Morgan v Owners of Strata Plan 13937 & anor

[2006] NSWSC 1019

CITATION:	Morgan v Owners of Strata Plan 13937 & anor [2006] NSWSC 1019
HEARING DATE(S):	21/11/05-24/11/05, 13/12/05
JUDGMENT DATE :	29 September 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Brereton J
DECISION:	Judgment for the plaintiff for $210,000, and costs.
CATCHWORDS:	TORTS – NEGLIGENCE – Dangerous Premises – Occupier’s Liability – Home unit body corporate – common areas – tiled landing at front entrance – whether failure to remove carpet off-cuts on which plaintiff tripped negligent – held, in the circumstances it was not – whether failure to provide external slip-resistant doormat on tiled landing on which plaintiff slipped negligent – held, in the circumstances it was – contributory negligence – assessment of damages.
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), s 5B Evidence Act, s 108
CASES CITED:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Hackshaw v Shaw (1984) 155 CLR 614 Jones v Bartlett (2000) 205 CLR 166 Tame v State of New South Wales (2002) 211 CLR 317 Cafest v Tombleson [2003] NSWCA 210 Vairy v Wyong Shire Council [2005] HCA 62 Wilkinson v Law Courts Limited [2001] NSWCA 196 Woods v Multi-Sport Holdings Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Thomas Patrick Morgan (plaintiff) The Owners of Strata Plan No 13937 (first defendant) Dennis Hales Strata Plan Management Pty Limited (second defendant)
FILE NUMBER(S):	SC 20049/03
COUNSEL:	T D F Hughes (plaintiff) A D M Hewitt SC (defendants)
SOLICITORS:	G H Healey & Co - Ashfield (plaintiff) Curwood & Partners (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BRERETON J

29 September 2006

20049/03 Thomas Patrick Morgan v Owners Strata Plan 13937

JUDGMENT

1 HIS HONOUR: It was raining heavily in Kogarah on the evening of 5 March 2000. The plaintiff Thomas Patrick Morgan, who had just returned to his unit at 1/42 Premier St, realised that he had left his car unlocked. As he exited through the front door of the home unit block, he fell down the steps, injuring his back. He claims that the defendant body corporate (“the Owners”), in which is vested the care management and control of the common property in the block, failed to take reasonable precautions for his safety and is responsible for his injuries. The Owners deny breach of duty, and say that Mr Morgan caused or contributed to his own injuries.

2 The issues are:-

· How did the accident occur?

· Was there a breach of duty by the Owners?

· Was there contributory negligence by Mr Morgan?

· What are Mr Morgan’s damages?

How did the accident occur?

3 Mr Morgan had been visiting friends at Bexley. He left them at 8.30 pm and drove home, arriving at the front of the block of flats in which he lived at 8.45pm. He parked in the street, and proceeded to his unit. It was raining very heavily. He walked up the stairs on to the landing at the front door, took his keys from his pocket, opened the front (security) door to the block, walked through and let it close behind him; it was a self-closing door. He walked the short distance along the foyer to the door to his unit, which was located on the ground floor, opened it, walked in and closed it behind him. Then he telephoned his girlfriend, and told her that he would not be coming over to see her, because it was raining too heavily. He was on the phone to her for ten to fifteen minutes.

4 Mr Morgan then realised that he had not locked his car, because he had originally entertained intentions of visiting his girlfriend. He left his unit, pulling the door closed behind him, and entered the foyer. He was wearing a shirt, jeans and Adidas Asic Gel joggers, and had neither raincoat nor umbrella. He looked towards the front security door, which he noticed was open; he saw the outside light shining in, and observed that the rain was coming down quite heavily. He says he walked towards the security door. He was puzzled why it was open; he did not see anything holding it open, and presumes that he did not see the carpet off-cut that he says he later realised was doing so, because the light was coming in from outside.

5 Mr Morgan says that when he was halfway through the security door, his left toe caught something, and he stumbled forward quickly. He tried to bring his left foot forward “to take away the stumble”, but it kept slipping, eventually coming to ground 500 to 700cm outside the security door, on the wet tiles of the landing. He tried to bring his right foot forward, to regain his balance, but his left foot kept slipping. Then his right foot made contact with the wet tiles as well, and he began to slide forward, and to fall backwards. He tried to twist his right arm around to the left, to grab the handle rail, but being unable to do so, he kept sliding to and over the edge of the steps, and speared down the stairs, feet first. His feet hit the footpath, to the right-hand side of the steps as one looks down.

6 Mr Morgan says that while he can remember what happened, “once I hit the ground the pain hit me and I was blank for a couple of seconds”. His next recollection was of some people lifting him up to the landing at the top of the stairs. He says that as they did this, he looked down and saw a carpet off-cut under the door, which he assumed was what had caught his toe and caused him to trip:-

A. What I can remember after that was these people picking me up and they were lifting me up, and as they lifted me to the top of the stairs I looked down and seen the carpet under the door which caught my toe, and I was trying to work out what happened and with that the police told them to put me straight back down.

Q. Where were you put down?
A. On the top of the landing.

Q. What were you noticing, if anything, about your body at this stage?
A. I was in great pain at the lower part of the back, around this region here (indicating).

Q. Indicating the bottom of the lumbar spinal area.

7 Police were in attendance co-incidentally, but there was some confusion as to whether Mr Morgan was an intruder.

A. They then sort of started questioning me in a fashion that I didn't understand because I was sort of half dazed. I was speechless because I could not talk because I lost me breath because I was in that much pain, so all I could do was point and try to point to my wallet and say "my wallet", and they investigated when they opened up they seen who I was and then they realised I had just come out of my front door.

Q. And what happened then?
A. Then they got on the radio and rang the ambulance and told me just to stay still and not move an inch, which I could not move anyway.

8 An ambulance attended the scene. Mr Morgan says that he remembers the ambulance paramedics being there, but was in great distress and pain, and that he does not recall what he said to them. The paramedics recorded:-

Pt states he was running to car & slipped over 5 x steps landing on feet on concrete.

9 There are two significant factual questions: was Mr Morgan running at the time, and did he trip on a carpet off-cut that was holding open the front security door to the unit block. Resolution of those questions requires consideration of subsequent accounts of the accident given by Mr Morgan.

10 The ambulance conveyed Mr Morgan to St George Hospital, where the admitting doctor recorded:-

Pt tripped down 5 steps landing on feet.

11 On 6 March 2000, the day after the accident, Mr Morgan spoke to his mother on the telephone. She gave the following evidence, in chief:

A: He told me that he had fell down. He was coming out a door and tripped on a carpet and slipped and lost his footing and fell foot first down on to the ground and collapsed with pain … .

12 She repeated this when asked about it in cross-examination:

Q: Yes. Just what he told you about the accident. That’s all?

A. Right. My son rang me the next morning, which was 6 March 2000 right. And he said he had tripped on a carpet, lost his balance, fell feet first down the steps and collapsed ….

13 When it was put to her that by reason of it being over five years since the accident that she could not be sure about what it was her son told her about the accident at that time, she replied:

A: I’m quite positive what he said to me at the time ….

14 While her evidence favours Mr Morgan’s version, it is conceivable that, insofar as she attributes to her son, on the morning after the accident, a statement that he had tripped on a carpet, it was reconstruction. Mrs Morgan said, in cross-examination, that she had seen her son’s solicitors who took a statement from her, perhaps a year or two after the accident, but it was clear that she had no real recollection of this timeframe at all. She could not remember when the solicitors had first mentioned to her the issue of a “mat”, but she acknowledged: “Well, a mat has been brought up, yes, this week, yes”. But she maintained that she was positive about what her son had said to her on the phone, because she was so thankful that he was not more seriously injured; although she accepted that what was important to her about the conversation was the fact that he had been hurt (as distinct from the mechanics of his fall).

