Neate v Fox
[2012] NSWDC 2
•27 January 2012
District Court
New South Wales
Medium Neutral Citation: Neate v Fox [2012] NSWDC 2 Hearing dates: 15, 16, 17 and 22 November 2011 Decision date: 27 January 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the sum of $506,330;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - liability of owner of vintage aircraft for injury to disembarking passenger who fell to the ground whilst alighting from port wing - no steps provided for disembarking passengers; DAMAGES - assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002, s 5B, s 5C, s 5D, s 5E, s 5F, s 5H, s 5I, s 5K, s 5L, s 5R, s 5S, s 15, s 15B, s 16
Evidence Act 1995, s 60
Uniform Civil Procedure Rule 2005, r 31.10Cases Cited: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Price v State of New South Wales [2011] NSWCA 341
Reece v Reece [1994] MVR 103
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2997) 234 CLR 330
Strinic v Singh [2009] NSWCA 15
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40Category: Principal judgment Parties: Dennis Leslie Neate (Plaintiff)
Robert Fox (Defendant)Representation: Mr M Thomson (Plaintiff)
Mr W Reynolds (Defendant)
Gerard Malouf & Partners (Plaintiff)
Riley Gray-Spencer (Defendant)
File Number(s): 2010/376980
Judgment
Table of Contents
Nature of case
[1]
Issues
[2]
Summary of findings
[3]
Assessed heads of damage
[4]
Facts
[5] - [114]
Plaintiff's pre-accident situation
[6] - [11]
Background to the accident
[12] - [61]
Events of the accident
[62] - [70]
Injuries
[71]
Treatment
[72] - [82]
Assessment reports
[83] - [88]
Disabilities
[89] - [102]
Domestic effects of disabilities
[103]
Subsequent dealings between the parties
[104] - [114]
Issue 1 - Negligence and causation
[115] - [170]
Issue 2 - Defences invoking Civil Liability Act 2002
[171] - [195]
CL Act, s 5F, s 5H
[172] - [176]
CL Act, s 5I
[177] - [182]
CL Act, s 5K, 5L
[183] - [192]
Conclusion on CL Act defences
[193]
Issue 3 - Alleged contributory negligence
[196] - [206]
Issue 4 - Alleged waiver of litigation rights
[207] - [209]
Issue 5 - Damages assessment
[210] - [292]
Plaintiff's probable life span
[211]
Non-economic loss
[212] - [221]
Past gratuitous domestic assistance
[222] - [253]
Past paid domestic assistance
[254] - [261]
Future domestic assistance
[262] - [275]
Future out-of-pocket expenses
[276] - [281]
Future treatment expenses
[282] - [290]
Past out-of-pocket expenses
[291]
Summary of assessment
[292]
Disposition
[293]
Costs
[294]
Orders
[295]
Nature of case
The plaintiff, Mr Dennis Neate, claims damages for personal injury due alleged negligence against the defendant, Dr Robert Fox, for injury the plaintiff sustained when he fell whilst disembarking from the port side wing of the defendant's vintage aircraft at Bankstown Airport on 22 February 2009. No steps had been provided for disembarking passengers. Liability for the plaintiff's injury was contested. The proceedings are governed by the provisions of the Civil Liability Act 2002 [" CL Act "].
Issues
During the proceedings, the following issues arise for determination:
Issue 1 : Whether the defendant owed the plaintiff a relevant duty of care, and whether there was a causally relevant breach of the duty owed, having regard to the requirements of s 5B, s 5D and s 5E of the CL Act for proof of negligence and damage (" the negligence and causation issue ");
Issue 2 : Whether the CL Act defences concerning dangerous recreational activities and assumption of risk have been made out (" the CL Act defence issues ") ;
Issue 3 : Whether the defendant has established contributory negligence on the part of the plaintiff, as alleged; (" the contributory negligence issue ");
Issue 4 : Whether the plaintiff had waived his right to bring these proceedings (" the waiver issue ");
Issue 5 : The assessment of the claimed heads of damage (" the assessment of damages issues ").
Summary of findings
I have accepted the evidence of the plaintiff on critical matters. I have concluded that the injury sustained by the plaintiff occurred as a result of breach of duty of care and negligence on the part of the defendant. I have found that the plaintiff has established causation in the terms required by s 5D and s 5E of the CL Act 2002. I have found the defendant has not established any of the defences relied upon. I have assessed the plaintiff' entitlement to damages in the amount of $506,330.
Assessed heads of damage
The plaintiff's revised claim is for 7 heads of damage. These heads of damage, and the related damages submissions by the parties are summarised below, together with the paragraph references to my assessments of the various heads of damage claimed:
Head of Damage claimed by plaintiff
Plaintiff's Submissions
Defendant's Submissions
Award
Paragraphs
(a) Non-economic loss
$286,000
$52,000
$265,000
[212] - [221]
(b) Past gratuitous assistance
$38,782
$30,703
$39,924
[222] - [253]
(c) Past paid assistance
$Nil
$2,280
$3,556
[254] - [261]
(d) Future domestic assistance
$112,054
$24,500
$95,246
[262] - [275]
(e) Future out-of-pocket expenses
$9,361
$1,800
$7,956
[276] - [281]
(f) Future treatment
$74,774
$26,175
$35,000
[282 ] - [290]
(g) Past out-of-pocket expenses
$59,648
$59,298
$59,648
[291]
Totals
$580,619
$196,756
$506,330
-
Facts
In the paragraphs that follow, unless otherwise stated, I set out my findings of fact.
Plaintiff's pre-accident situation
The plaintiff was born in 1941 and is presently aged 70 years. When he was injured, he was aged 68 years. He had left school when he was aged 15 years. Thereafter, he had worked as a telegram boy and then in the panel beating industry until aged about 20 years, at which time he joined the NSW Police Service in 1961. He served as a police officer for about 20 years until about 1981. He then worked as a field officer for the Police Credit Union for about 10 years, as well as working for another credit union before setting up his own business as a financial planner. He conducted that business for some 15 years before retiring from work in 2006.
The plaintiff has been married to his wife Judith Neate for 38 years. They have two adult children who no longer live at home. They have 4 grandchildren ranging in ages from 5 years to 19 years. Before his injury, the plaintiff enjoyed reasonably good health. He had no significant medical or psychological problems. Many years ago he had a benign adrenal tumour removed but there were no lasting problems from that condition.
In January 2008, against a background of increasing visual problems, Mrs Neate experienced a sudden loss of vision. This left her with only 50 per cent vision in her right eye and no vision in her left eye. Overall, she has substantial visual impairment. As a result she became dependent upon the plaintiff to assist her in commonplace everyday physical tasks, including household tasks. The plaintiff has been her carer, and for that purpose, he has been in receipt of a carer's pension.
Since his retirement from work, and until the time of his injury, which is the subject of these proceedings, the plaintiff has pursued his interests regarding model aircraft, membership of the Historical Aircraft Restoration Society, HARS, as well as membership of marching bands as a drummer.
The plaintiff's HARS involvement had him participating in ground activities associated with air shows, as well as at times carrying out mechanical and related restoration work tasks on vintage aircraft under the direction of engineers and other skilled qualified persons. He pursued this activity on a voluntary basis because of his passion for the restoration of such aircraft.
In mid-2008, the plaintiff and his wife purchased a mobile home and used it to travel along the east coat of NSW. A photograph of that vehicle was tendered as Exhibit "C". The use of that vehicle for travel was a recreation they both enjoyed, despite Mrs Neate's impaired vision. Before his injury the plaintiff had planned to spend significant time in his retirement years travelling in their mobile home as well as also pursuing his other hobbies and interests.
Background to the accident
In about 2008, in connection with his involvement with HARS, the plaintiff met the defendant, Dr Robert Fox, a specialist orthodontist who owned a number of vintage aircraft. One of those aircraft, a Dragon Rapide propeller craft of the 1940's era, had been undergoing restoration work over time. The original purpose of the aircraft was for use as a navigational trainer for the Royal New Zealand Airforce during WW II. The aircraft was normally kept in a hangar at Bankstown Airport.
Various photographs were tendered showing the general appearance and configuration of the aircraft: Exhibits "D", "E", "F", "G" and "5". It is apparent from those photographs, and as was explained in the evidence, that pilot and passenger access and egress was obtained from a door located over the downward sloping port wing. At that location, there was a rubber treaded reinforced standing area on the wing, where the trailing edge of the wing was 80cm from the ground. The only other entrance to the aircraft was a smaller luggage door on the starboard side, away from the wing and more towards the tail of the aircraft. That door was not generally used for access and egress.
In about 2008, the plaintiff had been introduced to the aircraft in the course of carrying out some voluntary work to assist with repairs to a handbrake mechanism.
In the course of those events, in the year before his accident, the plaintiff had obtained access to the interior of the aircraft to work on a number of occasions. He had generally been engaged in such activity on about one day a fortnight. On each occasion the plaintiff obtained access to the aircraft he used moveable external steps that were available at the hangar that had been provided for that purpose.
As the plaintiff was 6'2'' tall, such access and egress involved him in clambering onto the wing and then crouching whilst traversing the doorway and bending forward to a degree whilst he was within the aircraft as there was insufficient room for him to stand fully upright. In the course of the events thus far described, on multiple occasions, the plaintiff had managed to obtain access and egress to and from the aircraft without incident.
