standard of care.
Pursuant to the provisions of section 17D of the Act, the liability of a landlord who is not in occupation of the premises is limited to injury, loss or damage arising from an act, or omission in carrying out an obligation to maintain or repair, or a failure to maintain or repair, the premises.
Common Law
The obligation on the first defendant was to take reasonable care to avoid foreseeable injury to prospective tenants and members of their household. The question as to what is reasonable is a question of fact in each case. In particular, whether it is reasonable to require an owner to inspect premises, or to have an expert inspect premises before letting, depends on the circumstances.[i] The identification of the steps a landlord is required to undertake are “those that would be taken in the ordinary course of human conduct.” It will depend on whether an ordinary person, in the position of the landlord, would or should have known of a risk of injury, the steps which should be taken in response to the risk and the reasonableness of taking such steps. It is not an exercise of hindsight. [ii] In some circumstances, for example, in cases marked by special dependence or vulnerability in the person to whom the duty is owed, the duty a landlord owes to a tenant may be a non-delegable duty, which cannot be discharged by hiring a skilled person to perform it.[iii]
In my opinion, there is no basis here to suggest any special features in the relationship between the plaintiffs and the first defendant to substitute “for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken.”[iv]
During the course of submissions, it was submitted on behalf of the plaintiffs that, in the event that no finding could be made on the evidence as to the cause of the brick wall falling, an inference could nevertheless be drawn that it would not have fallen in the absence of negligence.[v]
The Claim in Contract
The plaintiffs claim that it was an express term of, and/or a term should be implied in, the Tenancy Agreement:
1. at common law, that the premises were in a safe and tenantable condition, and/or
2. by virtue of the operation of section 68 of the Residential Tenancies Act 1995, that the premises were in a reasonable state of repair at the beginning of the tenancy, and were to be kept in a reasonable state of repair by the first defendant, having regard to the age, character and prospective life of the premises.
The Tenancy Agreement itself was not tendered in evidence and so no question of any express term of the agreement arises. The plaintiffs claim that the first defendant breached the terms of the Tenancy Agreement, terms implied at common law, and/or incorporated by operation of the Residential Tenancies Act 1995, and rely on the allegations of negligence, referred to above.
At common law, if an occupier of premises agrees for reward to allow a person to enter the premises for some purpose, the occupier impliedly warrants that the premises are as safe for the purpose as an exercise of reasonable skill and care, on the part of the occupier or an independent contractor, can make them.[vi]
The burden of proving a breach of contract rests on the plaintiffs. It is not for the defendant occupier to satisfy the court that an unsafe condition of the premises was not due to anyone’s negligence. In some circumstances, a plaintiff may “be able to launch a case without specifying an act or omission on the part of any particular person as responsible for the defect or danger.”[vii] That was not the case here.
“The occupier’s duty, to whomsoever it falls to discharge it, is to use reasonable care and skill to make the premises safe for the purpose contemplated by the occupier and the person entering them under contract. In cases in which a plaintiff who has entered under the contract alleges that his damage was caused by some failure on the part of the defendant or his servants to maintain premises in a safe condition, the observation of Fullagar J in Watson v George[viii] is in point:
‘the whole question will resolve itself practically into a question whether the defendant or a servant of the defendant has been guilty of negligence in connection with the source of danger and damage.’[ix]
I assume for the purposes of the decision, that the first defendant, as the owner and landlord of the premises, was relevantly the occupier of the premises.[x]
Residential Tenancies Act 1995
The plaintiffs also claim that it was an express and/or implied term of the tenancy agreement that the premises were in a safe and tenantable condition, and/or that the premises were in a reasonable state of repair at the beginning of the tenancy having regard to the age, character and prospective life of the premises, pursuant to section 68 of the Residential Tenancies Act 1995.
Section 68 relevantly provides:
(1) It is a term of a residential tenancy agreement that the landlord—
(a)will ensure that the premises, and ancillary property, are in a reasonable state of repair at the beginning of the tenancy and will keep them in a reasonable state of repair having regard to their age, character and prospective life; and
(b)    will comply with statutory requirements affecting the premises.
• The obligation applies even though the tenant had notice of the state of disrepair before entering into occupation.
(2) However—
(a)     the landlord will not be regarded as being in breach of the obligation to repair unless—
(i) the landlord has notice of the defect requiring repair; and
(ii)the landlord fails to act with reasonable diligence to have the defect repaired; …
(3) If—
(a) premises or ancillary property are in a state of disrepair that does not arise from a contravention of the residential tenancy agreement by the tenant; and
(b)the state of disrepair is, unless remedied, likely to result in personal injury or damage to property or undue inconvenience; and
(c)the tenant notifies the landlord of the state of disrepair or makes a reasonable attempt to do so; and
(d)    the tenant incurs costs in having the state of disrepair remedied; and
(e) the repairs are carried out by a person who is licensed to carry out the necessary work and the person provides the landlord with a report on the work carried out and the apparent cause of the state of disrepair,
the tenant is entitled to recover from the landlord the reasonable costs of having the repairs carried out.
I note that sections 64-72 of the Act did not come into operation until 30 November 1995[xi], some months after the incident on which the plaintiffs’ claim is based.
The Claim against the Fourth and Fifth Defendants
The case was conducted on the basis that the fourth defendant owed a duty of care to the plaintiffs, although that was not pleaded. The plaintiffs claim that the fourth defendant repaired the brick wall shortly before the plaintiffs moved into the premises and that he was negligent in that he:
1.failed to secure or properly secure the repaired wall to the concrete bed on which it rested;
2.failed to ensure the repaired wall was secured to the concrete bed in a manner that would not be weakened by exposure to silt or water;
3.failed to warn persons, including the plaintiffs, that the wall was in a dangerous and unsafe condition and not properly secured to the concrete bed on which it rested.
The plaintiffs claim that the fall of the wall was caused by the negligent repairs carried out by the fourth defendant, and that the fifth defendant is jointly liable as the partner of the fourth defendant, pursuant to the provisions of the Partnership Act 1891.
The Brick Wall
The brick wall was a low height masonry fence, constructed of concrete blocks. There can be no dispute that it was about 600mm, or 2 feet, high. It was the front fence of the rented premises, running in an east-west direction and made up of two sections, one each side of a path leading from the footpath to the front door. The wall was made up of three rows of concrete “Breeze Blocks”. The dimensions of each block were 390mm long x 190mm high x 90 mm thick. When laid with 10mm mortar joints, the blocks created a building modular size of 400mm x 200mm x 90mm in a single leaf wall, which extended up from a concrete strip beam footing, or base, of about 40-50mm, laid within the ground. In each section, there were 3 supporting piers constructed behind the single leaf Breeze blocks. The piers were made up of six solid concrete bricks, each with a dimension of 390mm x 90mm x 90mm.

The eastern, undamaged, section of the brick wall[xii]
The Incident Giving Rise to the Claim
The first plaintiff’s evidence
The plaintiffs moved into the premises with their three children at 26 Brice Street Seaton in April or May 1995. They had first inspected the premises. They did not check the front brick wall and there was no discussion about it with the landlord.
The first plaintiff said that on 16 August 1995, he was at home. He played football with his son, Nathan, who would have been about three or four years old. He said that the ball went over the front brick wall, which came up to his hip. He thought he leant over the middle section of the western wall to pick up the ball. He said that as he did so, his belly pressed against the fence and he was pretty sure that he felt something move. Having regard to the length of the fence, he would not have thought anything of it.[xiii]
The first plaintiff said that later that day, he mowed the lawns. He was out the front sweeping up the grass from the footpath. He could not find a big broom, so he was on the ground, using a small broom and shovel. He grabbed hold of the top of the fence to lift himself up. He said he went to push himself up and the fence came down on top of him.[xiv]
He said that his arm was ripped out of its socket and was just dangling down. He fainted with the pain. His father came across the road from his house and removed bricks from his arm. The first plaintiff was taken to the Queen Elizabeth Hospital by one of his brothers. The Hospital notes indicate that the first plaintiff was seen at about 10 to 2 in the afternoon in obvious distress. The history given to the treating doctor was that a brick wall had collapsed onto the first plaintiff’s right arm. On examination, a provisional diagnosis was made of a fracture dislocation of the right elbow. Moderate hand swelling and crush injury was noted. On X-Ray, a diagnosis was made of dislocated right elbow with a fracture of the coronoid process of the ulna and an undisplaced fracture of the head of the radius. The dislocation was easily reduced and the first plaintiff discharged home with a collar and cuff sling and medication, to be reviewed in the orthopaedic clinic in one week’s time. No note of any lower back pain was made.