15 Mr T D F Hughes, who appeared for Mr Morgan, argued that as Mr Hewitt, for the Owners, did not call for the written statement she had given the solicitors, which was mentioned in her cross-examination, in order to attempt to contradict her evidence, she might more readily be believed; but Mr Hughes could have tendered the statement, which would have been admissible under Evidence Act, s 108, and in those circumstances, although I give this practically no weight, if any inference were to be drawn it would be adverse to the party who knew the contents of the statement – that is, the plaintiff. So while Mrs Morgan’s evidence lends some support to Mr Morgan’s version, it is far from conclusive.

16 Thereafter, Mr Morgan gave descriptions of his accident to several doctors, a chiropractor, his lawyers, and a physiotherapist. On 6 March 2000 his general practitioner, Dr Nigro, obtained a history that “He had slipped and fallen down stairs and injured his lower back”. On 20 March 2000, Mr Zapk, Chiropractor, recorded a history that Mr Morgan “fell down stairs (5-6) – hit heel & then fell on back –“. On 10 April 2000, Dr Pattinson, Orthopaedic Surgeon, obtained a history that “He fell from a height of approximately 1 metre five weeks [prior to seeing him]”.

17 On 3 May 2000, in a letter to the Managing Agents, Mr Morgan’s solicitors wrote that “He slipped on the tiles at the entrance which were wet at the time due to rain blowing in over them”. On 3 August 2000, his solicitors responded to a request for particulars from the Owners’ solicitor, as follows:-

As he travelled across the tiled entrance, which was wet due to the rain that had blown in he slipped and shot out over the steps leading to the pathway.

Our client landed on his heels, which slipped out. Our client came down on his back on the pathway.

18 In a statement Mr Morgan gave to his solicitors sometime after instructing them - the similarity of its contents to those of the letter of 3 August 2000 suggests that the statement was given at about that time - he described the accident in the following terms:

5. As I travelled across the tiled entrance which was wet due to the rain which had blown in. I slipped and shot out over the steps leading to the pathway.

6. I landed on my heels which slipped out. I came down on my back on the pathway.

19 Kevin Hewson, Physiotherapist, obtained a history from Mr Morgan on 11 March 2002 “that on 5th March 2000 he slipped on wet tiles injuring his lower back”. On 11 September 2002, Mr Morgan presented to St George Hospital for pain management; he gave a history that he had “slipped and fell down stairs at home – tiles”, and Dr Vasic, Pain Management Specialist, obtained a history that “in March, 2000 patient states that he slipped and fell down some stairs whilst at home. They were tiled steps”.

20 Thus, prior to early 2003, the only reference to a trip in any of the histories that Mr Morgan gave – other than his telephone conversation with his mother - is the entry by the admitting doctor at St George on the night of 5 March 2000. No other practitioner elicited a history of a trip preceding the slip on the tiles. According to Mr Morgan, this was because until then, he had seen the trip as an insignificant component of the accident, which he attributed mainly to slipping on the tiles rather than to the initial trip:-

Q. After you had recovered a little from your accident you went along to see Healey & Co, your solicitors, is that right?
A. Yes.

Q. I don't want to know what you said to them but is it the fact you gave some instructions to them about how this accident happened; do you agree with that?
A. Not a full detail of it.

Q. No, but I take it you were asked what happened to you and you explained it?
A. Not in full detail.

Q. But could we take it that there is one thing you would have been at pains to tell your own solicitors and that is that you had tripped on a mat at the door, is that right?
A. At the time I didn't think it was relevant. I didn't think it was important at the time.

Q. You had an accident which takes you along to see a solicitor?
A. Mmm.

Q. And you blame the body corporate, don't you, for leaving pieces of carpet around the foyer of the building?
A. Mmm.

Q. Your complaint is that that has led to your accident?
A. Yes.

Q. That is what took you to your solicitor, isn't it?
A. No.

Q. You didn't go to see your solicitor because you had just because you had a fall, you went to see your solicitor because you had a fall through the acts of the body corporate in leaving carpet in the foyer where you could trip?
A. I went to the solicitor because I had sustained pain, I sustained injury to me back, and not knowing anything about the legal side of it all and the liability of it, I just it was just commonsense prevailed in my mind.

Q. If you had tripped over inside your own unit, you wouldn't have gone to see a solicitor, would you?
A. Well, the point is I wouldn't trip over something in my own place.

Q. You went to see a solicitor because you blamed someone for this accident, didn't you?
A. In relation to that, I am not blaming anyone.

Q. Don't you say this accident happened because the body corporate was at fault; is that right?
A. In saying that, I don't know how these matters operate, all I know is we paid public liability and the accident happened the way I said it happened and that's all I know.

Q. It happened, you say, because you tripped on a mat?
A. Yes.

Q. In the foyer?
A. Yes.

Q. And so that was the first thing you would have been at pains to tell your solicitor?
A. Not necessarily.

Q. Did you tell him or didn't you?
A. No.

…

Q. Did you say to them in some date between May and August 2002 that on 5 March you were leaving from the front entrance of 32 Premier Street to lock your car?
A. I might have, yes.

Q. Did you say as you travelled across the tiled entrance which was wet due to the rain that had blown in you slipped and shot out over the steps leading to the pathway?
A. Yes, I would have said something like that.

Q. Might it be the case that you didn't mention to them the mat?
A. It might have been the case.

Q. Even though you in your own mind blame that for your accident?
A. At the time I didn't think the mat was relevant to my accident.

HIS HONOUR: Q. When did you first think the mat was relevant to your accident?
A. When someone came out with me and went through the motions what actually happened, I showed them.

21 On 28 January 2003, Mr Morgan attended at the premises with Mr Spencer, who was retained by his solicitors as an expert. When they arrived, there were still pieces of carpet off-cuts in the vicinity of the front door to the block. Mr Spencer asked Mr Morgan for a more detailed description of the mechanics of the fall, and Mr Morgan complied, commencing with the trip. Mr Spencer explained to him that it was the trip that initially threw him off balance and initiated the fall:-

A. What happened they I mean, what is it liable or non liable, or whatever it is, and I got Mr Spencer to come out and go through the motions with me what actually happened because then without saying anything I showed him exactly what happened and he noticed the trip on the carpet, when I explain to him what happened, and then he said, "Hang on," he said, "you know that trip started your motion of the slip over the stairs." Until then I didn't even take any notice of that.

Q. The visit there with Mr Spencer was three years after the accident, wasn't it?
A. Yes.

22 Thereafter, all Mr Morgan’s histories include reference to tripping on the carpet off-cut. Dr Borenstein, Clinical Psychologist, reported that on 6 February 2003 Mr Morgan told him “of an accident which occurred on 5 March 2000. At that time he tripped on a mat and slipped on stairs where he lived …”. On 10 June 2003, at the request of the Owners, he saw Dr Zeman, Rehabilitation Consultant, who recorded that “he was on the stairs outside of his unit when he tripped and fell. He fell down approximately one metre of steps, landing on his heels and back”. In cross-examination, confronted with this, Mr Morgan conceded that he had not mentioned the carpet off-cut to Dr Zeman, but this concession was apparently made on the misconceived basis that because the doctor had not recorded it, it was not said; given the other references to the off-cut after January 2003, nothing turns on the circumstance that it might not have been mentioned on this one occasion in June 2003. Dr Mahony, Orthopaedic Surgeon, reported obtaining a history on 24 June 2003 that “On the 5th March 2000 he tripped on a piece of carpet in the foyer area of a unit block. He fell down several steps, feet first”. On 30 September 2003, Dr Canaris, Psychiatrist, reported that he obtained a history that day that “he tripped over a mat, slipped on some tiles and fell down a flight of stairs”. Dr Bleasel, Neurosurgeon, reported having obtained a history on 3 August 2005 that “he had come out of his ground floor unit and walked towards the exit doors of the block. There was a piece of carpet holding the door open but he tripped. Trying to regain his balance he slipped on the wet tiles, airborne, he landed outside on the pavement feet first”.