In 2008, in connection with his work with HARS, the plaintiff had committed himself to work as a volunteer assistant at the Albion Park Air Show. In order to get there, he travelled to Bankstown Airport with a friend and former client from his former practise as a financial advisor, Mr Henry Knight, with whom he shared a common interest in vintage aircraft. There, the plaintiff met Dr Fox, who flew him and the others present to the air show at Albion Park in the Dragon Rapide aircraft the subject of these proceedings.
In the course of the 2008 flight, the plaintiff boarded the aircraft at Bankstown by using an aluminium folding stepladder that had been provided for that purpose and stored on the aircraft during the flight. He disembarked at Albion Park also by using those steps. Similarly, he boarded the aircraft at Albion Park for the return flight by also using those steps. He also alighted from the aircraft at Bankstown by the use of those steps. These events also occurred without incident or difficulty.
Following the 2008 flight, the plaintiff had no further contact with Dr Fox or with his Dragon Rapide aircraft from that time until the day of his injury on 22 February 2009.
Dr Fox indicated that he had owned the Dragon Rapide, which was built in 1942, for about 10 to 12 years, and over that time various restoration work had been undertaken on it under the supervision of Mr David Thiess, a Qantas pilot, who also had aeronautical engineering qualifications and certifications, and a common interest with Dr Fox in the restoration of vintage aircraft.
In his evidence, Dr Fox confirmed that it was probable that for the 2008 flight to Albion Park, the aluminium folding steps were taken on board the aircraft for use in disembarkation at Albion Park and again at Bankstown. However, subsequently, Dr Fox decided to remove those steps from the aircraft. His explanation for the removal of the aluminium steps from the aircraft before the 2009 Albion Park flight was as follows:
"...
A. We had had some issues with the aluminium steps beforehand. If you look at the construction of these steps they're quite vertical at one spot and people were tending to come off the wing facing towards the tail plane and putting their foot on the top of those steps. Those steps have got very sharp pointed feet on them and they're quite rickety. The steps are designed for someone to go up facing inwards to the steps and have the ball of their foot on the steps so if you actually get onto the top of those steps and place your heel on them they become very rickety and we had a couple of incidents where people dismounted from the airplane, put their feet on the top steps then tried to put their next foot down the next step and the whole issue had gone backwards. When that had occurred they had fallen forward so I made the decision and it was my decision that we should not bring those steps because they tended to be unstable and especially on the grass where we were going to, they were very unstable.
Q. Did you have anything to facilitate the passengers boarding the plane in Bankstown on the leg to Albion Park?
A. No, that was interesting because if somebody had mentioned anything about that we could've got the wooden steps out and
Q. I take it from that answer you did not get the wooden steps out?
A. No, no, we didn't. We didn't have any requests."
The defendant called Mr Thiess, who was also a vintage aircraft enthusiast and who at the relevant time, had been a member of HARS and who had worked on the maintenance and certification of the Dragon Rapide, which is the subject of these proceedings. Mr Thiess stated he had been introduced to the plaintiff by Mr Knight some years earlier. The plaintiff denied that introduction. I consider that area of disputed evidence to be a peripheral matter upon which nothing material turns.
Mr Thiess, who was also 6'2'' tall, gave reconstructed evidence of his belief that he had met the plaintiff on a single occasion some years earlier and had briefed him on the appropriate method of access and egress in connection with the aircraft in accordance with his usual pattern of instruction given to persons who were not already briefed and acquainted with such procedures. He stated he had observed the plaintiff comply with his instructions on the day when he went about his delegated maintenance tasks.
Mr Thiess initially stated that the rubber treaded standing area on the port side wing at the level of the trailing edge of that wing was just above the height of his knee as he stood against it. He later changed that evidence to a measurement significantly higher, at mid-thigh level. It was subsequently agreed that measurement was 800mm above ground level.
Mr Thiess confirmed that the photograph of the wooden maintenance steps that comprised Exhibit "2" showed the steps which were used at the hangar he and Dr Fox owned and shared at Bankstown. He stated that he had not seen those steps inside the aircraft in question and he would certainly not attempt to place them inside the aircraft because of safety considerations.
Mr Thiess confirmed that he had not previously seen the aluminium folding steps shown in the photograph comprising Exhibit "3" to be located inside the aircraft in question. He stated that he would not use that type of ladder in the aircraft as he did not like them. Although he conceded that the ladder would fit in the aircraft in the luggage holding area, he stated that it was not common for such ladders to be used for access and egress.
Mr Thiess described the location of a structural steel bar inside the aircraft and located to the forward left hand corner of the port side doorway, which could be used as a handhold for aircraft access and egress.
At about 9.00am on Sunday 22 February 2009, by pre-arrangement, the plaintiff was driven to Bankstown Airport by Mr Knight, for the purpose of travelling to the Albion Park in order to participate in the air show to be held there on that day, and where the Dragon Rapide aircraft, and another of Dr Fox's vintage aircraft, would form part of the static display at the air show.
Before boarding the aircraft, the plaintiff queried Dr Fox about the absence of the steps that had previously been available to assist with boarding the aircraft. Although this conversation was not recalled by Dr Fox, I accept the evidence of the plaintiff that Dr Fox then advised him that he did not have the steps available that day.
Without assistance, and without further question, the plaintiff then proceeded to board the aircraft, along with 4 other persons. He did so by manoeuvring himself into a kneeling position on the port side wing and by grabbing onto the door frame of the entrance doorway in order to pull himself up and to then scramble into the aircraft. The plaintiff did not request or receive instruction on how he should board the aircraft without steps. He said he saw no point in doing so as he worked out how he would achieve this by using his commonsense.
Dr Fox stated that before take-off from Bankstown he gave what he described as a standard safety briefing but since he had given so many such briefings over the years, he could not recount exactly what was said in that briefing. There was no suggestion in his evidence that the briefing extended to matters of safe access and egress. Another passenger on that flight was Mr Phillip Warren.
The defendant called Mr Warren, whose out of work interests included vintage aircraft. It was in that connection that he had known Dr Fox for about 11 years. In his spare time he occasionally did some sweeping at the Bankstown hangar where the aircraft was normally housed.
Mr Warren had met the plaintiff for the first time on the day of the accident. He did not see the plaintiff's accident but was able to recount events that occurred both before and after it had occurred. He was one of 5 persons on the aircraft on the journey to Albion Park, and one of the 6 people on the return journey to Bankstown.
Mr Warren was the first person off the aircraft at both the Albion Park and the Bankstown landings. This meant he was the last one on the aircraft to enable him to get off first. It was clear that Dr Fox regarded him as part of the crew because Mr Warren took on the role of getting on the aircraft last to make sure the door was locked, and for disembarkation to make sure the door is latched open. On landing. Mr Warren took on the task of chocking the port wheel at Bankstown because of the slope in the tarmac. It was clear that these roles were undertaken with the concurrence of Dr Fox, for otherwise, he would have either asked someone else to do these tasks, or attend to them himself.
Mr Warren confirmed that before he alighted from the aircraft he had not heard Dr Fox make any announcements as to what to do, which in my view confirms that Dr Fox had regarded Mr Warren as a de facto crew member for the purposes of opening the door and chocking the wheels to allow safe disembarkation.
Mr Warren did not actually see the plaintiff's fall. He saw the plaintiff laying on his back on the ground as he walked around the aircraft. He said he saw the plaintiff's feet about 5 feet from the trailing edge of the wing and his head about 2 to 3 feet from the tail.
The defendant called Mr Henry Knight to give evidence. Mr Knight was a former Qantas Aeronautical engineer who was also a member of HARS. He had known the plaintiff for some years as his former financial advisor, and he had introduced the plaintiff to HARS. On previous occasions they were members of a car pool for travel to Albion Park for HARS activities. Mr Knight knew Dr Fox and he was familiar with the aircraft as he had carried out some work on it in the past.
Mr Knight stated that at Albion Park, on the day in question, he recalled Dr Fox giving a briefing near the aircraft before the flight to Bankstown. He thought all were present, from which description I infer he was also including the plaintiff. He could not recall exactly what was said by Dr Fox as he had been to so many briefings over time. He said he did not hear any briefing about steps.
Mr Knight, who was also 6'2" tall, described his own way of getting aboard using his knee on the wing and pulling himself up. He did not see the plaintiff disembark at Bankstown, but he described his own method, which was to squat down, then sit on the wing swing his legs over the side and just slide off. When he did that, whilst sitting on the wing, his legs would be some 6 to eight inches above the ground. He had been familiar with this method for some 50 years. He first saw the plaintiff laying on his side on the ground and in difficulty with his leg whilst he was himself disembarking the aircraft.
Dr Fox referred to a document described as the "Blood Chit" as being in the aircraft: Exhibit "6". There is no evidence to support the proposition that this document or its contents had been drawn to the attention of the plaintiff either before or during the flight. Nor is there any evidence that contradicted the evidence of the plaintiff to the effect that he had never seen the document before.
Mr Knight described how during the flight to Bankstown, he had taken the document described as a "Blood Chit" from the rear of the seat in front of him and was reading out aloud to the passenger beside him. He could not say whether the plaintiff had either read a similar document or had heard him read this particular document.
When Mr Knight was cross-examined about the method of aircraft access and egress, he said he could not carry this out in the manner described by Mr Thiess because he lacked the agility to do so in that he could not get his leg into the required position on the wing.
Mr Knight confirmed that on an earlier occasion, he had accessed the aircraft by using steps that had been carried on the aircraft. He identified these steps to be of the light aluminium variety as shown in Exhibit "3". He confirmed those steps were absent on this particular occasion, and he confirmed that Dr Fox had not issued any warnings as to how to alight from the aircraft without steps.