Photographs were taken of the brick wall apparently on 29 August 1995[xv], and on the 8 September 1995[xvi]. The photographs taken on 8 September 1995 were taken by Mr W H Reeves, a building consultant. It is not clear who took the photographs on 29 August 1995. The first plaintiff did not take them. They may have been taken by his solicitor. He was not sure.[xvii] Of the photographs taken on 29 August 1995, photograph A is a view of the whole front fence. Photograph B shows the eastern section which was not damaged. The first plaintiff said photographs F, G, and H show the western section of the front fence damaged in the way he described in evidence. While there are some bricks which appear to have remained standing at each end of the section of wall, otherwise the photographs show the whole wall has come down.
In cross-examination, the first plaintiff found it difficult to accept that the wall was only about 600mm, or two feet high and came up to just above his knee, not up to his hip, and that it must have been his legs, and not his belly, which pressed up against the wall earlier in the day when, as he said, he thought he felt something move.[xviii]
He first said that he had mown the lawn with his own lawnmower, used his whipper-snipper on the grass growing around the tree and the grass growing through the concrete on the footpath, and that was how the grass cuttings he was sweeping up were sprayed up onto the footpath. He later agreed that he had told one of his doctors that someone else had mown the lawn, not him. After being reminded that his lawn mower may have broken down, he remembered someone else had mown the lawn and that the lawn mowing had been done with a catcher for the clippings. The first plaintiff said he would have done the edges of the lawn with a whipper-snipper. It may have been those clippings he was sweeping, not clippings from using his whipper-snipper out in the street, as he had first said. He said that the council was responsible for mowing the nature strip. He did not know how the cuttings got into the street. Possibly it had been a windy day.[xix]
When sweeping up grass cuttings with the small dustpan and broom, he had been on his knees next to the fence and facing the path to the front door of his house. He put his right hand up to pull himself up on the top of the fence.[xx] He was at the eastern end of the western section, about a quarter of the distance along the section from the end near the path to the front door, opposite the tree in the footpath.[xxi] He was kneeling perhaps on his right knee, with his left leg out on front, his weight on his left foot or, possibly on both knees.[xxii] He could not remember if he had the dustpan in one hand and the broom in the other, or if he had put them down. He thought, on reflection, that he had nothing in the hand which took hold of the wall.[xxiii] He did not remember whether he had pushed down on the wall to help himself up, or whether he had put his hand over the wall. He might have put his fingers through the holes in the bricks.[xxiv]

The first plaintiff said that the whole fence came down as a single structure. He referred to the construction of the wall and said that if even one brick came down, the whole lot came down in one piece. He said that there was wire right through it, from end to end.[xxv] “The only thing that was holding the wall up was gravity.”[xxvi]
He said:
“-like if you pull yourself up obviously you’re going to pull the fence towards you a little bit aren’t you?” [xxvii]
He said that the bricks were all over the footpath. With reference to Exhibit P4, photograph 6, the first plaintiff said that the only bricks left standing were the ones at each end of the wall.[xxviii] The first plaintiff said that the bricks shown on the garden in Exhibit 4, photograph 6, were the bricks that had been on the concrete, when the wall fell. There was nothing left standing in the middle.[xxix] As far as he knew, the photograph showed the bricks as they were after simply being put onto the garden from the footpath on the day of the accident.[xxx]
The Evidence of Mr Millar Snr
The first plaintiff’s father, Mr Neil Millar, gave evidence. His evidence was that he was at his home across the road from where the plaintiffs were living, on 16 August 1995. He heard a very loud bang from his lounge room, which was about 23 or 24 metres from the footpath outside the plaintiffs’ home. He went outside and saw the first plaintiff lying on the footpath with about two or three bricks on top of him. Mr Millar Snr said that the whole western section of the fence had fallen onto the footpath, from the small gate to the driveway. He said he lifted the bricks off the first plaintiff, who was lying on the footpath screaming. Mr Millar Snr said that he was in panic mode, as a result of the first plaintiff’s obvious distress.[xxxi] He said that he rang for an ambulance. The first plaintiff was in fact taken to hospital by one of Mr Millar’s other sons. Some time that same day, Mr Millar Snr picked up all the bricks and threw them back onto the property.[xxxii]
The Evidence of Mrs Barrett
Mrs Barrett lived across the road from the house occupied by the plaintiffs. As at 16 August 1995, she had lived in Brice Street, Seaton, for about 38 years. She had seen the front fence shortly after the first plaintiff’s injury to his arm. She gave evidence about the damage to it. She saw the first plaintiff with his arm in a sling and asked him what had happened. He told her the fence had fallen down. She looked at the fence. She saw an area of damage in the shape of a V, of about 4 to 6 feet at the top, between the eastern and centre piers. There was no damage to the piers themselves or to the section of the wall between the centre pier and the western pier of the western section of the fence. She estimated damage to about a quarter to one third of the western section of the fence. [xxxiii] She said that later the same day, she saw the first plaintiff and his brothers kicking the remaining fence down. She asked why they were doing that and was told it was to prevent injury to the first plaintiff’s daughter.[xxxiv]
In cross-examination, it was put to Mrs Barrett that she had spoken to a solicitor, acting on behalf of the plaintiffs, on 12 September 1995. What was said to be a transcript of the conversation was read to her. Mrs Barrett had, in the main, no recollection of the conversation at all. The conversation was not proved. In my opinion, in any event, it did not affect her evidence regarding her observations of the fence on 16 August 1995.
The evidence of the first defendant, Mrs Constas
Mrs Constas purchased the property at 26 Brice Street, Seaton from her parents in 1988. She was a student at the time. She rented the house to tenants. Mrs Constas let the house to the plaintiffs after Mr Millar Snr made enquiries on the plaintiffs’ behalf. The plaintiffs moved in after some repairs and maintenance to the premises, including replacement of some carpets and removal of oil stains in the garage.
During the time the premises were occupied by the previous tenants, about two feet or 600 mm of the front brick wall, at the corner, adjacent to the driveway, had been damaged.[xxxv] Mrs Constas assumed, because the damage was near the driveway, that a car was responsible.[xxxvi] She contacted her insurer and made arrangements for the repair of the fence with the fourth defendant, Mr Tattoli. Mr Tattoli provided a quote to repair the wall and did the repair work within a few days. Mrs Constas saw Mr Tattoli look at the fence and feel around, seeing what needed to be done.[xxxvii] She was also at the premises for some of the time while Mr Tattoli was doing the repair work. She saw nothing obviously wrong with the fence and assumed it was in good condition.[xxxviii] Mrs Constas did not herself perform any tests on, or inspect, the fence at any time.[xxxix] She did not pay attention to the fence, but was more concerned with the house itself. While she lived in Adelaide, she attended to the property herself. Sometimes her parents helped her. When she was unavailable, she asked a member of her family to take care of anything that needed to be done.[xl]
She married and moved to Melbourne shortly after the plaintiffs agreed to rent the house, and after that Mrs Constas’ family helped manage the property for her. It was her brother who looked after the replacement of the whole front fence after it was damaged in August 1995.[xli]
The Evidence of the Fourth Defendant, Mr Tattoli
The fourth defendant was born on 25 September 1964 and left school at 15, to begin work with his father, who was a general builder. Whilst working for his father, he worked under his supervision, on government projects, nursing homes and houses in Port Pirie. He learnt the basics of bricklaying and concrete work, including laying foundations, and how to read plans. He then worked for Readymix on the foundations for the BHP smelter at Port Pirie, before returning to work with his father. After oral examination by a building examiner, he obtained a restricted builder’s licence on 26 June 1989, allowing him to do building work, on a labour only basis, under the supervision of a general builder or owner builder. He has retained the licence since 1989.[xlii]
In 1989, the fourth defendant came to Adelaide and obtained building work with building companies. He also worked for Drystat Pty Ltd, a company which repaired walls affected by salt damp. Affected bricks were removed, a membrane installed and the old bricks replaced with new. Where work did not require engineer and/or council approval, the fourth defendant did building work for members of the public. That work included building fences less than one metre high, retaining walls, flower boxes, letter boxes and barbecues.[xliii]
The fourth defendant was asked by the first defendant, Mrs Constas, and her father, to repair the western end of the front brick wall at 26 Brice Street, Seaton, on 1 May 1995. He was told that the corner of the wall had been hit by a car. The western pier had been removed, although some mortar remained on the footing. The Besser blocks adjacent to the pier area were damaged. The decorative part of one or more of the Besser blocks was broken off. The fourth defendant inspected the wall. The inspection took 5 or 10 minutes.[xliv]
The fourth defendant looked at the footing of the wall and for signs of cracking. He needed to see if there had been any movement in a north-south direction, i.e., that the wall was still on its foundation. He walked along the wall, placing his hand on the top of the wall, using a wrist action, to see if there were any loose bricks.