23 Mr Morgan commenced proceedings on 4 March 2003. His statement of claim described the accident in the following terms: “On or about 5 March 2000 at approximately 9.00 pm, whilst endeavouring to walk through the front door of the premises the Plaintiff tripped on the edge of a piece of scrap carpet wedged under the front door and he stumbled and slipped on the wet tiled area outside the door”.

24 It was, naturally enough, suggested to Mr Morgan that the new emphasis on the trip rather than the slip was a response to the realisation that a case based on the tiles being slippery confronted great difficulties; he explained his position as follows:-

A. In my mind, I still think when I tripped on that thing I lost balance that caused me to slip, in my mind the slip is what I thought the accident was.

…

HIS HONOUR: Q: Mr Morgan, is what you are saying that even in your mind today the trip over the carpet scrap was neither here nor there except that in recovering from it you were unable to recover on the landing because it was slippery? Are you saying that from your perspective the real problem was that the landing was slippery? (T69)
A: At the time that is what I was thinking, yes.

…

HEWITT: … Q. Well, you say up until the time you had seen Mr Spencer at the site of the accident, is this what you say, you didn't think the mat was important?
A. At the time, no.

Q. Not for three years?
A. I thought the tiles were the important factor, being wet.

Q. Not even important enough to mention to your own lawyer?
A. Most likely.

Q. Because by the time you saw Mr Spencer, you have come to realise that the tiles were a difficulty for your case, hadn't you?
A. Yes.

Q. Because it couldn't be shown they were slippery?
A. Back to the point you are saying, I am not lying about going over the carpet, that's what happened, but I just seen no point at that time.

Q. *But once the expert had explained to you or you and the expert had agreed how important the mat was, that was your chance to put the record right whenever you saw a doctor, wasn't it?

OBJECTION. ALLOWED.

QUESTION MARKED * READ

WITNESS: I disagree.

25 Mr Hughes submitted that Mr Morgan’s accounts were not inconsistent: that he did slip and fall down the stairs; and that he did so because he had first tripped on a carpet scrap, which then caused him to become unbalanced and slip on slippery wet tiles. The accident, it was submitted, was caused by two factors: (1) a distal factor, namely the trip on the carpet off-cut, which initiated the process, and (2) a proximal factor, the slip on the tiles. Insofar as Mr Morgan originally tended to give versions which omitted reference to the distal factor, this was entirely understandable: it is natural to focus on the more immediate rather than the remoter causes of an event. Mr Hughes invoked the example of a shark attack victim who would more likely respond, when asked what happened, “I was attacked by a shark”, than “I was attacked by a shark because I was swimming with a sick shark in a tank full of blood and burley”. Mr Morgan thought that slipping on the tiles was the important factor, at least until Mr Spencer enlightened him as to the significance of the initiating trip.

26 For the Owners, Mr Hewitt submitted that it was highly unlikely that the door was open, given that Mr Morgan saw no-one enter the building after the accident, that it is inconceivable that anyone would want to move large objects into or out of the building in the prevailing weather conditions, that it was unnecessary for the door to be held open for a visitor to gain access since the button control at the door would allow an entrant to notify an occupant, and that most entrants would use the back entrance from the carpark. But if the door were not somehow being held open, it would be impossible for Mr Morgan to have been running: he would have had to stop to open the door. Both on Mr Morgan’s version, and on the contrary version that he was running, the door must have been open. If it was open, it must have been held open by something, since it was a self-closing door. And as the carpet off-cuts had often been used for that purpose, and were in the vicinity even three years later, I accept Mr Morgan’s evidence that, when lifted back onto the landing by those who came to his assistance immediately following the accident, he saw a carpet off-cut holding the door open. That he tripped on such an off-cut is supported, not only by his own evidence, but also by that of his mother, and the history of a “trip” that he gave on admission on the night of the accident at St George hospital. Although the histories subsequently obtained from him did not refer to the trip, the omission is understandable in the circumstances, for the reasons advanced by Mr Hughes as summarised above. There is no evidence inconsistent with a trip on a carpet off-cut being the initiating event. I accept that Mr Morgan’s accident was initiated by his tripping on a carpet off-cut that was holding open the front security door to the unit block.

27 It was contended for the Owners that, as the paramedics’ note suggested, Mr Morgan was running at the time he slipped, so as to avoid getting too wet in the conditions: Mr Morgan had left his car unlocked, and needed to return to it to lock it; it was raining heavily, and, given the conditions of the night in question, it would not be unnatural that he would have been keen to minimise his time in the rain, unequipped with raincoat or umbrella. However, Mr Morgan denied that he had any concern that his car window was open in the rain, or that he was in a hurry to get to his car; he said that he was not in a hurry to get to his car and get back inside, “because I had already come in out of the wet and had been soaked so it didn’t worry me”.

28 One the one hand, it seems unlikely that if he were moving as he said, at walking pace, Mr Morgan would have had sufficient momentum that from a trip at a point just inside the doorway, he could have slid across the landing of 2.1 metres and down the flight of steps, feet first. But the plaintiff’s expert safety consultant, Mr Spencer, maintained that the accident could have happened in the way described by Mr Morgan – explaining that his foot could have “aquaplaned” across the water lying on the tiles. His evidence, after cross-examination, left the impression that, while he maintained the opinion that, given his instructions as to what had happened, it was possible for a person to have fallen in the manner which Mr Morgan described, it was quite unusual:-

HUGHES: Q. In the circumstances of a stumble you have given evidence there is increased velocity of the body, what effect, if any, does that have on the velocity of the foot seeking to correct.
A. Okay, then assume the foot is a means by which we restore our natural balance, that is to say when we are either vertical or walking. If you start to fall, the time it takes to fall from the vertical to the horizontal is, you know, a couple of seconds, maybe one second, maybe a fraction of a second compensating, and your initial velocity, right. In this case, the plaintiff has described to me, stumbled. He is now at the point of a stumble, he is starting to accelerate as a result of the gravity towards the ground. He cannot travel in any other direction except towards the ground because of the gravity, okay. As a result, in he was taking his time as in a normal pace to swing one leg from the rear to the front, from the centre line of the body, he is now trying to correct an out of balance state of his body. As a result, instead of taking the normal time to swing his foot forward, his feet are now moving faster in order to regain balance.

Q. The act of correcting there is an increased velocity the foot towards the body?
A. In a forward movement, not necessarily striking harder.

Q. But faster?
A. Faster to restore your body's natural balance.

Q. Does the speed at which a foot strikes a wet tile have any contribution to an assessment of the capacity of the owner the foot to not slip?
A. Well, having just taking by example a speed boat. Now, a speed boat travels through the water and at a certain point, at a certain velocity the boat itself rides on top of the water. This is its design. If the plaintiff alleges that he slipped, it is then in this stumbling mode, it is quite possible, given the type of shoes that he had, quite possible to reach a certain velocity whereby he could lose traction. If you will lose traction, you are then in an uncontrolled movement.

Q. Is that what you have referred to as an aquaplaning effect?
A. That's what I tried to simply put that the foot with a wedge of water underneath it, although minute may settle, there's lost traction. It is difficult to say because I wasn't there. What I have described and what I have seen, and the circumstances and conditions that I have seen. Added to that, there may have been also been other things like oil, grease.

OBJECTION.