Mr Knight stated that although he personally did not like the aluminium steps as shown in Exhibit "3", in 2008, he had successfully used them to get on and off the aircraft on a previous trip to Albion Park and return to Bankstown.
Dr Fox thought he was the last person to board at Bankstown, in contrast to the evidence of Mr Warren, who thought he was the last to board. The difference in this evidence is not material to the resolution of the issues. He confirmed that disembarkation at Albion Park was without incident.
After a half hour flight to Albion Park, the aircraft was parked onto a grass verge where other passengers had started disembarking. The plaintiff was the third person to disembark. He did so by making his exit out of the port door by moving backwards, placing both feet onto the reinforced portion of the wing, holding onto the door frame with his right hand, and when he reached the trailing edge of the wing, he then manoeuvred himself onto the ground by first lowering one leg down onto the ground and then lowering the other leg in the same manner when the first foot was close to the ground, and then letting go of the door frame at some stage of his descent to the ground at a point when he thought it was safe to do so. The door frame did not have any fitted handles or dedicated grasping points for a formal handhold. By the above process, the plaintiff achieved egress from the aircraft without incident or injury, and without the aid of steps as none had been provided.
At the end of the activities of the day at Albion Park airfield, the plaintiff and others boarded the aircraft again and Dr Fox flew the aircraft on the return flight to Bankstown. There were no steps provided for boarding at Albion Park. The plaintiff neither sought nor was given advice as to access on that occasion. At Albion Park the plaintiff boarded the aircraft by lifting his knees onto the portside wing, grabbing the door frame on his right, and then pulling himself up to the point where he could get into the doorway of the aircraft. The return flight was uneventful and the aircraft arrived at Bankstown at about 4.00pm that afternoon.
As to whether there had been a pre-boarding briefing at Albion Park, Dr Fox gave conflicting evidence. At T197 he stated that he did not say anything to boarding passengers at Albion Park because they had already received everything in the way of information, and the additional passenger taken on there, Mr Warren's son alrea dy had aviation knowledge. At T 220.45 he re-iterated that explanation.
In contrast, at T221.50 to T222.3, Dr Fox suggested that the reason a repeat instruction had not been given to passengers on the ground at Albion Park before the return journey to Bankstown was because of time constraints associated with a need to make a hasty departure on account of the need to beat the weather. That evidence was in the following terms:
"...
A. On the day it was probably an error on my behalf that it happened. On the day we were told to meet at a particular time and it was either Mr Neate or Mr Knight didn't turn up at the right time and there was a hasty departure so that we could beat the weather back to the area."
Dr Fox described the flight as being euphoric and exciting for him because two of his vintage aircraft were being flown together on the return flight to Bankstown.
Dr Fox agreed that he regarded Mr Warren as an authorised member of his crew at the time of the landing at Bankstown. In this regard, Dr Fox stated that there was an unspoken understanding with Mr Warren that he would first disembark and stabilise the aircraft by chocking the wheels on a gently sloping portion of the tarmac whilst Dr Fox operated the foot and handbrake before engine shutdown, and before other passengers disembarked. In order for him to operate the brakes in that way, it was necessary for Dr Fox to remain at the controls. Therefore he could not be the first to disembark and supervise or assist passengers in their disembarkation. In this context, Dr Fox stated that Mr Warren knew what to do once the aircraft had landed, and this was assumed by him.
The aircraft was not fitted with in-flight intercommunication devices and the vintage aircraft engine made a significant noise so that in-flight communication between pilot and passengers was not practicable.
Dr Fox acknowledged that as part of the authorised crew, Mr Warren could have been directed by him to assist passengers once he had himself disembarked. Dr Fox stated this had "[n] ever occurred to me because the people had perceived aeronautical knowledge ".
Dr Fox described the events from the time of landing to his first awareness that the plaintiff had fallen in the following extract of his evidence:
"Q. When you got back to the hangar did you stop the plane in the hangar or outside the hangar?
A. The hangar was locked as we were away from it, and so we taxied up to the door of of the hangar and partially rotated the aeroplane.
Q. How did you partially rotate the aircraft?
A. Well what you do is
Q. By staying in the aircraft or did you have to get out?
A. No, by staying in the aircraft.
Q. That's all I need to know, thank you. After you partially rotated the aircraft, what happened then?
A. Well that was a that is one spot where there's a slight tilt on the concrete and it's very important for the chocks to be in at that stage, so I have to sit in the cockpit after the engines are turned off with both the handbrake and the footbrakes fully applied until the until the chocks are placed.
Q. Who was charged with chocking the aircraft at Bankstown?
A. Phillip Warren was charged with doing that.
Q. Did he have to disembark to do that?
A. Yes he did.
Q. Did you see him do that?
A. No. But I sensed that he had done because I saw him to the left of coming around and the engines hadn't fully shut down the time I saw him first of all, and so he got off probably just prior to the engines stopping rotating.
Q. What happened then?
A. He would then chock the wheels of the aircraft once the engines had stopped turning, and I once I was sure that the engines had stopped turning, could take my feet off the footbrakes and apply the handbrake which were there.
Q. Was the plane then stable after you'd taken those
A. Yes.
Q. braking manoeuvres?
A. Yes, but it was stabilised by both the chocks and the brake.
Q. What happened then?
A. I was then turning off the radios, turning off the electrical system and Phillip Warren came back into the aeroplane and I remember him saying, "We have a problem"."
Dr Fox then went to the exit door and saw the plaintiff on the ground.
Dr Fox agreed that on the day in question, he did not have a stepladder or steps for aircraft access and egress as was the case in 2008. He agreed that some time after the 2008 air show, he had formed the view that the A-frame type aluminium ladder previously used for access and egress was too rickety to take or use for such purposes, so he removed it without replacement. He agreed that a replacement ladder was not an expensive item, and could probably have been purchased for something of the order of about $30.
Dr Fox explained that he did investigate other types of stepladders that were less rickety in his view, and he decided they were unsuitable. His explanation for the basis of that view was as follows:
"A. Basically to look and see what was in the marketplace which was there.
Q. And did you take a measure with you, a tape measure to do that?
A. No, I looked at the structure of the steps. The essence of the problem is not the size or the shape of the steps as such. It's how they're being used. The problem is that when people come down from that stepping area, if they come down face forward they're going to put their heel on the top of that ladder or their heel on one of the steps which are there and propel themselves forward and knock the step over and that's why I considered them unsafe.
Q. Surely a person could get out of an aircraft just by stepping down, facing back towards the aircraft, couldn't they save to step on those three steps and get to the ground?
A. If they do it properly but the majority of people don't do that properly. They normally come out facing towards the tail and they're tempted to do to jump, to put their feet on the top of that ladder.
Q. If the ladder were of a height that was level with or fractionally under the bottom of the door frame of the Dragon Rapide, they'd be quite suitable for getting in and out of the Dragon Rapide, wouldn't they doctor?
A. No, because they would need to be stabilised to the wooden frame of the aircraft and you can't do that.
Q. That's the purpose of them being an Aframe ladder, isn't it doctor, that they're stabilised by having two sets of legs?
A. Only if they're on a concrete or solid base, not if they're on grass.
Q. The Bankstown Aerodrome tarmac is a solid base, isn't it?
A. Yeah, but we normally use the wooden ladder for that.
Q. But it is a solid base and would be quite suitable for Aframe ladders, wouldn't it doctor?
A. I don't think so, because they're not stable enough to walk down backwards.
Q. Surely, doctor, they're just ordinary kitchen steps, they're perfectly stable I suggest?
A. Ordinary kitchen steps are stable when you use them properly and it's an inanimate object and if it's not being used properly it's a dangerous thing.
Q. How would you regard it as the proper use of such steps doctor?
A. You would ascend them forward and you would and come back down reversing, but when you're putting those adjacent to the wing of an aeroplane, people will tend to come down the steps with their heel on the top of it and their heel on each of those steps rather than the ball of their feet.
Q. Couldn't you simply explain to people before they get out, make sure you use the steps this way, not some other way?
A. You probably could.
Q. Why did you not do that instead of remove the steps, doctor?
A. Because I couldn't trust people to come down the ladder that particular way.
Q. Because you weren't explaining to them how to do it properly. Would that be correct?
A. No.
Q. Had you explained how to do it properly, people would have known how to use the steps properly, correct?
A. People are human beings. The problem is that with the steps that are there they will use them improperly."
Dr Fox agreed that rather than replace the stepladder that he had earlier removed, he required his passengers to disembark from the aircraft without the assistance of any steps, a ladder or anything.
This was in the context where he acknowledged that he was the owner and pilot in charge of the aircraft, and the passengers were his guests. He agreed he could have told his passengers to wait until he had alighted from the aircraft before they commenced to disembark, and that he could have directed or assisted the passengers to alight, but he chose not do so. He also agreed he had not inquired of any of his passengers as to whether they were proficient in getting out of an aircraft without a ladder or steps, and he had assumed that they had the knowledge of how to disembark safely, because of his perception that they had aeronautical knowledge.
The plaintiff tendered a photograph of a de Havilland Drover aircraft which was of a different era and construction, but which showed an access door on the port side partly over the wing and partly on the fuselage towards the tail: Exhibit "H". The purpose of the tender was to show a 2 stepped aluminium ladder affixed to the structure of the aircraft at the base of the exit to enable access to and from the ground. I accept that aircraft was significantly different to the Dragon Rapide. It was not of the same vintage and state of vintage restoration and the Dragon Rapide did not have such a ladder as part of its fittings and fixtures. Exhibit "H" is of limited assistance to the plaintiff because his case must be based on a failure to provide externally located steps for disembarkation, and not a failure to provide steps fixed or capable of being fixed to the body of the aircraft.