He saw no heaves in the brickwork, no grass protruding from the base of the wall, and no apparent alteration to the alignment of the wall. The only cracking he saw was that in the decorative Besser block adjacent to the damaged western pier.[xlv]
The fourth defendant provided a quote of $250 for labour and materials to repair the brick wall. [xlvi] He estimated that he would need to replace six or seven Besser blocks and six half-height pier bricks, taking the repair back two or three blocks towards the eastern end of the wall to make the corner stronger. He told the first defendant and her father that he would not be able to match the original decorative Besser blocks.
The fourth defendant repaired the wall on 5 May 1995. He removed the mortar adhering to the footing and some of the Besser blocks. He used a diamond-tipped blade to slice through the mortar joint to remove the blocks, in order to minimize vibration, which might disturb the rest of the wall. The mortar adhered to the footing and to the blocks appeared very strong. He cut out a key to achieve better interlocking. The fourth defendant replaced the six half-height bricks of the pier and seven Besser blocks, three on the top row and two each on the second and the bottom row of the wall.[xlvii] He used a slightly stronger than usual mortar mix and a wall or brick tie between the half-height bricks and the Besser blocks in front. As a result of his repairs, the western section of the wall was shortened by about 390-400mm, with the removal of one block width.
The repair to the wall took about four or five hours. There was no sign of any instability while the fourth defendant was working on the wall. After finishing the repairs, the fourth defendant reassessed the western section of the wall and found nothing that attracted his attention. He checked the eastern wall for stability by wrist movement of his hand resting on top of the blocks, using a firm grip. The fourth defendant noticed a hairline crack in the western pier of the eastern section of the wall. He removed four of the half-bricks in the pier and re-laid them.[xlviii] He also repaired a flower box near the house. He noticed some salt damp in the eastern section of the wall, but not as marked as appears in the photographs, Exhibits P4 and P5. He did not believe it called for any repair.
In August 1995, the fourth defendant was told by a neighbour of the plaintiffs’ that part of the brick wall had collapsed. He was at first concerned that it might have been the part that he had repaired in May. He drove past the plaintiffs’ house on the way home. He pulled up briefly outside to look at the wall. The damage started at the eastern pier of the western wall and extended to the middle pier. He saw five or six bricks missing in the top row, and a lesser number in the second row. The Besser blocks in the top row, adjacent to the eastern and middle piers, were broken. Most of the bottom row remained standing.[xlix]
The Expert Evidence
The plaintiff called a building consultant, Mr Peter Jankovic. He had extensive experience in the building industry. Through SA Building Consultants, his practice included pre-purchase inspections, building advice and building inspections.
Mr Jankovic at no time inspected the fence. He based his opinion on the photographs in Exhibits P4 and P5, inspecting two or three masonry blocks and mortar in the plaintiffs’ solicitor’s office and a number of assumptions, including the following:
1.   That prior to the first plaintiff’s accident, the western end of the front brick wall sustained damage after being struck by a motor vehicle.
2.   That incident would have fractured a large portion of the fence.
3.   On 16 August 1995, the western section of the front brick wall fell as a “whole body”, explained in his evidence to mean “a complete length and height of the wall fell as one.”
In his report dated 3 January 2001, Mr Jankovic provided an explanation for how he assumed the fence had fallen. He said:
·the Besser Breeze Block fence “was extremely popular as a cheap type of attractive fence constructed in many parts of Adelaide in the 1960’s and 1970’s”.
·Many are still functional, although many have collapsed due to soil and lateral movement.
·The construction of this type of fence was not regarded as building work at the time of its construction.
·The type of fence is laterally weak. Fracturing of mortar joints could also have occurred over a long time due to naturally occurring soil movement or movement due to root growth of the adjoining tree.
·The mortar used to bond the units together was required to be relatively soft to allow the blocks to move in the mortar joints and not crack the block work itself. The mortar he viewed appeared suitable for its use.
·The piers would not provide proper support for lateral loads, however the end piers survived the incident, suggesting a lack of bonding between the end of the piers and the ends of the feature block work.
·It would have been good building practice at the time, due to the low height of the fence, to use two rows of reinforcing mesh, one on the top of the bottom block and one on the top of the second row, with the mesh continued to within 50 mm of each end of the fence, although the manufacturer’s specification required only one row of mesh every second 200mm rise in height.
·He assumed that the earlier incident in which the fence was struck by a vehicle, certainly would have fractured a large portion of the fence.
·Some of the fractures may not have been evident without shaking or lifting the fence.
·The fence should have been thoroughly inspected for further damage at the time of the repair, and
·had cracking been evident, consideration should have been given to rebuilding the fence, rather than carrying out minor repairs.
·when the fence was repaired, steel dowels ought to have been drilled to the end bed joint above and below the second height block, in order to provide a tie between the old and the new work.
·In the incident the subject of the proceedings, it appeared to him that, due to movement for whatever reason,
(i)the mortar at the eastern end of the western fence had separated between the western end of the block in front of the eastern pier and the adjacent Breeze Blocks; and
(ii)at the western end of the western section of the fence, the new mortar had separated between the existing Breeze Blocks and the newly installed full and half height blocks;
(iii)other ‘horizontal cracking’ which may have occurred particularly at the base of the fence, weakened the block work sufficiently, so that,
when a lateral load was applied to the fence, there was no resistance and the fence fell northwards.
The opinion in his report started from and depended on his assumption that the whole fence, between the eastern and western piers, fell over when the first plaintiff was injured. His opinion was that the whole fence fell over because of a failure of the mortar bond between the Breeze Blocks and the two end piers, together with horizontal cracking, particularly at the base of the wall, making the bond between the concrete base and the Besser blocks weak. There was no criticism made of the quality of the mortar itself.
In evidence , Mr Jancovic accepted that
· there were in fact two rows of reinforcing mesh in the construction of the wall, one more than the manufacturer’s specifications.
· any damage to the wall occasioned by it being struck by a car would depend on
1.the direction of the impact, the greater damage being caused by impact along the length of the wall rather than at right angles to it, and
2.the force of the impact, and
3.the strength of the horizontal reinforcing and connection between the fence components including between the pier and the blocks.
He had never in his experience as a builder, been asked to inspect a wall of this type to determine its stability.
The wall had been constructed with no vertical reinforcement in the piers. This was normal practice for a fence of its type. No building approval was required for its construction. The type of wall was commonly constructed by handymen. Its stability between the piers in a north/south direction depended on its own weight and the strength of the mortar bonds.
In its original condition, a moderate force in a north/south direction could have caused part of the fence to fall outwards towards the street. Resistance of mortar bonds to a force in that direction is necessarily weak. Unless the piers are vertically reinforced, the weakest point is the connection between the brickwork and the concrete footing. If the wall is rocked slightly, that is the first place it will break away.
Mr Jancovic agreed that the photographs suggested that it was probable that the mortar at the eastern end pier in fact did not fail when force was applied to the wall. Assuming that the pier did not fall over, it appears from photographs H, Exhibit P5, and 8, Exhibit P4, that the wall fell when the top Besser Block broke, and not because of failure of the mortar.[l]
The point at which the fence gave way was therefore at the brickwork not in the mortar joints. The mortar bonding was sufficient, notwithstanding there appears to be root growth and some separation between the mortar and the footing.