Q. Forget about the oil and grease. That's too much information. If you can concentrate on my question. This is a matter of common sense and expertise I am gratified by being benefited with your expertise. If you are in a slightly out of control stumble on a wet surface, is your foot going to be hitting the surface faster than if you were walking normally in control?
A. I think it would be for example, the ability of the human foot to travel on water

Q. I know an example of that.
A. Water skiing bare foot is an example of that.

Q. Forgot about water skiing.

HIS HONOUR: Q. What is the aquaplaning velocity of a bare foot water skier.
A. Of the top of my head, your Honour, I can't answer that.

Q. Would that not be an essential piece of information to know if you are going to proffer an opinion that the foot was aquaplaning?
A. I am just saying it is possible for a person to slide across the top of water. I just give that as an example.

29 While it is highly probable that Mr Morgan was the source of the account recorded in the paramedics’ note, it does not necessarily follow that they recorded precisely accurately what they were told. Mr Morgan cannot recall whether the ambulance officers were the first to ask him how the accident happened. At first he disputed that he gave them any account of the fall, let alone that he told them that he was running. He said that at the time, he would not have known what he was saying. He accepted that he told them something to the effect that he had pain in the mid lower thoracic area, but this evidence was reconstruction as opposed to recollection: he added “I would not know what I said to them actually”. He conceded that in the state in which he was, he might have said that he was running to the car and slipped over five steps; but a description of “running to the car” does not necessarily mean that he was actually running as he exited the front door.

30 There was no reason to run while inside the foyer, and Mr Morgan knew that there was a flight of steps outside. Even the most reckless of men and women do not run up to the top of a descending flight of steps or stairs; there are powerful natural instincts against doing so. That, once at the bottom of the steps, he might have run to the car would have been much more believable; but I cannot conceive that he would have been running in the foyer as he exited the door. Despite the weaknesses in Mr Spencer’s evidence, it at least established that it was not impossible for the accident to occur in the manner in which Mr Morgan described, and once that hurdle is cleared, however unlikely that version might seem, it is less improbable than the alternative that he was running as he exited the front door. I accept, on the probabilities, that he was not running at the time of the accident.

31 It follows that I accept that the accident occurred in the manner described by Mr Morgan; that he was not running at the time; and that his fall was initiated by his tripping on a carpet off-cut that was holding open the front security door to the unit block, as a result of which he slid across the wet tiles, and down the steps.

Was there a breach of duty by the Owners?

32 The duty of the Owners to Mr Morgan was that general duty of care owed by occupiers to entrants, to take such care as is reasonable in the circumstances for their safety, and to protect them from risks of injury which can be foreseen and avoided [Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Hackshaw v Shaw (1984) 155 CLR 614, 663]. However, the content of that duty varies according the circumstances of the entrant’s presence on the premises, the obviousness of the risk, the probability of the risk occurring, the magnitude of the consequences, and the cost or inconvenience of taking steps to remove, avoid or avert it [Wyong Shire Council v Shirt (1980) 146 CLR 40]. An occupier of premises is required to take only such care as is reasonable in the circumstances, not to make the premises as safe as reasonable care and skill on the part of anyone can make them [Jones v Bartlett (2000) 205 CLR 166, 177, 184-5 (Gleeson CJ); Wilkinson v Law Courts Limited [2001] NSWCA 196, [21] (Heydon JA)]. One must not slide from determination that a risk of injury exists to a consideration of preventability: a defendant will be liable only if its failure to eliminate the risk shows a want of reasonable care for the safety of the entrant [Tame v State of New South Wales (2002) 211 CLR 317, [99] (McHugh J); Cafest v Tombleson [2003] NSWCA 210 (Meagher JA)]. The content of a duty of care in a particular case cannot therefore adequately or usefully be described simply as one to take reasonable care to avoid a foreseeable risk of injury to a person in the situation of the plaintiff, as that leaves open the content of the term ‘reasonable’ and thus the content of the duty, without which the issue of breach cannot be determined [Jones v Bartlett (2000) 205 CLR 166, 213 [166] - [167] (Gummow and Hayne JJ)]. So it is essential to identify with precision, by reference to considerations of the nature of those indicated in Wyong Shire Council v Shirt, what was a reasonable response to the risk of harm that existed [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 611-2 [192] (Gummow and Hayne JJ)], a judgment which is to be made having regard the situation before, not after, the accident [Vairy v Wyong Shire Council [2005] HCA 62, [49], [126]]. It is necessary to consider these questions from the perspective of the defendant, with its state of knowledge, and ask whether the defendant acted as a reasonably prudent person ought to have acted [Woods v Multi-Sport Holdings Ltd (2002) 208 CLR 460].

33 The risk of harm in this case, in respect of which what was a reasonable response must be judged, was the risk of injury to a person exiting the premises of tripping on a carpet off-cut wedged under the front door to hold it open temporarily, and/or slipping and sliding on the tiles of the landing. For Mr Morgan, Mr Hughes submits that the Owners’ duty to Mr Morgan required them to

· Have the carpet off-cuts removed so that they would not be available for use as a door stop;

· Maintain the common property in a safe condition free from the trip hazard posed by the use of the carpet off-cuts as a door stop;

· Provide a weatherproof non-slip doormat on the tiles outside the front door

· Provide a latch to keep the front door open, so that it would be unnecessary to use the off-cuts for that purpose; and

· Place a sign on the notice board warning against use of carpet off-cuts to keep the door open.

34 Preconditions to a finding of a breach of duty in these circumstances are now prescribed by the Civil Liability Act 2002 (NSW), as follows:-

5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.

35 The circumstances include that the occupier was the body corporate of a home unit building, and the entrant was the inhabitant of one of the units. Although a body corporate has the capacity to inspect the common property, what positive steps it can take is limited by the funds made available to it by the proprietors: it does not have the same resources as a public authority or a commercial entity [Ridis v Owners SP10308 [2005] NSWCA 246, [122]-[123]]. It is much closer to an individual house owner, though even that analogy is imperfect, because it does not have control of the whole property, and it cannot bar access to the common property [Ridis, 121]. Members of the public would not enter upon the common property of a home unit building with the same expectation as to the standard of its maintenance and repair as they might entertain when entering premises pursuant to contract, or on public lands, let alone on commercial premises such as a shopping centre [Ridis, [123]]. Nonetheless, a body corporate does have a substantial degree of control of common areas, and the circumstance that in a home unit block there is a higher density of population, and thus of pedestrian traffic, than in an individual home, may require the taking of precautions, particularly in heavily used common areas, which would not be required of an ordinary homeowner.

36 The first, second, fourth and fifth particulars set out above are all concerned with precautions against the use of the carpet off-cuts to hold open the door. In this case, the carpet off-cuts had been present for some years before the accident, after the carpet had been replaced. Indeed, they remained present for years afterwards. They were used as an internal doormat and, on occasion - after a latch which had been used to hold open the security door had been removed (for security reasons) - they had occasionally been used, presumably by occupants, to hold open the door, by being wedged underneath it. Mr Morgan knew that they were used for this purpose and, before the accident, had drawn this to the attention of officers of the body corporate - not because of any perceived trip risk, but because it was perceived to compromise security.

37 Hazards such as steps and changes in level are everyday risks which members of the public encounter and avoid by taking care for their own safety [Stannus v Graham (1994) Aust Tort Rep ¶81-297, 61,566 (Handley JA); Owners SP63477 v Ross [2005] NSWCA 162, [19], [23]]. Thus in respect of footpaths, persons are ordinarily expected to exercise sufficient care by looking where they are going to perceive and avoid obvious hazards such as uneven paving stones, tree roots and holes [Ghantous v Hawkesbury City Council (2001) 206 CLR 512, 581 [163]]. There are few if any suburban houses which do not contain hazards of unevenness of surface which might cause a person to trip and fall, and the failure to do anything about such a hazard is not necessarily negligence; thus the occupier of premises was not liable to a person who entered for the purposes of attending a garage sale and tripped on a 12mm gap in a driveway surface [Neindorf v Junkovic [2005] HCA 75].