The defendant sought to tender a series of 4 photographs showing Mr Thiess at various stages of entering the aircraft from the port side wing and door. MFI "3". That tender was rejected because it purported to be expert evidence and the manoeuvres sought to be demonstrated by means of those photographs was readily apparent from the evidence in any event, and that evidence had not been previously served in accordance with the rules: UCPR r 31.10.
Events of the accident
After the aircraft landed at Bankstown, Dr Fox taxied it over to the hangar, where it was parked. The aircraft was shut down and immediately following this, the plaintiff heard the port door open. At this time Dr Fox was still at the controls in the pilot's seat. The plaintiff had been seated a row or two behind the pilot. At this time, the plaintiff turned to see the open door and he saw two passengers get out. He was not aware who had opened the door but it had been opened from the inside.
The plaintiff then stood up and proceeded to walk towards the door in order to disembark the aircraft. Again, there were no steps or ladders provided for that disembarkation. He proceeded to leave the aircraft in the same manner that he had disembarked at Albion Park airfield earlier that day.
The plaintiff proceeded to make his exit from the aircraft by backing himself out of the port side door. When he reached the point at which he was standing with both feet on the reinforced portion of the wing, he held onto the door frame with his right hand, and as he did so he walked backwards, until he felt that his feet had reached the trailing edge of the wing.
At that time, whilst still moving backwards, the plaintiff placed his left foot over the edge of the wing and lowered it, endeavouring to place that foot down onto the ground. In this process, he lost his right hand grip on the door frame of the aircraft and then lost his balance and fell backwards about a metre, falling heavily onto the concrete tarmac. The plaintiff described a difficulty in maintaining his handhold during his descent and before he fell. In these events, he said he heard a loud cracking sound, he said he had also felt extreme pain in his left hip and leg, he was unable to move his left leg, and he could not get up.
When cross-examined about the sequence of events that led to his injury, the plaintiff gave the following evidence:
"Q. Did you think that it was a method that might be unsafe?
A. I didn't. Yes I at the time I would have thought it was probably not the right way to do it, but it was the only way I could get off the aeroplane.
Q. So I come back to ask you, you say you didn't raise that concern with anybody at the time. If you felt it was unsafe, why not?
A. I thought I would be able to get off quite okay because I got off the first time that way, but
Q. No, I'm talking about at Albion Park, not the second time. At Albion Park when you got off the plane the first time and you felt it was unsafe. Didn't you say something to somebody then?
A. No.
Q. That, look, I'm not happy with getting off the plane that way?
A. No. No I didn't.
Q. Why not?
A. I don't know why not, I just felt I could do it, but, no, I didn't.
...
Q. There was nothing to prevent you from asking somebody else to help you or give you some sort of support as you were getting off the plane?
A. That's correct.
HIS HONOUR
Q. Do you feel the need to ask anyone for assistance or support in the manner suggested?
A. No, your Honour. Not at the time, I didn't.
Q. Why not?
REYNOLDS
Q. Why not?
A. Well I just as I said, I thought I could manage to get off the that way that I did at Albion Park; it felt reasonably comfortable to get off.
Q. Then you say that you felt that it was unsafe?
A. Mm.
Q. Is there not a contradiction in the fact that you felt that it was unsafe but that you didn't ask for any assistance in circumstances where you say you could have?
A. I know that it was not the right way to get off without steps, so I had to get off what the best way I though was possible."
Although the plaintiff had acknowledged that he had lost his hand grip whilst alighting from the aircraft, that evidence must be viewed in the correct context in which it was given. The grip in question was one handed, and in the circumstances, it could not have been anything more than a steadying grip used in the course of descent. It could be reasonably suggested that the plaintiff's fall could have been prevented by him maintaining that grip as it seems to me unreasonable that during his descent from the wing, a single-handed grip would have held the plaintiff upright and prevented him from falling whilst stepping down towards the ground in a backwards movement. It would have been unlikely that a maintained steadying grip would have prevented the plaintiff from misplacing or misjudging his footing.
In cross-examination, the plaintiff was asked whether he had considered leaving the aircraft with a forward rather than a backward movement. He said he had considered doing so but that this would have involved him jumping down from the wing, which he considered to be a dangerous manoeuvre compared to the method he had adopted.
It was suggested to the plaintiff that he had jumped from the wing. He denied that suggestion. No evidence was called to support the proposition that the plaintiff jumped. I am satisfied that the plaintiff's denial was truthful.
After the plaintiff had fallen, people came to his assistance and he was then taken by ambulance to Bankstown Hospital.
Injuries
In addition to the shock of the fall, when the plaintiff landed on the ground he sustained a sub-trochanteric fracture of the neck of the left femur as he fell on his left side. Subsequently it was ascertained that the plaintiff had also suffered an injury to his left hip and a compression fracture of the spine in an unspecified location in his back.
Treatment
After the plaintiff had received initial attention from the ambulance service, he was then taken to Bankstown Hospital where he came under the care of Dr S P Tan, a consultant orthopaedic surgeon. Whilst at Bankstown Hospital Dr Tan arranged for the plaintiff to be transferred and admitted to the Kareena Private Hospital. The plaintiff remained there as an in-patient for 44 days, from 22 February 2009 until 7 April 2009.
The Kareena Private Hospital records were tendered as Exhibit "N". They show an initial surgical admission between 22 and 27 February 2009, and a subsequent transfer for rehabilitation from that date until 7 April 2009.
On 23 February 2009 the plaintiff underwent an open reduction and internal fixation of his left proximal femur fracture with a long gamma inter-medullary nail that was inserted under general anaesthesia. The plaintiff was kept from weight bearing on the injured leg during the entire time he was an in-patient at Kareena Private Hospital.
The plaintiff said that during his stay in hospital, for some weeks he was given morphine post-operatively. That is confirmed by the medication chart, which confirms that the plaintiff was initially given morphine by PCA or patient controlled analgesia post-operatively for several days. Thereafter, the daily medication chart shows that he was given a variety of daily drugs during his stay in hospital. Those drugs variously included, amongst others, the narcotic drug Oxycontin, apparently daily, from 25 February 2009 to 22 March 2009.
Whilst the plaintiff was in hospital he was given strong painkilling medication for an extended period. For about the first three weeks post-operatively he was unable to get out of bed. Thereafter, he had to use a wheelchair and then a walking frame for mobility. Following his discharge from hospital he commenced an eight week period of intensive rehabilitation for three days per week at President Private Hospital at Gymea. This consisted of weight training and then hydrotherapy. Subsequently, a physiotherapist came to his home to assist him with rehabilitative exercises. After graduating from the walking frame, which he used for mobility for about four months, thereafter, for about a year, the plaintiff used crutches. The rehabilitation treatment at the President Private Hospital ceased on 3 June 2009. At about that time, the plaintiff was able to resume driving his automatic motor vehicle.
On 23 June 2009, Dr Tan reviewed the plaintiff together with his x-rays, and noted that healing was taking place. On 28 April 2010, Dr Tan re-admitted the plaintiff to Kareena Hospital for 9 days for the removal of the femoral nail and associated packing of the resultant cavity left by that removal. The plaintiff was discharged from that admission on 4 May 2010, and was assessed as being a " high fall risk ".
On 24 August 2010, Dr Tan saw the plaintiff again for the last time according to the reports, and noted that he was still limping and that he was in discomfort in the right hip. At that time Dr Tan explained to the plaintiff that the hip was arthritic and would require a total hip replacement procedure in the future.
The plaintiff has no immediate plans for the hip replacement procedure but is aware that the indication for the procedure will be when he reaches the point where he can no longer tolerate the pain he experiences at the injury site.
On 21 April 2009, the plaintiff saw his general practitioner, Dr Philip Loxley. The plaintiff has continued to see Dr Loxley for his medical needs since that time. On 15 March 2011, Dr Loxley prepared an historical report for the solicitor for the plaintiff.
Dr Loxley identified the plaintiff as having suffered a fracture of the left femur and a compression fracture of the spine in an unspecified location. He recounted the plaintiff's complaints of significant back and hip pain, shortening of his injured left leg with a pronounced limp. He described the plaintiff as having lost strength in his left leg, being limited in his tolerance for walking and negotiating stairs, and difficulty getting from the sitting to standing position.
Dr Loxley was of the opinion that the plaintiff would have a permanent disability and will be restricted in his future activities. He envisaged that the plaintiff would still have significant problems with mobility and activities even if he had hip replacement surgery.
Assessment reports regarding injury and disability
On 3 August 2010, at the request of his solicitors, the plaintiff was examined by Dr James Bodel, a consultant orthopaedic surgeon. Dr Bodel noted that in the 28 April 2010 x-ray of the plaintiff's left hip there were signs of an advancing arthritic process in the left hip, and that affixed adduction position was still noted. Dr Bodel thought the plaintiff's presentation was consistent with his presentation. He noted a significant shortening of the left leg, and the reported presence of pain with stiffness on examination. He described the plaintiff's level of impairment as being significant, and that the plaintiff's ability to lead a normal life has been significantly impaired by the effects of the injury.