Mr Warren Holden Reeves, a building consultant, was also called by the plaintiff. In his opinion, prior to 16 August 1995, the wall probably showed signs of stress, similar to the signs observable in September 1995 in the eastern section of the wall, which was not damaged. The signs of deterioration were of salt damp attack in the base course of the masonry, the effect of which would be seen first in the mortar, and delamination, or opening or crack in mortar, in particular between, for example, the two sections of the wall at the pier.[li] There was silt build up under the bottom course of mortar in the damaged western section, indicating longstanding delamination. That was, however, only visible because of the removal of the wall from the footing.[lii]
His opinion was also based on the assumption that the whole wall came down. In his opinion, and on that assumption, given the amount of silting under the base of the mortar joint of the wall, it is likely that shock testing the wall before, or at the appropriate time after repairs by Mr Tattoli, would have indicated that replacement of the whole wall west of the footpath was indicated. On the assumption that the whole wall fell over, it is probable that, if a reasonable horizontal force, i.e., a force at right angles to the wall, had been applied, movement of the western wall from its original position would have resulted. If movement had been observed, a concern about the wall’s stability would have been reasonable. Advice from a bricklayer would then have been appropriate.
However, at the time of his inspection and shock test by hand on 8 September 1995, notwithstanding the visible signs of stress, the eastern section of the wall was sound, and in fact showed quite good stability. There is no evidence that the footing of either section of the wall was not sound.[liii]
Mr Reeves took the photographs, Exhibit P4, on 8 September 1995. Photograph 13 is of blocks from the damaged western section of the fence, which had apparently been carried to a position near the house. He could give no explanation about why that had been done or what else had happened to the damaged fence after 16 August 1995. A comparison of the two sets of photographs, Exhibits P4 and P5, clearly indicates re-arrangement of the bricks, both at either end and in the section between each end of the western section of the wall. In particular, a comparison of photographs C, Exhibit P5, and 7, Exhibit P4, indicates an alteration in the configuration of the blocks making up the eastern pier between 29 August 1995 and 8 September 1995. [liv]
A comparison of photographs E and F, Exhibit P5, shows that the configuration of Besser blocks and half bricks making up the eastern pier was changed on the day the photographs were taken. Photograph E, shows a break in the Besser block in the top row adjacent to the eastern pier of the western section. That suggests that the failure in the wall at the eastern pier occurred in the brickwork, not in the mortar joint.[lv]

It is also apparent from photograph 11, Exhibit P4, that the western pier had been completely dislodged from the footing. Either it fell over and was re-erected by some one in that position, or if it did not fall over, it must have been moved from its original position.[lvi]
Mr Reeves gave his opinion on the assumption that on 16 August 1995, the whole wall, or a substantial part of it, collapsed, including the centre pier and parts of the eastern and western piers.[lvii]
If it were the case that a V shaped portion of the wall, made up of Besser blocks in the top two rows only, between the eastern and the centre piers, came down, rather than the whole length of the wall between the eastern and western piers, then Mr Reeves said that would indicate a failure at the top of the wall, with the weakest point either in the blocks themselves or in the mortar joint between the first and second row of blocks, rather than a failure between the mortar and the footing.[lviii]
The first defendant, Mrs Constans, called Mr John Goldfinch of Koukourou Engineers. In providing his opinion, he first made the following assumptions:
·    at the time of the wall collapse, the first plaintiff was weeding or cleaning on the northern or footpath side of the fence, in the vicinity of the western section, and then “when lifting himself up on the fence, a section of the masonry fence collapsed upon him, causing personal injury.”
·    the collapsed section of wall extended from the eastern pier to the western pier, a length of about 20 blocks or 8 metres.
·    the eastern and western piers remained standing, at least partially, in spite of an apparent loss of mortar bond between the eastern pier and the footing due to intrusion of silt and most probably plant root intrusion into the base bed joint.
·    the bond between masonry and footing was weak.
·    in April 1995, there was some form of motor vehicle impact on the western pier of the western section, with resultant damage being repaired by the fourth defendant.
·    there may have been a weakness between the original masonry and the new concrete blocks used in repair work at the point where the new blocks are integrated with the existing block work,
Mr Goldfinch undertook some calculations as to the force required for the wall to fall over in the way described by the plaintiff, having regard to the stack bond type of construction, and the fact that in stack bonded walls, dry shrinkage occurring as a result of age affects vertical mortar joints as well as horizontal. In the course of his evidence, he modified his calculations, making the following assumptions:
1.   the two end piers remained standing in the incident of August 1995,
2.   the length of the collapsed section was 16 blocks or 6.4 metres, and
3.   there was no mortar bond at all along the full length of the collapsed section.
He calculated that it would have taken a force in the order of some 46 kg to overturn the wall as a whole, i.e., excluding the piers. Once the top of the wall was moved a distance of 103 mm to the north from its original position, the wall would have fallen over due to the force of gravity.
On the assumption of full bond strength between the bottom row of blocks and the concrete footing, the base bed joints, the horizontal load required at the top of the wall for it to fall as a whole, would be 680 kg. On the assumption of half bond strength, the horizontal force required would be 362 kg.
He did not consider the force required to cause failure of the blocks or of mortar joints higher up the wall.
If the damage to the wall occurred with the failure occurring in one of the Besser blocks rather than the mortar, the force required would be an impact, rather than a turning force, such as someone’s foot hitting the wall, if the block was weak.[lix]
Having regard to the construction of the wall, if damage occurred in a V shaped section, the force applied is likely to have been a sharp impact force, like a person running at the wall. If the weakest part of the wall was the block, which was snapped off, it is unlikely to have occurred through a person pulling himself up on the wall.[lx]
In his opinion, deterioration over the years due to salt damp and microcracking would have been the same in both the eastern and western sections, although the presence of the tree on the footpath near the western section had the potential to cause some variation in moisture content at the western end and the potential to cause uplift below the fence footing.[lxi]
The Witnesses
I do not accept the evidence of the first plaintiff, unless it is corroborated by other evidence. The first plaintiff was an unimpressive witness. He was defensive and argumentative. I make an allowance for the assessment of the psychiatrists, Dr Branson and Dr Le Page, that the plaintiff is of low-average intelligence and has what was described as a personality weakness. Notwithstanding, I find the first plaintiff was not a witness of truth. The first plaintiff accepted that on a previous occasions he had told lies to obtain a benefit. In 1996, he borrowed money from a Credit Union for the purchase of a car on the basis that he was employed by a firm, Sonic Trailers. He was not and had never been employed by Sonic Trailers. Loan insurance was obtained without disclosure that the first plaintiff had sustained the elbow injury in August 1995.[lxii] The first plaintiff made a claim on the insurer for repayments of the loan on his behalf.[lxiii] I do not accept, and in any event it makes no difference, that the first plaintiff entered into the loan agreement with the help of an officer of the Credit Union, who, he said, knew he was unemployed, as he tried to explain at some length.[lxiv] The first plaintiff’s manner of giving evidence strongly suggested that he would give any answer which he understood to be the most advantageous to him in pursuing his claim.
Mr Millar Snr gave me the impression that he was anxious to support his son and his claim. Where his evidence is not supported by other, reliable, evidence, I do not accept it.
I accept, with some qualification and as far as it goes, the evidence of the second plaintiff, Ms Evans.
I accept the evidence of the fourth defendant, Mr Tattoli. He gave evidence in a straightforward way and his evidence was not in any way compromised by cross-examination. I also accept the evidence of Mrs Barrett and the first defendant, Mrs Constas.
I accept the opinions given by the expert building/engineering witnesses, and the medical practitioners, in so far as those opinions are based on established facts, rather than on assumptions which ultimately were not made out on the evidence.[lxv] In each case, there is little, if any, difference in their opinions.
Findings
1.On 16 August 1995, the first plaintiff injured his right arm.
2.The injury he sustained was a fracture dislocation of the right elbow.