38 There is no suggestion that the off-cuts had previously caused anyone to trip. At 12mm, the off-cuts posed but the slightest risk of causing a trip, not significantly different to the doormats, rugs or other changes of level that might be found in many homes. They were obvious, and to the extent that they posed a danger of tripping, it was an obvious one. Occupants such as Mr Morgan, who travelled through the area daily, must have been aware of their presence, and that they were sometimes used to prop the door open; Mr Morgan himself certainly was, as he raised their presence and use as door stops with officers of the body corporate, but in the context of security rather than of safety.

39 The risk of a trip was slight, and to the extent that there was any risk it was obvious for everyone to see. The off-cuts served a function, as improvised doormats. Mats are a commonplace, and people are expected to watch where they are walking and perceive and avoid the risk of tripping on them. A latch to hold the door open would have had greater adverse implications for security, by inhibiting the self-closing action of the door; Mr Morgan himself was sufficiently concerned about the security implications of the door being held open to raise it with the body corporate. There is no reason to suppose that a notice would have deterred persons from using the off-cuts as doorstops. Notwithstanding that their removal would have been easy and inexpensive, I do not think that, in the light of the foregoing factors – their obviousness, their utility, and the slight risk - failure to remove the off-cuts involved a want of reasonable care for the safety of persons such as Mr Morgan.

40 As to the third particular – provision of a weatherproof non-slip external doormat – AS/NZS 3661.2:1994 Slip resistance of pedestrian surfaces Part 2: Guide to the reduction of slip hazards was invoked in aid of the proposition that such a mat should have been provided. In Section 7 (Reduction of Slip Hazards on Existing Floors), under “Special precautions in the home environment”, the Standard provides:-

7.2.3 Outdoors Special precautions for outdoor areas include:

(a) Slip-resistant doormats at entrances are recommended. These should be secured or large enough to remain in place.

41 While one purpose of a doormat is to provide a means persons entering to wipe their shoes, another purpose of a slip-resistant doormat is to prevent persons exiting from slipping as they step down from the doorstep onto the different, lower surface. The entrance in question here was the front entrance to the building. While there was no significant change of level between inside and outside, the exterior surface – the landing – was of tiles. It was not suggested that the tiles themselves were excessively slippery; although at one stage such a case had been contemplated, testing of the tiles demonstrated that their friction coefficient was within acceptable limits. However, even if not unduly slippery, tiles make a surface on which it is easy to slip, especially when wet. This landing was exposed to the elements, and when it rained, water entered under the canopy and the tiles were wet right up to the front door. Although both Mr Baxter and Mr Moodley, former officers of the body corporate, said that they had never noticed any problem with the tiles on the landing when wet, it is notorious that the presence of water on tiles increases the risk of slipping; the Standard itself explains that “Water is arguably the substance which most often makes floors slippery”. The landing was located at the top of a flight of five steps, so that a slip on the landing could have potentially serious consequences – as it did in Mr Morgan’s case. The provision of a weatherproof external doormat, as the Standard recommended, would have very considerably reduced the risk of a person exiting the premises slipping. Mr Moodley’s response, that an external doormat would have simply got wet, overlooks its protective slip-resistant function, and that weatherproof mats were recommended – and, on the evidence, available since at least 1995, at a price of about $25.

42 In my view it was foreseeable that a person exiting the building through the front door in wet conditions might slip on the wet tiles. As was said by Gibbs CJ in Turner v State of South Australia (1982) 42 ALR 669, (at 670):

On the one hand, the degree of risk of injury occurring was not shown to be great, and the way of avoiding injury should have been obvious enough to an employee. On the other hand the remedial action suggested involved little or no difficulty or expense. Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent.

43 In the context of the front entrance of a multi-unit residential building, where the landing was located at the top of a flight of five steps and was known to be exposed to rain, and given the availability of such mats for only $25, reasonable care for persons exiting the building required compliance with the Standard by provision of an external slip-resistant weatherproof doormat. While I accept that a body corporate need not rectify a building to comply with later non-mandatory standards that did not exist when it was built [Ridis], that was said in the context of the fabric of the building. Ridis does not mean that a body corporate can fail to implement obvious precautions which can easily be taken, just because they are expressed in a Standard published many years after construction of the building.

44 Provision of such a doormat would have prevented Mr Morgan’s trip from continuing into a slip and a fall, and would have averted his injuries. Failure to provide it was therefore causative of his injuries.

Was there contributory negligence by Mr Morgan?

45 Knowing that the off-cuts were used to prop the door open, and finding the door propped open when he emerged from his room, a reasonable person in Mr Morgan’s position would have appreciated that the door was being held open by an off-cut, and taken due care to avoid tripping on it when exiting. His failure to appreciate or observe the off-cut, when exiting a foyer with which he was familiar and in which they were, to his knowledge, constantly present and occasionally used as doorstops, was a disregard for his own safety, and as the trip initiated the fall, contributed materially to his damages.

46 On the one hand, he would not have tripped, and would probably not have slipped and fallen, had he taken reasonable care for his own safety. But on the other, he would have come to no harm but for the Owners’ negligent failure to provide a slip-resistant doormat. Given that even without a trip a person exiting might have slipped on wet tiles, and that an appropriate mat would have enabled Mr Morgan to recover his balance, the failure to provide the mat bears the greater responsibility for the outcome. I assess Mr Morgan’s contributory negligence at 35%.

Damages

47 Mr Morgan was born on 9 August 1959 and is now almost 47 years of age. At the date of the accident on 5 March 2000, he was 40.

48 Before the accident, he had had a fractured wrist (at the age of 16), a fractured nose (at the age of 19), a fractured thumb (at the age of 24), an operation to remove some veins from his testicles, an appendicectomy (at about the age of 29), an assault at work in 1994, and an assault at a hotel in 1999 when he sustained a laceration to the back of his head. He consulted his general practitioner Dr Nigro for a left sided lower back injury on 9 February 1995, after a heavy lift. Dr Nigro says that this resolved completely using anti-inflammatory medication. In 1998, he sustained a lifting injury at work. He had no time off work and saw a physiotherapist once or twice, and it occasioned no further difficulty.

49 He says that his level of fitness at the time of the accident was very high. He played “a bit of tennis, a bit of golf”, once every month or two. He had engaged in scuba diving in the past, but by the time of accident did so less frequently than six monthly. He was living on his own, but had a girlfriend with whom he had been for four months.

50 Mr Morgan was educated to year 10 at high school; he had learning difficulties as a child. Subsequently he completed apprenticeship training in carpentry and joinery. Since 1997 he had been working for Absae Fitout Pty Limited as a general contract carpenter, until about three weeks before the accident, when he became an employee, with Absae bringing its contract carpenters onto contracts of employment.

51 When the ambulance attended the scene of the accident, he described having landed on his feet on the concrete and fallen back on the steps, with immediate pain to the mid lower thoracic region. Although he refused analgesia from the paramedics, he explained on admission to the hospital that he could not get up due to the back pain. He was given analgesics at the hospital, including morphine. An initial x-ray of the lumbosacral spine reported “minimal thoracolumbar scoliosis convex to the left”, but no definite fracture. He was told that there did not appear to be any fracture and was discharged at about 6.00 am in the morning. He shuffled the 300-500 metres home, taking about an hour to cover the distance.

52 He consulted Dr Nigro on 6 March, who on examination found right-sided lumbar muscle spasm with tenderness. When his symptoms had not improved by 17 March, Dr Nigro ordered a CT scan of the lumbar spine, which showed minor disc bulging of the L4/5 and L5/S1 discs.