On 2 March 2011, at the request of his solicitor, the plaintiff was assessed by Dr Peter Morse, a consultant psychiatrist. Dr Morse diagnosed he plaintiff as having major depression. He thought the plaintiff's prognosis was uncertain because of his age and because of the time that had already passed since the injury. The result has been that the plaintiff has become isolated and withdrawn because of his pain, his altered life's circumstances, and his reduced involvement in a variety of activities.
On 18 August 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr James Vote, a consultant orthopaedic surgeon. Dr Vote confirmed the clinical history and made the observation that the fracture had been comminuted, and convalescence had been slow. In addition to the previously reported findings he observed the left leg seemed to be held in a little external rotation, with marked restriction of internal and external rotation and abduction, with early osteoarthritic changes in the right hip. He recorded a history of the plaintiff experiencing a lot of night pain in the back and the hip. He described the left hip as quite stiff, with approximately 2cm femoral shortening.
Dr Vote considered the plaintiff's disabilities to be quite significant. He described the injury as being consistent with both vertical and direct impact of major force. He supported the suggestion for a total hip replacement.
On 25 August 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Fernando Roldan, a clinical psychologist. Dr Roldan reported that the plaintiff presented with significant overt pain behaviour. In the absence of other explanation, I interpret that to mean that the plaintiff looked as if he was in pain, which was consistent with his appearance in court, where he bore a pained facial expression. Following the administration and interpretation of tests, Dr Roldan concluded it was reasonable to consider that the plaintiff met the DSM-IV criteria for diagnosis of Adjustment Disorder with depressed mood, as well as Major Depressive Disorder, Single Episode.
Dr Roldan recommended the plaintiff adhere to a trial of antidepressant medication to be prescribed by a psychiatrist, and that he receive some cognitive behavioural therapy from a clinical psychologist for the residual adjustment issues and depressed mood and frustration.
Disabilities
The plaintiff's account of his post-injury problems was unchallenged. Therefore, given my acceptance of the plaintiff's credit, and my acceptance of his evidence generally, in the absence of significant challenge on matters of history, I propose to treat the evidence comprising the above summarised medical histories obtained by the various reporting doctors as evidence of the plaintiff's post-injury disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.
The plaintiff has been left with significant post-operative scarring to his left hip and thigh. The area of scarring is apparent from a photograph taken not long after the operation: Exhibit "J". The plaintiff is self-conscious of that scarring. It is prominent, discoloured and it causes him discomfort.
The plaintiff found that after the fixation hardware was removed from his upper leg in April 2010, his level of discomfort had not improved. He continues to walk with a substantial limp, which he is unable to correct. This appears to be due to shortening in his right leg. He experiences significant general discomfort in his left leg and hip. There are signs of arthritis advancing in his left hip. He is unable to walk long distances without the use of a walking cane. After prolonged walking the pain increases and becomes very bad. At night time, the plaintiff finds he cannot sleep properly and he tosses and turns in discomfort. He continues to regularly take painkilling medication.
He has a constant dull aching sensation in the right thigh, and he described experiencing sharp pains on certain movements. I infer from the context of his evidence that this was in the area of the fracture and in the left hip.
The plaintiff's home has undergone some modifications with the installation of safety railings at the entry stairs and in the shower. Since the accident, including to the present time, the plaintiff has required the assistance of NSW Home Care Services each fortnight for 2 hours " plus " to maintain his home. In addition, he has received the regular assistance of friends and relatives as well.
The plaintiff's ongoing limitations and changed circumstances have had a deleterious emotional effect upon him. He experienced distress and a sense of loss, for which his general practitioner referred him to a clinical psychologist. His general practitioner has from time to time prescribed anti-depressant medication for him. This was because he was feeling very low and gloomy. He ceased taking that medication in about May 2011 because he felt it was not assisting him.
He resumed using the mobile home in early 2010 so he and his wife could take some trips. In that year he and his wife took an extended tour of Tasmania but he found it was not easy to manage and he had to stop many times to relax. He ended up selling the vehicle in March 2011, incurring a capital loss of $60,000.
Since the age of 21 the plaintiff had been a drummer in various bands, including the NSW Police Band, and the Burwood RSL Club Band, as well as being invited to perform with other bands. This involved him standing and marching whilst supporting the weight of a 10 kg drum over his shoulders with straps. He has been unable to continue with that activity because he is now unable to manage that weight, as appears from a photograph that demonstrates how such drums are used: Exhibit "K".
The plaintiff experiences difficulty with aspects of dressing and self-care. He cannot put on his own socks or shoes and he cannot cut his own toenails because of difficulty with bending. He therefore tries to avoid using lace-up footwear where possible.
He finds it difficult to manage stairs without the use of the handrail and sometimes needs the support of his walking cane. He is unable to lift boxes and move them about in his garage and he is reliant upon his son-in-law for such things. He cannot stand for prolonged periods and he struggles with getting things in and out of kitchen cupboards because he cannot bend his leg. This struggle occurs regularly because he does the household cooking and the washing up of dishes and the like. He is unable to do home maintenance and does not mow his lawns or clean the leaves out of the gutters of his roof.
The plaintiff finds he has difficulty with walking. He has a shortened left leg. He has limited ability to weight bear on his left leg. It is 2cm shorter and is set in a position, which involves a degree of internal rotation. He cannot squat or kneel and if he attempts this he needs assistance to get up. This occurs when he attempts to pick up something that has dropped onto the floor.
He is now short tempered. He feels flat in his mood, he has difficulty sleeping and feels lacking in energy. His self-confidence has been reduced, he has difficulty concentrating and is distressed by his post-accident problems. He is withdrawn, depressed, and has become socially isolated.
The plaintiff continues to see his general practitioner and he continues to take painkilling medication.
He no longer participates in the physical activities of HARS. He occasionally goes to the location where that activity is undertaken in order to see his friends. However, he is only able to carry out relatively minor tasks associated with aircraft restoration and misses that activity.
Domestic effects of disabilities
As a result of his injuries and disabilities the plaintiff's ability to carry out a range of personal and domestic tasks has become impaired. This has resulted in a need for domestic assistance, which I shall consider separately in conjunction with the claims for past and future domestic assistance.
Subsequent dealings between the parties
Whilst the plaintiff was recuperating as an in-patient at Kareena Private Hospital, there was an occasion when Dr Fox spoke with him by telephone, in which there was a discussion about expenses that the plaintiff had incurred. Dr Fox understood that the plaintiff had out-of-pocket expenses of about $1200. On or about 17 March 2009, which was about 3 weeks after the accident, Dr Fox subsequently went to see the plaintiff in hospital. He took a personal cheque with him for $3000 along with a form of release. The latter document was obtained after Dr Fox had taken advice from his insurer. The plaintiff took the cheque and indicated he would take advice on the release document which ultimately became Exhibit "4". The plaintiff said that at the time he was under the effects of morphine.
Dr Fox was asked whether at this time, he was aware of the plaintiff having taken any medication at the time of that hospital visit. He did not ask the plaintiff whether he was on any medications at the times they had spoken.
In his oral evidence, Dr Fox proffered an opinion that the plaintiff was quite lucid rather than rambling in their discussion on the occasion of his visit, and from that he concluded from his observations that he would not accept that the plaintiff was in any way handicapped by the taking of medications. He was however aware that the taking of morphine, an opiate derivative, could affect judgment and produce a feeling of euphoria.
The plaintiff said that at the time he was provided with the cheque he was asked to sign the document which ultimately became Exhibit "4", which was in the following terms:
" RELEASE
In consideration of the payment of $3000.00 to Dennis Neate of 1 Polk Place, Bonnet Bay, NSW (the claimant) by Robert Fox of 24 Foxall Road, Kellyville, NSW (the pilot), the claimant accepts the payment in full and final settlement and satisfaction of his claim for compensation resulting from an incident involving a DH89A Aircraft Regn VH-UTV at Bankstown, NSW on 21 February 2009 (the accident). The claimant releases the pilot and his insurer from and against all claims, actions and suits of whatsoever nature, howsoever caused and by whomsoever brought as a result of or arising out of the accident.
The payment is without admission of liability and this settlement is to remain confidential."
Although the document was not signed by the plaintiff, and appears to have been handed to him whilst he was under the effects of strong painkilling medication, the defendant initially sought to rely upon its terms as a release from any civil liability he might otherwise have had to the plaintiff arising from the accident in question.
The plaintiff stated that Dr Fox asked him to sign this document on account of the fact that he had to reinsure his planes and it would be very expensive for him to do this if he had a claim against him. The plaintiff denied he was given the cheque for $3000 as a full release of his claim.
The plaintiff agreed that he had expenses to pay at the time but he denied he had asked for this money. He denied that he had understood the cheque for $3000 was intended to be a release for any claim that the plaintiff may have had against the defendant arising from the accident in question.
The plaintiff said, and I accept, that on account of the medication he was given, he could not really remember too much of the events of that day.
There was some pre-litigation correspondence between the plaintiff and Dr Fox between 17 March 2009 and 12 June 2009 concerning the plaintiff's treatment expenses and the possibility of a legal claim. I do not see any purpose in making further reference to that correspondence as the parties made no relevant admissions against interest in that correspondence.
The defendant initially sought to argue that the handing over of the cheque, in conjunction with Exhibit "4", was an accord and satisfaction in respect of the present claim for damages.
I now turn to address the issues that call for decision in the proceedings.