3.It was a posterior dislocation, which may occur as a result of indirect violence of a fall on the hand. The normal mechanism by which posterior dislocations of the elbow occur is by falling on a raised right hand, the right forearm extends and the anterior aspect of the lower end of the humerus slips over the coronoid notch of the ulna, the upper arm dislocating forward and the lower arm dislocating backwards.[lxvi]
4.I do not accept the first plaintiff’s explanation for how the injury occurred. I do not know how he did it and it is not appropriate to speculate on what might have happened.
5.The first plaintiff was found by his father on the ground near the front brick wall.
6.At the time the injury occurred to the first plaintiff, it is likely that the western section of the front brick wall was also damaged. It is not appropriate to speculate on how the damage may have occurred and/or how, if at all, it is connected with the injury to the first plaintiff except in a temporal sense.
7.The fourth defendant had significant relevant building experience as at May-August 1995. He inspected the brick wall and made an appropriate assessment of its stability in May 1995.
8.The Besser Breeze Block fence was extremely popular as a cheap type of attractive fence constructed in many parts of Adelaide in the 1960’s and 1970’s.
9.Construction of that type of fence did not, and does not, require engineering or council approval.
10.The brick wall was not at any relevant time in a dangerous or unsafe condition. It was a wall of about 600mm, or 2 feet high, plus the concrete footing. It was constructed at least in accordance with the manufacturer’s recommendations, and in accordance with building standards still pertaining today.
11.Both the eastern and western sections of the front brick wall were in reasonable condition as at the period May-August 1995, having regard to the type of fence it was and its age.
12.The repairs carried out by Mr Tattoli were carried out in proper and workmanlike manner. No criticism was made of the way he carried them out. There was nothing done in the repair of the wall which would have weakened the mortar bond between the wall and the concrete footing, by exposure to silt or water, or otherwise.
13.There was no relevant difference in the condition or stability of the wall between the eastern and western sections as at May 1995.
14.The brick wall was resting on the concrete footing and was adequately secured by the mortar bond, which was the usual type of construction for the type of fence.
15.The mortar between the Besser blocks themselves, the blocks and the half-height bricks and the blocks, bricks and the footing, was of reasonable strength or slightly stronger than might be expected.
16.At the time of the first plaintiff’s injury, the mortar bond between the brick wall and the footing on which it rested, did not fail.
17.The whole western section of the wall, or the section between the two end piers, did not fall over at the time of the injury to the first plaintiff.
18.The damage to the brick wall occurred in a V shape in the section between the eastern and centre piers, in the configuration described by Mr Tattoli and Mrs Barrett.
19.The damage to the brick wall was likely to have been caused by a sharp impact or blow to the wall, sufficient to break the Besser blocks, rather than any lateral pressure producing a turning force at the top of the wall.
20.The damage to the brick wall was not caused in any sense by the repairs carried out by the fourth defendant.
21.The brick wall did not fall because of any act, or omission, or a failure on the part of the first defendant to maintain or repair the brick wall.
22.Inspection by the first defendant in the period between April and August 1995 was unlikely to have disclosed any defect in the brick wall, or given rise to any indication that expert assessment should be undertaken.
There is no explanation as to how the damage to the wall occurred, nor as to how the first plaintiff was injured. The cause of the accident to the first plaintiff has not been established. It has not been established that the relevant cause was under the control of the first or the fourth defendant. It has not been established that the damage to the wall was of such a kind that it does not ordinarily occur without negligence. On the contrary, the damage to the wall is likely to have occurred as a result of a sharp impact or blow.
This is not a case where all of the evidence as to the occurrence in question would itself support an inference of want of care on the defendants’ part. [lxvii]
The plaintiffs have not established that the defendants, or any of them, were negligent. The plaintiffs have not established that the first defendant was in breach of the Tenancy agreement. The plaintiffs’ claim must fail.
In the event that I am wrong on the question of liability, I assess the plaintiffs’ damages.
Damages
On the day after the incident, 17 August 1995, the first plaintiff re-attended at The Queen Elizabeth Hospital apparently because of continuing discomfort. He was treated with pain relief and adjustment to the sling. On 23 August 1995, the first plaintiff was reviewed in the Outpatients Department. Swelling in the right arm from the elbow distally and in the hand was noted. The first plaintiff attended on three occasions for physiotherapy until around September 1995. He next attended at the hospital on 8 February 1996, on referral from a general practitioner to the Fracture Clinic, with a fixed flexion deformity of the elbow. On 18 March 1996, the first plaintiff was seen in the Fracture Clinic of The Queen Elizabeth Hospital. A note was made of no real follow-up since the dislocation. There was a limited range of movement in the elbow and the question of a loose body in the elbow joint raised. On 30 June 1996, the plaintiff attended the Orthopaedic Clinic at the hospital and a splint was provided. He did not attend again until 20 February 1997, on referral from his general practitioner to the Orthopaedic Clinic. He was seen by Mr Darren Waters, Visiting Orthopaedic Surgeon, in the Fracture Clinic on 10 March 1997. Following a CT scan, very large loose bodies were noted in the elbow and suggestion made for arthroscopy and removal of the loose bodies.[lxviii]
The first plaintiff said that he wore the splint for probably well over a year. He said that it did not help to increase the range of movement in his elbow. The first plaintiff said that he experienced a lot of pain during the first year following the injury. He was bored and depressed and he began drinking alcohol to excess. The pain improved after two years, although he can still feel it and sometimes wakes up in the middle of the night with pain. [lxix]
The second plaintiff, Ms Evans, said that for a period of some weeks or months after the first plaintiff’s elbow injury, she had to help him put on his shirt, and assist him to do anything where he had to reach, possibly, for example, doing up shoes. In the beginning, he was not able to do housework and look after the children. She observed that he lost confidence and became depressed and moody, drinking more alcohol than before. She found it hard to deal with his depression. The fact that the first plaintiff could not stretch out his arms changed, in a negative way, how he participated in their sexual relationship. [lxx]
While I accept generally the evidence of the second plaintiff, Ms Evans was very vague about the period during which the first plaintiff’s elbow injury compromised his ability to help in the house and look after the children. On her evidence it is probable that the period when the first plaintiff required her physical help putting on his shirt and reaching for things, and when their sexual relationship was compromised because of physical limitations, was over some weeks, and at most over a few months.
The first plaintiff was born 13 April 1966. He left school about 1982 without finishing year 9. His first job was working as a labourer with his father who at that time was in the business of erecting sheds, garages, carports and verandahs.[lxxi]
The first plaintiff worked with his father on and off for about seven years, until his father hurt his back and was unable to continue.
After a break of 1-2 years, the first plaintiff did a course as an abattoir worker and obtained work at the Wodonga Meat Works. He worked there for about 9 or 10 months, until being retrenched. While working at the Wodonga Meat Works, the first plaintiff had an injury to his foot and hurt his back. The first plaintiff had no other work before moving to Adelaide with his family in 1994. He did not have employment at the time of the injury to his elbow.
At the time of the incident, the first plaintiff said he was receiving a supporting parent’s benefit. His de facto wife of some 11 years, Ms Evans, had moved out a few weeks before to his parent’s house across the road, because of arguments. She did nevertheless, spend time, including overnight, at their home. He could not remember when they had resumed living together.[lxxii] He said in giving evidence about the effect of his injury on his day-to-day life, that he had had to sleep on the couch, to avoid disturbing Ms Evans at night, with the pain in his arm.[lxxiii]
He said that on the day of the incident in which his arm was injured, that he had been about to take up work delivering pizzas.[lxxiv] In cross-examination, he accepted that he had never had a driver’s licence. He said that he planned to get one in order to do pizza deliveries. All he had to do was to go in and get one. He could have had it within 24 hours. He later admitted that, in fact, because of a number of interstate driving licence disqualifications or suspensions, he may not have been able to obtain a driver’s licence, but had made no enquiries at the time. He said that he had to show a licence before he started working. He admitted that he did not know whether he would have got the job.[lxxv]
The second plaintiff, Ms Evans, was working at the Richmond Hotel and the first plaintiff was looking after the children.[lxxvi] Ms Evans, had obtained work after the birth of their third child, Ricky, who was born in Adelaide on 14 August 1994. In the year ended 30 June 1995, Ms Evans earned a total of $9,526 gross from her work at the Richmond Hotel.[lxxvii] In addition she received $3,689 by way of a pension or other benefit.