53 Dr Nigro referred him to Dr Pattinson, who saw him on 10 April 2000. Mr Morgan identified the area of approximately L2 as the site of his pain and was slightly tender over the interspinous ligament over L2/3. Dr Pattinson thought he might have a compression fracture of the lumbar spine and arranged for a bone scan, which was performed by Dr Dickinson on 11 April 2000, demonstrating a compression fracture at T12 and L1, and revealing markedly abnormally increased tracer uptake at T12 involving the superior intervertebral plate extending from the mid-line to the right, with mild to moderately increased tracer uptake in L1 on the right, again involving the superior intervertebral plate. Dr Dickinson concluded from the bone scan that the appearances were suggestive of recent partial compression fractures of the anterior vertebral bodies of T12 and L1 on the right. Follow up x-rays on 15 May 2000 confirmed compression fractures at that level, with less than 10% loss of height of the vertebral bodies involved.

54 Mr Morgan’s back pain worsened, and on 19 June 2000 he was prescribed Mersyndol Forte, and later Celebrex 100mg. Continued severe back pain required the trial of Tramal on 3 January 2001. He was re-examined by Dr Pattinson on 5 October 2000 at the request of Dr Nigro, when he complained of on-going back pain interfering with his work as a carpenter. He localised the thoracolumbar junction as the site of his pain. A follow up bone scan and x-rays showed that the compression fractures had healed. Dr Pattinson thought that his pain was likely to be coming from interspinous and supraspinous ligament injuries, and perhaps from facet joint degenerative changes.

55 For the first 12 months following the accident, Mr Morgan did not work at all. Problems began develop in the relationship with his girlfriend following the accident, largely because he was not working, and the relationship came to an end. He became frustrated and depressed, and occasionally engaged in binge drinking. He had sold his unit before the accident. Living in it as a tenant, and was preparing to buy a house. Not working was chewing into his savings, and he embarked on some share trading in the hope of making some money while not working. This was disastrous, and he lost money. He became increasingly depressed, and one night, about a year after the accident, could see little point in living; after drinking a full bottle of bourbon he tried to lacerate his wrist with a butcher’s knife.

56 Dr Pattinson re-examined him on 9 September 2002. He was complaining of on-going back pain, and had only been able to work as a casual since the time of injury. He had been having physiotherapy. Mr Morgan said that he was unable to jump off small heights, and that lifting and bending caused back pain. He was taking Panadeine Forte and Viox, and having difficulty getting full time work. On examination, spinal alignment was normal; there was a good range of motion and no tenderness. X-rays showed no deterioration in position. Dr Pattinson thought that the main problem was pain control, and that surgery was not indicated. He referred him to the pain clinic at St George hospital on 9 September 2002.

57 Following that referral, on 11 September 2002, Dr Vasic, pain management specialist, reported that Mr Morgan described pain in his lower thoracic spine on both sides, though the left side was worse than the right. While seated he rated it at 3½ out of 10, and at its worst 7 out of 10. There were no neuropathic features. Mr Morgan described difficulties in going to sleep, that he often woke in pain, and that household activities such as washing up and vacuuming exacerbated the pain, so that he was unable to do housework effectively. He was taking Panadeine Forte, two per day. Tramadol was not proving of benefit, nor Viox. He was having physiotherapy weekly. It was concluded that he was suffering chronic pain secondary to vertebral fractures occurring two years earlier, and that the pain should eventually improve. He had continued working as a carpenter, but casually, and using medication to get through his work.

58 On 3 February 2003, Dr Pattinson thought that the prognosis was guarded as it was nearly three years since the initial injury and the on-going back pain continued, interfering with his ability to work as carpenter. He thought that Mr Morgan was unfit to work full time as a carpenter, due to on-going pain related to the compression fractures of T12 and L1. He thought Mr Morgan had a 20% permanent loss of function of the lumbar spine.

59 On 18 February 2003 Dr Nigro reported that Mr Morgan remained unfit for pre-injury (or any) duties, and that the prognosis was poor, as recovery had not occurred since the fall nearly three years earlier.

60 Kevin Hewson, physiotherapist, reported that Mr Morgan had chronic thoracolumbar spine pain, and that he had seen how heavy work and bending could re-aggravate his condition. He thought Mr Morgan may continue to have pain and restricted activities into the foreseeable future, and doubted that there would be complete resolution in the next few years. He recommended that he avoid any work involving lifting or repetitive bending, as that may aggravate his condition.

61 The radiological evidence confirms a spinal injury. While a lumbar spine x-ray on 6 March 2000 showed minimal thoracolumbar scoliosis, with no definite fracture detected, a lumbar spine CT scan on 20 March 2000 showed mild symmetrical posterior disc bulge at L4/5 which slightly indented the thecal sac with mild foraminal narrowing at each side, and also a minimal posterior disc bulge at L5/S1 with some minor osteoarthritic changes L3/4, L4/5, L5/S1; and a thoracolumbar spine x-ray on 15 May 2000 showed some anterior wedging in the low thoracic and upper lumbar spine and evidence of trauma to the superior end plate of T12/L1.

62 Dr Mahony, orthopaedic surgeon, examined Mr Morgan on 24 June 2003. He noted that Mr Morgan had been treated with a Taylor’s brace and was off work about 12 months. He recorded that he had subsequently tried to work on several occasions and in the last three years had worked about six months on separate occasions, and that he had required and was still attending for physiotherapy, and complained of persisting symptoms. His present complaints included pain in the back (indicating the lumbar area) associated with a numb feeling in the left thigh; a “tired” feeling in the left leg; occasional soreness of the neck; pain behind the left elbow; and cessation of scuba diving, tennis and golf and motor cycle riding. On examination, flexion of the neck was within normal limits, but there was guarding. Shoulder movements were within normal limits. Spinal movements were possible in flexion, with fingertips reaching to the mid tibial level. Extension and lateral flexion appeared restricted in extremes but rotation was within normal limits. Straight leg raising was possible to about 60 degrees on both sides. Dr Mahony concluded that Mr Morgan had developed symptoms referrable to a cervical strain with nerve root irritation radiating to the posterior aspects of the shoulders. He had also sustained compression fractures of T12 and less so L1, with evidence of discogenic lesions at L4/5 and lumbosacral levels. He considered that the numbness of the outer aspect of the left thigh was associated with tension in the low discs. He recommended that future activities not involve significant bending or lifting, and that it would not be wise to return to carpentry. After allowing for pre-existing changes, he thought that Mr Morgan had a 5% permanent impairment of the neck, 2.5% loss of efficient use of the right upper limb at and above the elbow, 12.5% permanent loss of efficient use of the left upper limb at and above the elbow, 10% permanent impairment of the left upper limb as a result of the left olecranon bursitis, 30% permanent impairment of the back, and 5% permanent loss of efficient use of the left lower limb at and above the knee. In oral evidence, Dr Mahony explained that headaches, of which Mr Morgan complained after the accident but which were not present beforehand, were frequently referred from the neck. He confirmed that there was a likelihood of accelerated arthritic change as a consequence of his injuries. He thought improvement was unlikely, although following correct medical advice might lessen the symptoms. The film evidence of Mr Morgan at work on 11 and 14 February 2005, when he worked two or three hours each morning, did not affect his opinion that it would be unwise for him to return to carpentry duties.