Issue 1 - The Negligence Issue
The plaintiff's statement of claim alleged that the defendant had been negligent in the following respects:
(a) Failure to provide a portable set of steps for disembarkation:
(b) Failure to warn the plaintiff he was in a position of peril because of the required method for disembarkation;
(c) Failure to provide handgrips or handles to assist in the process of disembarkation;
(d) Failure to provide assistance to the plaintiff in disembarking the aircraft.
At the conclusion of the evidence, the plaintiff argued that his injury could have been avoided if the defendant had either: instructed him on how to disembark from the aircraft by using the original steps that had been removed; or by changing the original steps that had been removed; or by warning the plaintiff that he would not have steps available for disembarking; or by instructing the plaintiff on how to safely disembark the aircraft; or by instructing his crew to render assistance to disembarking passengers.
The plaintiff argued that none of these matters involved imposing an unreasonable standard or burden on the defendant, and each could have been achieved at minimal cost.
In essence, the plaintiff's arguments centred upon a claimed failure to provide disembarkation steps, or in the absence of such steps, an alleged failure to provide guidance or assistance with his disembarkation from the aircraft.
I do not consider the allegations made by the plaintiff concerning alleged failure to provide handgrips or handles, to be relevant in this case because the aircraft was a restored vintage aircraft, and handles or handgrips were not part of the original fittings of the aircraft, and there was no evidence of a regulatory requirement for such things to be fitted, as for example is the case with some items that are required to be fitted onto vintage cars, such as turning indicator lights.
The defendant seems to have proceeded upon the basis that the absence of warnings or assistance did not involve negligence on his part because he had assumed that all passengers had the required aeronautical knowledge that obviated any need for discussion or warnings on such matters. That position seems to have been based upon the assumed instruction allegedly provided to the plaintiff at some time beforehand by Mr Thiess, a matter that the plaintiff could not recall, and in fact denied.
Following my examination of the evidence on this point I have concluded that this disparity in the evidence between the recollection of the plaintiff and the recollection of Mr Thiess does not really involve a true credit issue.
This is because there is an ambiguity in the evidence on this point. The plaintiff stated that at the times he had previous access to the aircraft, he had the benefit of steps that had been provided and made available at the Bankstown hangar for access and egress. The evidence of Mr Thiess was that on a single occasion he had shown the plaintiff the correct manner of accessing the aircraft by using the reinforced wing area. That is not inconsistent with the use of steps. Mr Thiess' evidence makes no reference to the presence or absence of steps in that regard.
Even on Mr Thiess' evidence, at some point the plaintiff would have had to stand on the reinforced area of the wing even with the use of steps in order to get himself to the point where he was ready to enter the aircraft door. In those circumstances, I do not regard the evidence of Mr Thiess as being relevantly contradictory of the evidence given by the plaintiff.
In my view, on the evidence, the defendant's submission that the plaintiff had been trained by Mr Thiess on the safe method by which to enter and leave the aircraft was flawed. I accept the evidence of the plaintiff that he had used the steps for access and egress when he was working on the maintenance of the aircraft in 2008, which was the time when Mr Thiess could have seen the plaintiff. It follows that the defendant's reliance on Mr Thiess' evidence involves an overstatement of the content of the so-called training that the plaintiff had received some 16 months beforehand, even if Mr Thiess' account of those events was to be accepted.
On the issue of a warning, in my view it is of some importance to recognize that it was the duty of the pilot or his designated crew member to ensure that the plaintiff was aware of safety issues concerning embarkation and disembarkation procedures. In my view, it is an insufficient answer for the defendant to simply assert that on the basis of his, at the time, unsourced assumption that the plaintiff had received instruction on aircraft access and egress some 16 months beforehand, on the occasion when the plaintiff was doing some work on the handbrake mechanism under the supervision of Mr Thiess, that it was therefore unnecessary for him to provide a specific safety briefing to his passengers on such matters.
Although the plaintiff indicated that he had used his commonsense in determining how he should best enter and leave the aircraft absent the availability of steps on the day of the accident, based upon his knowledge of his own age related abilities, physical flexibility and limitations, in my view that did not absolve the defendant from issuing a safety briefing to the plaintiff and to the others present, on matters of aircraft access and egress.
There can be no question that the defendant owed the plaintiff a duty to take reasonable care, including to the extent of giving consideration to safety and injury issues that could reasonably arise in the course of aircraft access and egress by the plaintiff as a guest passenger. This is not the kind of case where it can be reasonably said that the existence of the duty of care and the content of that duty was contentious: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13]. The plaintiff was the guest of the defendant on his aircraft and the proximity of that relationship required the defendant to have regard to foreseeable risks to the plaintiff's safety whilst he was on the aircraft, including when alighting from the aircraft.
The question of whether or not the defendant had breached his duty of care, and whether as a result, should be found to have been negligent, must be decided in the context of s 5B of the CL Act .
As has been explained by Allsop P in Price v State of New South Wales [2011] NSWCA 341 at [37], this involves consideration of the now recognised statutory formulation of the process of reasoning stated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, at [47]-[48], and requires a contextual and balanced assessment of the reasonable response to foreseeable risk of injury in the given circumstances, applying Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2997) 234 CLR 330 at p 354, [69].
It is therefore necessary at the outset to examine the scope of the duty owed to determine whether in the circumstances, the duty owed extended to an obligation on the part of the defendant to take reasonable care to ensure that his passengers safely disembarked his aircraft. In my view that question must be answered affirmatively.
I consider this to be so because the aircraft in question was no ordinary aircraft. Being a vintage aircraft, it was not fitted with any stairs, steps, disembarkation handrails or grips commonly seen for example in commercial passenger aircraft. The principal method of construction of the aircraft was timber framing covered by a skin of treated cotton fabric which, apart from a reinforced standing area on the port side wing, was vulnerable to damage if not handled with care. As a result, it was plainly apparent that if the exterior of the aircraft was incorrectly handled, it could well suffer damage to its fabric or structure, and may well not withstand disembarkation forces without risk, including the risk of damage to the fabric of the aircraft, but also a risk of injury to disembarking passengers in the case of a fall. These were matters within the particular knowledge of the defendant, who was therefore best placed to consider and deal with such safety issues.
Furthermore, at some time before 2008, it is plain that the defendant had already considered the question of a safe method of disembarkation from the aircraft. This is evident from the fact that on at least one occasion to the knowledge of the plaintiff, the aircraft carried a set of folding aluminium steps for use in the course of embarking and disembarking. The defendant had decided that these steps were rickety, and he had therefore removed them but he did not replace them with others because, despite looking for other steps, he had found nothing that he thought suitable for the purpose.
In my view, in the context of the defendant taking passengers on his aircraft without such steps, those circumstances at the very least required that the plaintiff be warned and reminded that there was a potential risk of falling whilst alighting from the aircraft where no steps were available to assist in that process. I consider this to be so, quite apart from any duty on the part of the pilot or designated crew members to supervise egress for safety considerations.
The analysis of whether or not the defendant had breached his duty of care, and whether or not he was negligent, has to be considered prospectively as at 22 February 2009, and against those background events.
In my view, the question of whether the act of alighting from the aircraft onto the tarmac carried with it a foreseeable risk of injury where no steps were provided to enable passengers to step from the wing over a distance of 80cm to the ground, has an obvious answer. In that regard, I consider that there was a risk of injury associated with that activity, and that risk must have been foreseeable to the defendant for several reasons.
First, on the previous occasion in 2008 which involved the plaintiff, the steps had been provided for embarkation and disembarkation. Secondly, it must have been obvious to the defendant, who had on many previous occasions himself got in and out of the aircraft, that a person could fall in the absence of a safe hand grip or a firm foothold during the course of access and egress. Thirdly, the defendant based his decision to remove the ladder from the aircraft on his perception that people were not safe from injury whilst using it, or that if the ladder was creating its own risk that disembarking passengers might fall forward when using it, hence the defendant's judgment that it was rickety and unsafe.
In that latter regard, Dr Fox's reasons for withdrawing the ladder from use seem to me to have been based upon the described misuse or unsupervised use of the ladder during disembarkation of some other passengers. In my view, that is an unsound basis for withdrawal of the ladder without replacement in circumstances where passengers were invited onto the aircraft. Moreover, the withdrawal of the availability of the ladder is a compelling reason to provide supervision and assistance to disembarking passengers in order to appropriately address the risk of a fall and the related risk of resultant injury.
On those considerations, I conclude that at the time the plaintiff travelled on the aircraft on the date in question, the risk that he might be injured from a fall, when viewed prospectively, was a foreseeable one: s 5B(1)(a) of the CL Act .
The next question to be addressed in the analysis is that of determining whether or not the risk of harm from alighting from the aircraft by stepping down some 80cm or so from the top surface of the wing onto the tarmac without the aid of steps, was not an insignificant one in the circumstances. The harm under consideration is that of sustaining injury from a fall occasioned in the course of disembarking.
In this regard, I consider that the risk of harm associated with that activity was not insignificant.
First, it is a given, based on a commonsense analysis, that any descent from the wing by lowering a foot down over a distance, particularly a distance of 80cm, which is not a normally encountered stepping height, carried with it a risk of falling. In this instance, the distance over which alighting passengers had to step down in order to reach the ground was far greater than the standard length of the rise of any normally encountered stair or step. In those circumstances, the risk of missing one's step or footing must be seen as being significant, not far fetched or fanciful, and therefore not insignificant.
Secondly, I consider that the risk of an injury from a fall in the circumstances outlined above was greatly increased if the passenger, in this case the plaintiff, was required to alight by stepping backwards and down onto the ground from a wing height of 80cm. This is because he may not have been able to at the same time see where he was placing his foot, and he would have been required to guess or approximate where he was placing his leading or descending foot in relation to the ground in circumstances where any handhold on the door frame was opportunistic, and where there was no dedicated handle or grip.