Ms Evans said that she knew that the first plaintiff did not have a driving licence when he was contemplating work delivering pizzas. She knew that some people with jobs as pizza delivery drivers did not show their licences.[lxxviii] She said that if he had obtained that work, she would have considered leaving her employment.[lxxix]
The first plaintiff said he was unable to look after the children after the injury to his elbow. He said that Ms Evans had to stop work and was out of work for about 4 years.
Ms Evans could not remember when she began work after the birth of her third child in August 1994, and could not remember when she stopped work after the injury to the first plaintiff’s elbow. Ms Evans tax return for the financial year ended 30 June 1996 shows a gross salary from her work at the Richmond Hotel in the sum of $10,022. In addition she received in that year a pension or other benefit of $5,808. In each financial year she received a sole parent rebate.[lxxx]
I do not accept that Ms Evans had to stop work after the injury to the plaintiff’s elbow. I do not accept that Ms Evans was unable to seek employment for a period of four to five years after the first plaintiff’s elbow injury because the first plaintiff was not able to look after the children. The evidence does not support that.
In April 1997, the first plaintiff was advised by Mr Waters to undergo an elbow operation. The first plaintiff decided not to go ahead with that treatment. The first plaintiff said that he had been advised that he could lose feeling in his right arm if he undertook the operation and he did not want to take that chance. In my opinion, the first plaintiff cannot be criticised for not having that surgery.
The first plaintiff said that because of the injury to his right elbow he was unable to sign up with the local football club which was his intention before it happened, and he was not able to ride a motorbike as he had previously. He was unable to water ski after the accident because of his arm.[lxxxi] He has difficulty lifting heavy things and after using his right arm for a period of time, he gets pins and needles and he can feel the elbow clunking. He feels a nagging pain from time to time. After moving to Albury/Wodonga in 1997, he did try work for four days with Albury Building Service. He found that because of the pain in his arm he could not continue. The work involved renovating houses.[lxxxii] He cannot do boxing anymore and is embarrassed by the appearance of his right arm, which is thinner than his left.

The first plaintiff had had lower back problems since his work at the meat works. From time to time his back would jam. His back would hurt for a few days and then recover. He had a friend who was able to “put his back in”, which relieved the pain.[lxxxiii]
The first plaintiff was seen by Dr Graham Wright, Occupational Physician, on 22 July 1999. The first plaintiff told Dr Wright that Ms Evans had had to give up her work in the hospitality industry to look after the children because he could not do so and that he had slipped into alcohol and amphetamine abuse. The first plaintiff told Dr Wright that he used amphetamines for about two and a half years injecting on a frequent basis and that he acquired hepatitis C during that time. In fact The Queen Elizabeth Hospital notes for the first plaintiff indicated diagnosis of hepatitis C on 2 June 1997. The first plaintiff gave a history of heavy alcohol use as well.
As a result of the history given to Dr Wright, Dr Wright formed the opinion that in the course of the injury, the first plaintiff developed drug and alcohol dependency, extinguishing any residual capacity for work. Dr Wright noted the likelihood of a persistent loose body in the joint. His opinion was that the first plaintiff would be severely restricted in lifting, carrying, pushing and pulling with the right arm, with pain at the extremes of movement. Dr Wright noted that the first plaintiff’s current alcohol abuse rendered him unfit for all work.[lxxxiv]
Dr Wright reviewed the first plaintiff on 13 March 2001. At that time he noted that there had been no further treatment since his first report and that the first plaintiff had decided not to proceed with an operation to the right elbow. It seemed that amphetamine use had ceased and alcohol use had reduced. Dr Wright believed that the first plaintiff was fit for light employment avoiding work requiring strong or repetitive gripping or lifting more than 10 kilograms and any work that required working with out-stretched arms. In Dr Wright’s opinion the first plaintiff has a permanent residual disability equivalent to twenty five percent impairment of the right arm at or above the elbow. The intermittent symptoms and occasion disability of the lower back associated to a good response to minimal treatment did not meet an assessable level of disability. In any event, the lower back difficulty pre-dated the incident of 16 August 1995.
Dr Wright said in his evidence that if it were the case, contrary to the history he obtained, that the first plaintiff had had limited employment in the period before the incident and in addition, was not about to start work as a pizza delivery driver when the accident happened, he would have to conclude that work and the ability to gain self-esteem and confidence through work was a much less important thing to Mr Millar than he had assumed.
In Dr Wright’s opinion, the first plaintiff’s condition cannot be entirely explained on the basis of any structural abnormality to his elbow. It is likely that there are other factors, psychological and social, contributing to his pain and disability.
Mr Peter Fry, Orthopaedic Surgeon, saw the first plaintiff on 2 November 2000. The history given to Mr Fry was incorrect in a number of respects. In particular, the first plaintiff told Mr Fry that he had a normal back before 16 August 1995. He also said that he had last worked some twelve months before the incident. The first plaintiff told Mr Fry that since the elbow problems, he had only done a few days voluntary church work, moving wheelbarrow loads of concrete. It had made the elbow very sore the next day, taking a week or two to settle afterwards. It was however mainly his lower back that restricted him in the heavy work. He said that he had later done a furniture removal computer course, but found it difficult because he could not sit for long due to his back troubles. Mr Fry noted a loss of elbow extension as a result of the injury, a permanent impairment amounting to some 25 percent loss of function of the arm at or above elbow level. Mr Fry’s opinion was that Mr Millar was incapacitated for employment because of his elbow at the time of the accident and after it for at least some 7 months, then to a lesser degree as time went on. In his opinion it was the plaintiff’s back which apparently incapacitates him, Mr Millar describing his back as the present major problem at that time as far as physical work was concerned. The back problem made the first plaintiff unsuited in Mr Fry’s opinion at least for the heavier types of manual work with a lot of bending and lifting the elbow has a much lesser restricting effect, making it difficult for him in situations where an extended arm reach is necessary or a lot of heavy lifting.
Mr Fry reviewed the first plaintiff on 11 April 2002. In broad terms, Mr Fry’s opinion was unchanged except to note that surgery to the elbow might improve range of movement, and as more time passes the less possible a good improvement will be. In Mr Fry’s opinion the first plaintiff’s capacity for employment depends upon what type of employment is undertaken. He said that for most forms, the first plaintiff is quite reasonably capable.
Mr Eriksen, Orthopaedic Surgeon, saw the first plaintiff on the same day as Mr Fry, 11 April 2002. Mr Eriksen noted a degree of non-compliance in treatment options, but perceived it may be understandable in the circumstances of the first plaintiff’s psycho-social presentation and past history of medical morbidity. In Mr Eriksen’s opinion, the first plaintiff had a capacity for employment, limited if undertaking unrestricted gripping and lifting with the right arm. In his opinion, having regard to the first plaintiff’s age, qualifications and past work experience, the first plaintiff would be able to return to full time working employment with some degree of permanent modification. Mr Eriksen found no clinical evidence to indicate any significant structural abnormality or persistent physical injury of the lower back.
The first plaintiff saw Dr Keith Le Page, Psychiatrist, on 9 January 1998. The history the first plaintiff gave to Mr Le Page contains material differences from the evidence. The first plaintiff told Dr Le Page that the elbow injury had wrecked his life, with Ms Evans leaving him for three months after his injury because she was forced to give up her job, taking the children, whom he did not see for a period of three months. There is no evidence of that at all. The first plaintiff did not tell Dr Le Page of alcohol and amphetamine abuse, or of contracting hepatitis C in June 1997. He told Dr Le Page that he was depressed, that he had to sleep on a couch with his arm on pillows. He did not tell Dr Le Page that the reason he was sleeping on a couch was to avoid disturbing his de facto wife, Ms Evans, with whom he was living at the time. Dr Le Page said that it was obvious that the first plaintiff was very dependent on his body for his emotional well being and he had reiterated that he was not an intelligent person. In Dr Le Page’s opinion, the first plaintiff was suffering from an adjustment disorder because of the chronic elbow disability. The primary psychiatric symptom was depression as a result. In Dr Le Page’s opinion, the first plaintiff was not fit for work at that time, because of a physical rather than any psychiatric disability.