63 Dr Bleasel, neurosurgeon, saw Mr Morgan on 3 August 2005. Mr Morgan complained of intermittent depression, neck pain mainly on the left side, frontal headaches sometimes occipital, low thoracic pain, low back pain (he could not bend) and his legs feeling weak with severe cramps in the calves, particularly the left. On examination there was neck pain with movement, particularly on the left side, and a restriction of rotation to the right. There was obvious muscle spasm on the left on examination of the lumbar spine. Straight leg raising was achieved to 60 degrees causing back pain, not leg pain. Dr Bleasel concluded that he had vertebral fractures, lower thoracic and upper lumbar, and continuing pain “which is common with this type of fracture”. He concluded that he was not fit to return to his original work, and though he did small jobs for friends he could not stand for long or work in a bent position or do any heavy lifting. He thought the prognosis for the future was not good. Dr Bleasel was not required for cross-examination

64 Medical opinion tendered in the Owners’ case is that he has been left with a small permanent impairment (5% of thoracolumbar spine function), and a risk of developing premature degenerative disc disease, particularly at T12/L1, but is fit for all forms of employment including his previous employment as a handyman/carpenter full time without any specific restrictions.

65 Video film obtained by the Owners showed Mr Morgan working as a carpenter for about three hours on Friday 11 February, and a couple of hours on Monday 14 February 2005. On 11 February, he kneeled using a hammer, used pliers held in his left and right hands, used a chisel in his left hand, bent at the hips to pick up a piece of scrap metal, squatted, carried a sheet of plasterboard and placed it against the garage, used a grinder to cut a plasterboard sheet, used a drill, carried a large masonry drill and case and bent at the hips to place them on the ground, used a blower vac, used a hacksaw to cut a piece of pipe, bent at the hips to connect power cords, used a masonry drill, and attached plasterboard sheets to the external brick wall of the garage, inserting the garage door mechanism and lock. On 14 February, he was seen standing on a ladder, extending both arms to apply a sealer with paint scrappers held in both hands, climbing up and down two ladders, bending at the hips to apply the sealer to the plasterboard, holding a bucket in his left hand, turning his neck and head, using a hammer in his left hand, using a sealing gun, carrying a sheet of plasterboard, using a measuring tape, using a stringline, placing adhesive glue onto exterior plasterboard sheets, attaching another plasterboard sheet using a hammer and nails, removing nails with a hammer, using a sponge in the left and right hands to wash off excess sealer, attaching a second sheet of plasterboard to the exterior and banging it down using both hands before nailing it, and attaching a third sheet of plasterboard.

66 Mr Morgan described that for a couple of years after the accident he had constant severe pain, about eight out of ten on the pain scale. Since then, it has reduced to three to four, if he does nothing and rests his back; but if he starts work, it ranges from five up to about six and a half or seven. He says that the pain never goes away. He has not returned to golf or tennis or scuba diving. No work he has done as a carpenter or handyman since the accident has been unaccompanied by pain. His mother observed that his attitude and manner had changed and that he was like a broken person. So far as work is concerned, in the first year after the accident he relates having “just done a few favours for friends, not many hours at all, trying to help them out and see if my back would hold up, which it was still in pain”. That lead to his breakdown, when he found out he could not sustain it. Subsequently, he has tried to go back to carpentry. He says that he did “days” in 2001, “probably a little bit more” in 2002, and that in 2005 He had “gone back and tried to do a bit”.

67 Mr Morgan accepts that he is much better now than he was a couple of years ago. He accepts that when examined by the Owners’ doctors he has been able to perform all requested activities without difficulty, but observing that he was never asked to lift anything heavy or undertake strenuous activities. He was able to sit, dress and undress, stand, turn and walk without difficulty. But he did not accept that he had fully recovered, and had no disability of significance, and could bend and lift and perform heavy work without difficulty and at a fast pace. He says that he can do about 70% of the work of carpenter, but not the heavier aspects, and in particular not heavy continuous work such as lifting beams into place on roofs, formwork on a daily basis full time, and continual heavy manual lifting work. He can maintain a forward bending position probably for half an hour to an hour, and squat for about the same time, whereas in the past he could do so for the best part of a working day. Lifting heavy items brings great pain to his back. The longest consecutive period he has worked since the accident is one to two weeks of general carpentry. He estimates that he is 50% slower at such work than he was, and is in a great deal of pain after it. Of the work which was the subject of the video, he said:

Q. The job you were doing for him there, it wasn’t a light job, was it?
A. No, but it put strain on my back and for the next month or so after that I didn’t do anything hardly. I tried to do stuff, but I was in pain. …

68 He conceded that he was able to kneel down, bend forward, reach up and down, climb ladders, carry a fibro sheet and power tools. He pointed out that there were a couple of occasions when he went inside, when he had laid down and rested. He said the film showed him working much slower than he had used to work. He said that his back ached virtually all the Friday night following, and he pointed out that he was not depicted and had not done heavy lifting continually up the ladder and drilling sheets all day long and hammering.

69 Dr Zeman, a rehabilitation specialist who saw Mr Morgan for the Owners, thought that he may have occasional difficulty with extreme heavy manual work, but was medically fit for normal duties for most if not all of his previous work. However, Dr Zeman explained that this did not mean that he was employable:

This does not mean that he is able to do this at a level sufficient to be employed, merely that he will not suffer injury, exacerbation or similar problems. His perception of pain is likely to limit his function to light to moderate work until this problem can be addressed.

70 Mr Morgan has relatively recently established a new relationship, with Ms Kilminster. His pain interferes with his sexual performance. Ms Kilminster reported having observed his back pain after physical activity, and that he had to lie on the floor to relieve the pain in his back and takes lots of pain killers. She reported that on one occasion when sweeping her garage floor he suddenly could not move and had to be helped inside and to lie down, and that the same had happened after he had mowed her lawn. He has told her that he feels inadequate and not good enough to be somebody’s husband or father or provider.

71 In early 2003 Dr Nigro referred Mr Morgan to Mr Borenstein, clinical psychologist. Mr Morgan told him that he was on sickness benefits and was dipping into his savings and “I’m just about broke now”. He explained having attempted to return to carpentry but “I could last two to three days then the pain comes back. I have a bit of physio and then I take more tablets. I try not to take much on”. Mr Borenstein diagnosed adjustment disorder with depressed mood consequent to chronic pain of known medical origin. Dr Maguire, psychiatrist, for the Owners, supported the diagnosis of adjustment disorder with depressed mode, although suggesting that it was more attributable to the break up with his girlfriend than the accident. .

72 Dr Canaris, psychiatrist, saw him on 30 September 2003. Mr Morgan felt that his greatest loss was not being able to use his hands, to build as he had been able to in the past. Dr Canaris concluded that he had suffered substantial losses as a result of his accident:

His is the classical dilemma of the manual worker whose injuries prevent him from returning to his trade who unfortunately lacks the literacy and numeracy to transfer to a sedentary job. In the setting of this predicament, he would have been at substantially increased risk of psychiatric problems.

73 Dr Canaris thought that he had had a major depressive disorder, that it was now in remission but that there was a 50% chance at least of recurrence, though he was then not depressed. He recommended on-going psychological treatment. Dr Canaris saw him again on 13 October 2005, when he diagnosed a dysthymic disorder in the context of chronic pain syndrome.

74 I accept Mr Morgan’s evidence in respect of his pain and its impact on his ability to work. It derives corroboration from Ms Kilminster, and from his mother. It is not inconsistent with what was shown on the video. Neither in respect of issues of fact going to liability, nor on matters of damages, did his evidence seem overstated.