Thirdly, the risk of a fall whilst descending must be seen to be an increased one where the downward step was required to be taken over a longer distance rather than by shorter steps as would have been the case whilst descending the steps of a short ladder that may have been placed near the wing to facilitate the safe disembarkation of passengers.
In those circumstances, I conclude that when the plaintiff was alighting from the aircraft wing by stepping backwards, and without being provided with a ladder or steps, or assistance or guidance in that procedure, the risk of resultant injury from a fall was most definitely not an insignificant one: s 5B(1)(b) of the CL Act .
Furthermore, I consider that in the circumstances, where the risk of injury was foreseeable, and was not insignificant, a reasonable person would have ordinarily taken precautions against the occurrence of such forms of foreseeable harm: s 5B(1)(c) of the CL Act .
I consider that conclusion to be a compelling one in the circumstances of this case because on at least one previous occasion, to the knowledge of the plaintiff, in similar circumstances, the defendant took one of the very precautions the plaintiff now complains of as being absent on the day he was injured. That precaution was the provision of steps having been made available to the plaintiff and to the other passengers for aircraft access and egress in connection with the flight from Bankstown to Albion Park in 2008.
I also infer from the terms and content of the conversation between the plaintiff and Dr Fox as to the absence of the steps on the day of the accident, that Dr Fox had in fact contemplated continuing to take the precaution of providing steps, but had decided against such a course, for the reasons that he gave.
Given that Dr Fox considered the previous step ladder that he had removed as being inappropriate or unsuitable, if he was to carry passengers on that aircraft, the practical options open as alternatives to Dr Fox were to provide a different and more suitable ladder of sufficient height, stability and construction, or to arrange for either himself or a crew member such as Mr Warren to assist and guide disembarking passengers to alight onto the tarmac.
Instead, Dr Fox had adopted what I consider to have been an inadequate and unreasonable course of not doing either of those things. He did so because he had assumed that no such assistance was required because he understood all of the passengers in question had aeronautical experience. As earlier explained, I consider that position to have been based on unsound reasons that paid insufficient regard to need to discharge the duty of care that was owed in the circumstances. In that regard, there was no evidence as to what action or inquiry, if any, was taken by Dr Fox that led him to the view that his passengers had relevant and sufficient aeronautical or other experience to justify him dispensing with a warning or briefing.
Such an assumption may have been appropriate for example in the case of an aircraft crew member who, to the knowledge of Dr Fox, had been formally briefed on the safe method of alighting from the aircraft, but that was not the case here, especially where before the flight, the plaintiff had specifically asked Dr Fox of the whereabouts of the previously supplied ladder. In my view, that enquiry from the plaintiff ought to have brought home to Dr Fox an understanding of the need to at least consider ensuring that the plaintiff was either provided with a safe means of aircraft access and egress, or that the plaintiff be supervised and assisted to ensure that he accessed and egressed the aircraft safely. Instead, as explained above, Dr Fox responded inadequately to the risk by making an unwarranted assumption that the plaintiff did not need any of these things.
Where the questions of foreseeability of the risk of harm and the risk of harm have been assessed as being significant, and therefore requiring precautions, as I have found to be the case here, there are nevertheless some further factors that also need to be considered before a finding of negligence can be made: s 5B(2) of the CL Act .
The first such factor involves an assessment of probability that harm might occur: s 5B(2)(a) of the CL Act .
In this regard, I consider that it was plainly apparent that if the plaintiff, as an alighting passenger were to lose or misplace his foothold and fall whilst stepping backwards from the wing and onto the ground, it is very probable that a fall onto the tarmac from a foot height of 80cm from the wing surface would be associated with some form of injury. It would appear obvious that if the fall were to occur from the upright or near upright position, the risk of a person's head or torso falling a greater distance than say the feet is likely, and this would appear to raise the possibility of an even more serious injury. Either way, I consider that in the present case, the risk of a fall from the aircraft wing obviously carried with it a very high probability of resultant injury: s 5B(2)(a) of the CL Act .
The second such factor involves a consideration of the likely seriousness of the contemplated harm in the event that such a fall was foreseeable: s 5B(2)(b) of the CL Act .
In the present case, the risk of a fall onto a hard concrete surface must be seen as carrying with it a likely risk of serious harm. Whilst it is not possible to precisely predict the extent to which injury may occur as a result of a fall, however, it seems obvious that if there was to be a fall from the height of the aircraft wing onto a hard tarmac surface over a vertical distance of 80cm, it would be very likely, and not just a remote possibility, that serious injury, including possible fractures, could result from such a fall: s 5B(2)(b) of the CL Act .
Once the foregoing considerations having been satisfied, as I have found to be the case here, the third factor to be considered is the nature of the burden of taking precautions to avoid the risk of harm: s 5B(2)(c) of the CL Act .
In this regard, it is plain that on previous occasions, or at least on one such similar occasion that involved the parties in respect of the Albion Park flight in 2008, a step ladder or steps that were already available and stowed on board the aircraft had been made available for the plaintiff to disembark the aircraft. On the evidence adduced, especially the evidence of Dr Fox, it does not appear that the provision of those steps or stairs was in any way significantly costly or burdensome. This is especially so in the context of Dr Fox owning an aircraft valued at approximately $150,000, as well as 5 or 6 other vintage aircraft.
Furthermore, it does not seem to me to be unduly burdensome in either time, effort or cost, for Dr Fox or his delegated crew member to require that all of the passengers be required to remain seated on the aircraft until either he, or another responsible person, was able to be positioned at the disembarkation point in order to guide, direct or assist alighting passengers as they stepped backwards off the wing and onto the tarmac in the course of making their exit from the aircraft.
Accordingly, I consider that the requirements of s 5B(2)(c) of the CL Act have in this case been satisfied.
The fourth such factor to be considered in this part of the analysis is that of the social utility of the activity that created the risk of harm: s 5B(2)(d) of the CL Act .
I conclude that whilst it is true that the defendant provided the plaintiff with a free return flight to an air show in which they had a common social interest, and this involved a degree of social utility in the pursuit of their common interest in maintaining vintage aircraft, this circumstance did not derogate from the need for Dr Fox to observe and discharge the duty of care that he owed to the plaintiff as a disembarking passenger.
In my view, there is nothing in the circumstances surrounding that free flight which should serve to reduce the defendant's responsibility to ensure that reasonable care was exercised for the safety of the plaintiff whilst disembarking from the aircraft at the conclusion of the flight. Although the flight in question was in the form of a return favour to the plaintiff for freely providing his labour to assist in the maintenance of the defendant's aircraft, I consider it would be unreasonable to regard that fact as a disentitling factor that negatively impacted upon or affected the applicable duty of care that was owed in the circumstances: s 5B(2)(d) of the CL Act .
Accordingly, for the reasons I have stated, I conclude that all of the requirements of s 5B of the CL Act have been satisfied to justify a finding that the defendant was in breach of the duty of care that he owed to the plaintiff, and that he was negligent in the circumstances of this case.
In that regard, the defendant made reference to the remarks of Handley JA in Reece v Reece [1994] MVR 103, at 105.30 concerning the proportionality of non-economic damages having regard to the consideration of the years that would normally remain to the plaintiff where there, a non-prescriptive comparison was being made to a plaintiff aged 64 years and the hypothetical case of a person some 30 to 35 years younger.
In my view, the range submitted by the defendant in this case is manifestly inadequate, and does not represent fair compensation to the plaintiff for non-economic loss.
The plaintiff suffered a serious and disabling fracture to the neck of his left femur and associated soft tissue injuries from the fall. This also involved a back injury and an associated compression fracture. Although surgically treated, his fractured femur has affected his left hip. He has residual surgical scarring which causes him discomfort. The effect of the injury has altered his gait, his ability to weight bear, bend and to carry out a wide range of physical activities that he could previously perform without restriction before the accident.
These restrictions include some self-care activities such as an inability to cut his own toenails and to put on his own socks and tie his own shoelaces. He is unable to carry out the normal home maintenance tasks that he used to be able to do and for which he now requires assistance with some of those tasks. His leisure activities, including plans for retirement travel in a mobile home, participating as a drummer in marching bands and his involvement in the physical and social aspects of restoration of vintage aircraft have also been significantly curtailed. He now has signs of advancing arthritis in his left hip. He also has ongoing back pain. He has had two episodes of surgery and faces the prospect of further major surgery for hip replacement in the not too distant future. The unchallenged opinion from his treating doctor and an assessing surgeon is that surgery will not entirely eliminate all of his physical restrictions and discomforts.
The plaintiff has also developed a major depression and is clearly considerably frustrated and disappointed that in his twilight years, rather than being well and active, he has had to endure, and will have to continue to endure, physical restrictions, pain, discomfort, inconvenience, further treatment, including surgical treatment. He also experiences considerable frustration concerning these matters. In my view, all of these matters, when considered against the background of his pre-injury situation, compel the conclusion that he has and will continue to suffer frustration, and substantial interference and loss to the amenity and enjoyment of his life. The plaintiff is aged 70 years and has a probable life span of a further 16 years, which is a significant period to have to continue to endure such problems, even when allowance is made for the possible reduction in some of the hip related problems if surgical treatment were to be successful.
In these circumstances, I consider that those matters require an assessment of significant damages for non-economic loss in a much higher percentage of a most extreme case than that submitted by the defendant.