When the first plaintiff saw Dr Le Page again on 22 June 1999, it appeared that his condition had deteriorated, the plaintiff drinking alcohol to excess. Dr Le Page prescribed an anti-depressant for the first plaintiff. In his opinion, the first plaintiff’s mental state was largely dependent on whether he could gain relief from chronic pain and disability in the right arm.
Dr Le Page interviewed the first plaintiff again on 2 November 2000. Mr Millar told Dr Le Page that he continued to drink heavily and daily as an antidote to his mental state. Mr Millar told Dr Le Page that he had not continued taking the anti-depressant medication. He said that his depressed state had markedly improved and he did not feel he required any anti-depressants. He had been alcohol free for a period of 39 days until the day before he saw Dr Le Page, but had resorted to alcohol then and that day because he was bored. In Dr Le Page’s opinion, because of a personality weakness, the first plaintiff is likely to continue to experience symptoms, because it is unlikely he will find suitable employment with his residual physical disability. Finding suitable light employment that he could manage, would, in Dr Le Page’s opinion be the best therapy for the first plaintiff. However, because of limited personal attributes, physical and psychological, in Dr Le Page’s view, that was unlikely to happen.
The first plaintiff in Dr Le Page’s opinion suffered a partial loss of working capacity because of his injuries, but his poor personality attributes add another dimension to his handicap. The psychiatric component of his overall handicap would constitute about thirty percent incapacity, because the nature of his personality and its limitation would make it difficult for him to adjust in a wide range of employment possibilities. The prospect of the first plaintiff returning to any form of gainful employment is, in his opinion, limited.
Dr Chris Branson, Psychiatrist, saw the first plaintiff on 13 March 2001. He told Dr Branson that he was no longer depressed and that was evident from Dr Branson’s own observations during the interview. The first plaintiff expressed a concern about continuing pain in his arm and a sensitivity about his disability and the fact that he was not working. He told Dr Branson that he was keen to get appropriate work in the future and was reasonably optimistic about that.
In Dr Branson’s opinion, it is reasonable to say that Mr Millar was suffering from an adjustment disorder with depressed mood for some period of time after the injury until perhaps 1998. However the severity and constancy of this is highly uncertain. It appears to have been mild to moderate in severity and there would have been times when this affected him very little. At the time of interview on 13 March 2001, Mr Millar was not suffering from any psychiatric condition. The adjustment disorder with depressed mood was indirectly related to the accident, in that it was reaction to the pain and disability that he suffered as a result of his injury. Dr Branson noted a significant degree of educational handicap, an intellectual capacity of low average at best, factors which may limit the first plaintiff’s capacity to find work.
The First Plaintiff
Pain and Suffering and Loss of Amenities
In summary, the first plaintiff experienced acute pain and distress associated with a fracture dislocation of the elbow, and associated moderate hand swelling and crush injury. The evidence does not support a finding of any back injury or pain occurring as a result of the incident of 16 August 1995.
It is likely that the pain and immobilisation of the arm in a sling continued for some weeks, or possibly months, making it difficult for the plaintiff in daily living activities, including attending to the children, dressing himself and engaging in sexual intercourse. It is unlikely that the first plaintiff would have been completely unable to do those things. There may have been some ongoing compromise to recreational activities, such as boxing, water skiing and football, although the evidence as to how active the first plaintiff was in those activities before the injury to his elbow is slight.
A fixed flexion deformity of the elbow had developed by February 1996 and has never improved. It is unlikely to improve in the future. The first plaintiff did not help himself as much as he might have, but his poor attendance at medical appointments is explained by his personal make-up. His refusal to undergo surgery is understandable, and in the circumstances of his medical history, reasonable. The first plaintiff’s right arm is noticeably thinner than his left and causes him embarrassment.
The first plaintiff responded to the pain of his injury with the use of alcohol and amphetamines to excess, developing Hepatitis C in 1997. He suffered from an adjustment disorder with depressed mood, probably until 1998, of mild to moderate severity, and in all likelihood affecting him very little at times.
For past pain and suffering and loss of amenities, I allow $30,000. For future pain and suffering and loss of amenities, I allow $10,000.
Interest on past non-economic loss
The first plaintiff is entitled to interest on this heading of loss.[lxxxv] Interest is allowed on only the past loss on the basis that the first plaintiff has been kept out of his money. [lxxxvi] In this case, no reason has been suggested why the period of the calculation should not date back to the time of the injury. [lxxxvii] The interest rate for the calculation is 4 percent per annum.[lxxxviii] There should be a discount to take account of the accumulation of the principal sum over the period of the calculation. Accordingly, the calculation (i.e. $30,000 x 4% per annum x 7.83 years ÷ 2), results in an allowance of $4,700 for interest.
Loss of Earning Capacity
The first plaintiff was totally incapacitated for work after the injury because of physical restrictions to the use of his right arm and then because of drug and alcohol dependency. That incapacity probably persisted to around the end of 1999.
After that time, the first plaintiff has continued to be partially incapacitated for employment on account of the elbow injury, which has been assessed as a 25 % impairment of the right arm at or above the elbow. The evidence is that the first plaintiff suffered from lower back pain before the elbow injury and that it was not affected by the event causing the elbow injury. In addition, the back pain has at times been independently the cause of incapacity for work, and at other times is not incapacitating at all.
It is not possible to be precise about when the first plaintiff may have resumed the capacity to engage in some sort of employment. Doing the best I can, it seems that since the beginning of 2000, the first plaintiff has had the capacity, from both a physical and mental point of view, to engage in full time employment, with some degree of permanent modification, avoiding work requiring strong or repetitive gripping, lifting more than 10 kg and any work requiring working with outstretched arms.
What Dr Le Page has described as poor personality attributes add another dimension to the difficulties the first plaintiff is likely to encounter obtaining suitable employment. Those attributes are longstanding factors in the first plaintiff’s earning capacity, in all likelihood affecting his earning capacity from the beginning of his working life. It is doubtful, on the evidence, that the first plaintiff would have been in employment, regardless of the injury to his elbow in August 1995.
It is therefore difficult to quantify the extent to which any compromise to earning capacity on account of the injury to the elbow has been and will be the cause of financial loss.[lxxxix]
I take as a starting point the total number of years of the first plaintiff’s potential working life before the elbow injury, 14 years, and take into account the number of years the first plaintiff was in fact in employment during his working life prior to August 1995, say 8 years, or about 57%. The first plaintiff earned $340 while working for a few months at the Wodonga meat works. That is the only evidence in relation to a wage earnt by the first plaintiff at any time.
In the period between the injury to his elbow and the present time, I assume that at best, the first plaintiff would have been employed only 57% of that time. The most favourable valuation of his lost earning capacity in that time is:
7.83 years x 52 x 57% x $340 = $78,908 net.
That estimate must be reviewed in accordance with the evidence.[xc] I note that in that period the first plaintiff claimed from an insurer for incapacity for work due to a heart condition. I do not accept that the first plaintiff would have in any event achieved the level of employment open to him in the past only through work provided almost exclusively by his father. The estimate must be heavily discounted for the contingency that the first plaintiff would not have found any work.
In the circumstances, I allow $30,000 for past loss of earning capacity.
Interest on Past Loss of Earning Capacity
Interest is allowed on this past component of economic loss. The period of the calculation is from the time the liability to pay arose, namely, the date of the injury to judgment. Since the allowance for past loss of earnings is calculated on the value of the losses as they occur, the prevailing commercial interest rates are appropriate.[xci] The appropriate rate of interest is 7.6 percent, being an approximate average for the commercial rates prevailing over the period from 1^st March 1995 to the present time.[xcii] Interest on damages prior to judgment is awarded “to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period”.[xciii] Accordingly, the calculation, discounted over the period accruing, (i.e. $30,000 x 7.6% per annum x 7.83 years ÷ 2) results in an allowance for interest of $8,900.
Future Loss of Earning Capacity
There is no evidence on which to make any precise calculation in relation to future loss of earning capacity, as it might be productive of financial loss. Any allowance can only be made as a very general estimate.