75 In sum, Mr Morgan suffered compression fractures of the anterior vertebral bodies at T12 and L1, discogenic lesions at L4/5, and anterior wedging at T8 and T9 to T12. He still has chronic pain, which was very severe for a couple of years following the accident. Although he is able to perform normal activities of daily living and many of the tasks of a carpenter, they occasion considerable pain, and he is much slower than he was. The accident has resulted in significant losses, financial and emotional, which have combined to produce a serious mood disorder. I do not need to decide the precise categorisation of Mr Morgan’s psychiatric condition, nor whether it was more attributable to the break up with his girlfriend than the accident; for present purposes it suffices, and I am satisfied, that he has suffered from a depressive illness, and that the effect of the injuries suffered in the accident and consequent disabilities were a significant contributing cause of it. A result of the combination of his physical and psychological limitations, his capacity for employment is significantly reduced. The impact of this in Mr Morgan’s case is exacerbated by the circumstance that his education, training and experience do not equip him for work other than carpentry.

76 In my view, Mr Morgan’s non-economic loss is to be assessed at 25% of a most serious case, which Civil Liability Act, s 16, has the effect of fixing at $27,000. As the Civil Liability Act applies, no interest can be awarded on damages for non-economic loss.

77 Past medical and related expenses total $9866.78. These have been incurred progressively between the date of the accident and the date of trial, and I would allow interest on that sum from the mid-point, say 29 June 2003, which at 9% amounts to $2886.03, a total of $12,752.81.

78 Mr Morgan, having once had an episode of major depression and with a diagnosis of dysthymia, will require ongoing treatment, including by a psychologist and/or psychiatrist. It seems that he has developed a good therapeutic relationship with Mr Borenstein, which he wishes to continue if financially able to do so. Dr Canaris has suggested that he may well require psychological counselling, weekly to fortnightly, for well in excess of two years. At the current rate of $150 per one-hour consultation, this amounts to between $7,800 and $15,600 for two years. I would allow $10,000. Dr Canaris has proposed that he may also require psychiatric intervention, initially fortnightly and reducing to monthly after the first six months, also for at least two years. At the current rate of $255 per one-hour consultation, this totals $7,650. I would allow a further $4,000 to cover ongoing GP attendances for pain management, and pain relief medication, for which he is likely to have a lifelong requirement. Accordingly, for future treatment I would allow a total of $21,650.

79 In the financial year ending 30 June 1995, Mr Morgan had a taxable income of $37,169, which after tax of $8,659 and Medicare levy of $520 produced a net income of $27,990. In the 1996 financial year, his taxable income was $28,760, which after tax of $5,800 and Medicare levy of $431 left him with a net income of $22,529. In the financial year 1997, his taxable income was $18,367, which after tax of $2,593 and Medicare levy of $312 left a net income of $15,742. In the financial year ending 30 June 1998, his taxable income was $12,915, less tax $1,503 leaving net income of $11,412. In the financial year 1999 his taxable income was $35,106 less tax $7,958 and Medicare levy $526, leaving net income of $27,122. In the year to 30 June 2000, his taxable income was $14,801, less tax $1,880 and Medicare levy $222 leaving net income of $12,699. However, he did not work after the accident, and he had taken about three months off in the first half of the financial year, so annualised his income would probably have been double that, say $25,000.

80 At the date of the accident, Mr Morgan had been an employee for three weeks. He worked 38 hours in first and third weeks, for $674.50 net per week, and 16 hours in the second week, for $347.00 net. At $674.50 net per week he would have earned $35,074 per annum net of tax; or taking the average earnings of the three weeks of $556, he would earn $28,912. The evidence does not explain why he worked only two days in the second week, the only apparent explanation is that he was not a full-time employee in the ordinary sense, but was employed to work as required. Although Mr Hewitt has submitted that there was no certainty that that employment would continue, and that he might have to revert to business on his own account or as a contractor in the future, it is difficult to see why having been put onto wages after working for Absae for three years as a contractor, the new arrangement would not continue. In my judgment the best guide to Mr Morgan’s pre-accident earning capacity is his earnings as an employee in the three weeks before the accident. I find that his pre-accident earning capacity was $29,000 per annum, or $558 per week.

81 Mr Morgan was off work and earned nothing for the fifteen weeks of the financial year that remained until 30 June 2000 (a loss of $8,370). His actual net earnings were $6624.56 in FY2001 ($22,375), $8279.18 in FY2002 ($20,721), $13,303.97 in FY2003 ($15,696), $9,012.90 in FY2004 ($19,987), and $8692.52 in FY2005 ($20,307). The total loss until 30 June 2005 is $107,456. Interest from the midpoint of that period (say 29 October 2002) to date at 9% per annum is $37,878, producing a total of $145,334. Past lost superannuation at say 8% on that is $11,627.

82 As to his ongoing and future economic loss from 1 July 2005, Mr Hughes submitted that a loss of $250 to $300 per week was established. Mr Hewitt contended that if it were accepted that he were fit for only light duties, there were a number of suitable positions that paid $400 to $450 net per week. However, none of them are jobs or trades in which Mr Morgan has any history of employment. Some attention was given to the possibility of his gaining employment as a picture framer, or a model maker, and he accepted that he might be able to cope with such work, but not for lengthy periods, and he has no training or experience for it. I also have regard to Mr Morgan’s concession that he is significantly better now than he was a couple of years ago, and that in 2003 he earned in excess of $13,000 net. Doing the best I can, I would assess his present and future earning capacity at about $19,000 net per annum, or $365 net per week, a loss of $193 net per week.

83 While Mr Morgan gave evidence that he had wished to work as a carpenter until age 65 or 70, I think his capacity to perform heavy work would have been reduced in any event by about age 60, and I would allow for loss of future earning capacity from 1 July 2005 at $193 per week until that age, a period of 14 years and 5 weeks. The 5% multiplier for 14 years is 521.31, which produces $100,613. Discounted for vicissitudes at 15%, this results in a loss of $85,521 as at 1 July 2005. Interest at 9% to 29 September 2006 amounts to $9,621, producing a total of $95,142. Lost superannuation at 9% is $8,563.

84 Accordingly, I assess Mr Morgan’s damages as follows:

· General damages for non-economic loss (25% of most serious case): $27,000;

· Past medical and related expenses: $9866.78, plus interest of $2886.03, a total of $12,752;

· Future treatment: $21,650;

· Past loss of earnings: total shortfall until 30 June 2005 $107,456, plus interest from the midpoint to date of $37,878, a total of $145,334;

· Past lost superannuation: $11,627;

· Future loss of earning capacity: discounted for vicissitudes at 15%, $85,521 as at 1 July 2005, with interest to 29 September 2006 of $9,621, a total of $95,142;

· Future lost superannuation: $8,563.

85 These total $322,068.

Conclusion

86 I accept that the accident occurred in the manner described by Mr Morgan; that he was not running at the time, and that his fall was initiated by his tripping on a carpet off-cut that was holding open the front security door to the unit block, as a result of which he slid across the wet tiles, and down the steps.

87 Notwithstanding that their removal would have been easy and inexpensive, I do not think that, in the light of their obviousness, their utility, and the slight risk, failure to remove the off-cuts involved a want of reasonable care for the safety of Mr Morgan.

88 However, in the context of the front entrance of a multi-unit residential building, where the landing was located at the top of a flight of five steps and was known to be exposed to rain, and given their availability for only $25, reasonable care for persons exiting the building required compliance with the Standard by provision of an external slip-resistant weatherproof doormat.

89 As provision of such a doormat would have prevented Mr Morgan’s trip from continuing into a slip and a fall, and would have averted his injuries, it was causative of his damages.

90 Mr Morgan’s failure to appreciate or observe the off-cut, when exiting a foyer with which he was familiar and in which they were constantly present, was in disregard of his own safety, and also causative of his damages. I would assess his contributory negligence at 35%.

91 Mr Morgan’s damages total $322,068, before allowance for contributory negligence. Reduced for contributory negligence, he is entitled to judgment for $209,344, which I round to $210,000.

92 I give judgment for the plaintiff for $210,000, and costs.

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