I allow $20,000 for future loss of earning capacity, to take into account an uncertain period over which the first plaintiff might have maintained a working life in any event, personal attributes limiting his employment capacity and some residual capacity for work.
Gratuitous services - Griffiths v Kerkemeyer Damages
The first plaintiff is entitled in his claim to recover in damages an allowance for the care and attention provided for him by his partner, Ms Evans.[xciv] The services provided by Ms Evans were minimal. I allow $500, inclusive of interest.
Future Medical Expenses
The first plaintiff may require analgesia in the future for pain. There is no evidence as to the amount he is likely to need on an ongoing basis, nor of the cost of analgesia. There is no evidence that he will require treatment in the future. I make a small general allowance for future medical expenses of $500.
Special Damages
Special damages are agreed in the sum of $2,183.20, of which none has been paid.[xcv]
The Second Plaintiff
Loss and/or impairment of consortium
Section 33 of the Wrongs Act (SA) 1936, confers a right on a wife for the loss or impairment of consortium. “Wife” includes a putative spouse.
This cause of action entitles a spouse to recover damages for the lost or impaired comfort, society and fellowship previously provided by the other spouse and includes damages for the loss of ability of the injured spouse to perform household duties.[xcvi] In particular, it is confined to “material or temporal loss capable of estimation and money”.[xcvii]
There are two aspects;
·the loss which the second plaintiff suffered as a result of the first plaintiff being unable to carry out services around the house; and
·the loss or impairment of his society, companionship and comfort including the deprivation of and/or diminution in the quality of their sexual relations; [xcviii]
The evidence does not support a finding that the first plaintiff was unable to carry out services around the house and care for the children as a result of the injury to his elbow for any but a short period. Any impairment of the plaintiffs’ sexual relationship was, on the evidence, only slight. In any event, at the time of the injury, the plaintiffs’ evidence was that they were not living together, although Ms Evans did go to the first plaintiff’s home to see the children and occasionally stayed overnight. Neither was able to say when Ms Evans moved back from living with the first plaintiff’s parents. The evidence suggests that in any event, loss or impairment of consortium was not significant and was limited to a period of a maximum of around four to five years. In assessing damages under this heading, I bear in mind that the damages do not include compensation for feelings of emotional distress which result from having an injured spouse.

I make a small allowance for loss of consortium of $1000, inclusive of interest.
Claim for Loss of Income
There is doubt about the basis for a claim on the part of the second plaintiff for the loss of her income. The first plaintiff’s claim includes a claim for his loss of earning capacity, regardless of the fact that he had chosen to look after the children while the second plaintiff worked. In any event, as a matter of fact, I have not had to consider the basis for the claim of loss of income of the second plaintiff. I have found that the second plaintiff did not give up her employment on account of the injury to the first plaintiff.
Summary
The First Plaintiff
Pain and Suffering and Loss of Amenities
Past  $30,000.00
Future  $10,000.00
Loss of Earning Capacity
Past  $ 30,000.00
Future  $ 20,000.00
Griffiths v Kerkemeyer  $500.00
Future Medical Expenses  $500.00
Special Damages   $2,183.20
Lump Sum in respect of Interest                   $13,600.00
Total  $106,783.20
The Second Plaintiff
Loss of Consortium  $1000
I will hear the parties on the question of costs.
[i] Jones v Bartlett (2000) 205 CLR 166; 184-185, 190-193, 194, 213-216, 240-241, 252; (2000) 176 ALR 137 at 148-149, 153-155, 156, 172-174, 194, 203
[ii] Ibid, at 177; Watson v George [1953] SASR 219 at 223-224
[iii] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 349-355, 362-363, 366-370
[iv] Ibid, at 368
[v] Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121
[vi] Calin v The Greater Union Organization Pty Ltd (1991) 173 CLR 33 at 38, per Mason CJ, Deane, Toohey & McHugh JJ
[vii] Watson v George (1953) 89 CLR 409 at 426
[viii] (1953) 89 CLR 409 at 424-425
[ix] Calin, above, at 44, per Brennan J; Alagic v Callbar Pty Ltd (2000) 10 NTLR 86 at 91-94
[x] Wheat v E Lacon & Co Pty Ltd [1966] AC 552, at 574-575, 577-580, 583-594
[xi] Government Gazette, 23 November, p 1412
[xii] Exhibit P4, photograph 2
[xiii] T 10, 42-45
[xiv] T 11
[xv] Exhibit P5
[xvi] Exhibit P4
[xvii] T 155
[xviii] T 41, 65, 115, 119, 120, 121, 127
[xix] T130-132
[xx] T 60-62
[xxi] T 119
[xxii] T 122, 127, 128
[xxiii] T 125
[xxiv] T 128
[xxv] T 47, 63, 137, 153, 155
[xxvi] T 125
[xxvii] T 126
[xxviii] T 118, 140
[xxix] T 137
[xxx] T 134, 137, 154, 155
[xxxi] T 203-205
[xxxii] T 186-189; Exhibit P5, photographs A and F
[xxxiii] T 388-394
[xxxiv] T 392, 442-450
[xxxv] T 462-463, 487-488
[xxxvi] T 486
[xxxvii] T 474
[xxxviii] T 491
[xxxix] T 489
[xl] T 481-482
[xli] T 466-467
[xlii] Exhibits D 41, D 42
[xliii] T 644-650
[xliv] T 650-653
[xlv] T 653-655
[xlvi] Exhibit D1-28
[xlvii] T 661-662, Exhibit D4-45
[xlviii] T 666-669, 706, Exhibit P4, photo 3
[xlix] T 672-675, 734, Exhibit D4-46
[l] T 337
[li] see Exhibit P 4, photograph 4
[lii] T 522
[liii] T 542-3, 552
[liv] T 523-526
[lv] T 529
[lvi] T 534
[lvii] T 535, 550
[lviii] T 549
[lix] T 570-572
[lx] T 579-580
[lxi] T605-6
[lxii] T 67-76
[lxiii] T 78, 89
[lxiv] T 85 et seq
[lxv] Ramsay v Watson (1961) 108 CLR 642 at 649; Geste v Pereira (1991) 161 LSJS 260; Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85
[lxvi] T 366-367, 635, Exhibit 17A
[lxvii] Schellenberg v Tunnel Holdings Pty Ltd, above, at 134-141, 161-165
[lxviii] T16-17; Exhibit P 21
[lxix] T 16-17
[lxx] T 259-263
[lxxi] T 19, 193
[lxxii] T 33
[lxxiii] T 24
[lxxiv] T 18
[lxxv] T 99-104
[lxxvi] T 20‑22
[lxxvii] T 271- 277; Exhibit D1-15
[lxxviii] T 279
[lxxix] T 266
[lxxx] T 263; Exhibit P13;
[lxxxi] T26-27
[lxxxii] T 23, 29
[lxxxiii] T 146-148
[lxxxiv] P16
[lxxxv] s.39 of the District Court Act1991
[lxxxvi] Thompson v Faraonio (1979) 24 ALR 1
[lxxxvii] Wheeler v Page (1982) 31 SASR 1
[lxxxviii] MBP (SA) Pty Ltd v Gogic (1990-91) 171 CLR 657
[lxxxix] Graham v Baker (1961) 106 CLR 340 at 347; Mann v Ellbourne (1973) 8 SASR 298; Medlin v SGIC (1995) 182 CLR 1
[xc] Bresatz v Przibilla (1962) 108 CLR 541 at 543; Campbell v Nangle (1985) 40 SASR 180 at 186-187
[xci] Tripodi v Leonello (1982) 31 SASR 9 per Jacobs J at 17
[xcii] 3^rd Schedule Supreme Court Rules
[xciii] MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663
[xciv] Griffiths v Kerkemeyer (1977) 15 ALR 387; Van Gervan v Fenton (1992) 175 CLR 327
[xcv] T 666
[xcvi] Toohey v Hollier (1955) 92 CLR 618
[xcvii] Toohey (above) at 628
[xcviii] Kealley v Jones (1979) 1 NSWLR 723 per Samuels JA at 750-1

[2003] SADC 96

20 June 2003