In considering the requirements for assessment under the regime of s 16 of the CL Act , which involves an evaluative judgment, and taking into account the physical effects, the scarring, and the psychological effects of the injuries suffered by the plaintiff, including the matters summarised in paragraphs [71] to [103] above, in my view, these matters call for an assessment that equates to 51 per cent of a most extreme case under s 16, namely $265,000. In making that assessment, I have had regard to the plaintiff's relatively advanced age and the related question of proportionality: Reece v Reece . Were it not for the factor of the plaintiff's age, my assessment of non-economic loss would have been of the order submitted on behalf of the plaintiff.
I therefore assess the plaintiff's damages for non-economic loss pursuant to s 16 of the CL Act in the amount of $265,000.
Past gratuitous domestic assistance
On behalf of the plaintiff, a claim was made for past domestic assistance in the amount of $38,782.80, representing 12 hours per week of such assistance over a submitted 126 weeks to the date of the hearing, calculated at $25.65 per hour. The submitted rate is a matter to which I shall shortly return.
On behalf of the defendant it was submitted that the claim for past gratuitous domestic assistance should be assessed at 9.5 hours per week. The defendant submitted that this component of the claim should be assessed at $30,703.05 over the same period.
In identifying the basis for the defendant's submission in this regard, the defendant focussed on only 3 elements within the evidence as the basis for assessment, namely 2 hours per week of assistance provided by the plaintiff's daughter, 7 hours per week provided by the plaintiff's wife for ad hoc assistance, and about 1.5 hours per week provided by the plaintiff's son-in-law for heavy work, pool and roof cleaning.
It seems to me that the defendant's submission has omitted any consideration of other aspects of the evidence relating to the claim for past gratuitously provided domestic assistance which were unchallenged, and which should legitimately form part of the claim for assessment. Those additional elements that were omitted from the defendant's consideration are as follows.
First, there is the matter of the plaintiff's need to have assistance with the cutting of his toenails. This is a service that could not reasonably be said to be provided by Mrs Neate, as she has a substantial visual impairment that would appear to negate her input in that regard. Secondly, there is the matter of the plaintiff being unable to put on his socks and tie up his shoelaces. I infer from the fact that this involves him bending, that the reverse of that process must also be taken into account in any time estimation. The assistance with this activity was described in the evidence as being separate to the ad hoc assistance provided by Mrs Neate for about 1 hour per day. Thirdly, the reference by the defendant to the plaintiff's daughter providing assistance for 2 hours per week fails to take into account the unchallenged evidence subsequently elicited by the clarification of cross-examination of the plaintiff to the effect that such assistance from his daughter was in fact provided for 3 hours on each of 2 days per week, or 6 hours per week, not just the 2 hours identified by the defendant. In that regard, the defendant failed to take into account the evidence as a whole on this area of assistance. Fourthly, the defendant made no allowance for the unchallenged evidence that the plaintiff's sister and his brother-in-law together provide 1 day of assistance every 3 weeks. Fifthly, the defendant has made no allowance to reflect the plaintiff's unchallenged evidence that an unnamed " chap " comes to the house once per fortnight to provide him with domestic assistance.
For the purpose of analysis of the claim for gratuitous domestic assistance, I have identified the combined effect of the evidence of the matters proven by the plaintiff, the matters conceded by the defendant, and the matters that I have identified as having been omitted from the defendant's submissions, in the tabulation that comprises Appendix I to these reasons.
It is plain from the time calculations identified in Appendix I , even after appropriate discounts have been made for matters of care that are arguably excluded from consideration by the operation of s 15B of the CL Act , that the gratuitous domestic assistance provided to the plaintiff to date can be reasonably identified as being a lmost 14 .5 hours per week. This is a relevant analytical framework for the plaintiff's claim for 12 hours per week.
In order to recover damages for past domestic assistance the plaintiff must show that he was provided with such services for at least 6 hours per week and for at least 6 consecutive months: s 15(3) of the CL Act . The plaintiff must also show that he had a reasonable need for such services, and that need arose solely as a result of the injury in question, and would not have been provided to him but for the injury: s 15(2) of the CL Act .
It is therefore necessary to analyse the evidence to determine whether the plaintiff has discharged these statutory thresholds.
Before reviewing the evidence of the plaintiff on the issue of domestic assistance, a survey of the medical evidence relevant to the plaintiff's need for domestic assistance is instructive. As a result of that survey, which I have summarised in the paragraphs that follow, I am satisfied that the plaintiff had a reasonable need for the services claimed, and that such need arose solely as a result of the injury and would not have otherwise been provided to him, and that the services were provided to him consistently from the time of his discharge from hospital on 7 April 2009 until the time of the hearing.
The plaintiff's claim for domestic assistance was supported by Dr Bodel, who considered that from an orthopaedic perspective, the plaintiff would require approximately 10 hours of assistance per week with general household maintenance activities, lawn and garden maintenance, care of the swimming pool and shopping. That estimate of 10 hours per week was not prescriptive, but simply an indication to be taken into account together with the other evidence, especially the unchallenged evidence of the plaintiff.
From a psychiatric perspective, Dr Morse noted that the plaintiff described a lack of ability to do things, and that the plaintiff lacked confidence and motivation. Dr Morse recorded the plaintiff's complaints of discomfort, frustration and anger, together with a described inability to do things for his wife as he used to do. He diagnosed the plaintiff as having a major depression. Dr Morse considered that the plaintiff was impaired in his ability to carry out his normal daily activities.
The plaintiff's general practitioner, Dr Loxley also noted an inability in the plaintiff to perform the activities he performed prior to his injury.
The defendant's experts were not asked to directly consider the issue of the plaintiff's need for domestic assistance. However, relevantly, Dr Vote expressed the opinion that the plaintiff's disabilities prevented him from carrying out the usual external maintenance of his home or drive a motor vehicle for significant distances. Whilst Dr Roldan took a history of the way in which the plaintiff's disabilities affected him carrying out the activities of daily living, his opinions were restricted to the psychological issues upon which he was qualified to comment. He noted there were physical impediments to the plaintiff's return to volunteer work, and in this regard, he deferred to the opinions of the medical experts.
The body of medical evidence tendered by the plaintiff was not challenged or contradicted by evidence called on behalf of the defendant. That evidence has not been shown to be inherently unreasonable. I therefore accept it as a reasonable guide to the assessment of the head of damage under present consideration.
The evidence of the plaintiff on the issue of domestic assistance identified a number of areas where he received assistance with tasks that he was able to carry out himself before he was injured.
On the issue of self-care, the plaintiff described being unable to effectively bend, and he therefore he required assistance with the cutting of his toenails. He also described being unable to put on his socks by himself and he is unable to tie up his laced shoes. He stated that in the summer months this type of assistance would be required about 3 times per week and in the winter months, this was a daily occurrence, on each occasion taking about 10 minutes. Taking an average of 30 minutes per week and 70 minutes per week, this equates to 50 minutes per week. I consider the evidence which I have summarised, was reasonable in the circumstances, and I accept it.
It appears that this particular component of the plaintiff's claim has been understated because there was no mention in his evidence of the time that was involved in providing him with toenail care and there was no mention of the time required to untie his shoelaces and to remove his shoes and socks. I infer from the evidence of the plaintiff's inability to put on his socks and tie shoelaces that he would also have the same problems in reverse. I therefore consider an average of 100 minutes per week should be allowed for these matters, plus some unspecified allowance for the time required for toenail care.
The plaintiff also described difficulty getting up and down the steps in his home, even with the assistance of the handrail. This problem would obviously also apply to circumstances where he would be required to carry objects, including heavy items, which he also described as being a task for which he required the assistance of his son-in-law. I consider that evidence was reasonable and I accept it.
In his evidence in chief, the plaintiff estimated that his son-in-law provided assistance with moving boxes in the garage and heavy items in the house for about 15 to 20 minutes per fortnight in addition to at least about 1 hour per week carrying out the pool cleaning tasks.
I have already referred to the unchallenged evidence of 6 hours of assistance provided by the plaintiff's daughter, who undertook the tasks of cleaning, washing and general housework.
The plaintiff also described how he received the assistance of his son-in-law for " A good hour " once per month cleaning leaves from roof guttering because they lived in a leafy area. I interpret that evidence to describe at least one hour per month which equates to about 15 minutes per week for that type of assistance.
In addition, the plaintiff described how, on an ad hoc basis, if something has been dropped on the ground, he gets down on the ground to pick it up but he then requires the assistance of his wife to assist him to get back on his feet, a manoeuvre that takes about 30 seconds when it is required. Obviously, due to the unpredictable nature of that need, it is difficult to quantify but it is nevertheless a matter that I must take into account. I have done so by including it within the unchallenged evidence of 7 hours of ad hoc assistance provided to the plaintiff by his wife.
The plaintiff described no difficulty with other household tasks such as shopping and cooking. He described how before his injury, and before his wife's vision had deteriorated, they shared the housework equally, but after her vision deteriorated, he took responsibility for between about 75 per cent to 80 per cent of that work.
The plaintiff also described visits by his wife's sister and her husband every 3 weeks, where they spend most of the day, not only for visiting, but assisting by doing various things at the same time, noting that when there are more persons to do the tasks, those tasks become easier. The state of the evidence does permit a precisely reasoned analysis of how much of that day involved the provision of hands-on assistance of the kind required by the plaintiff. That said, that state of the evidence does not require that this component of the evidence be ignored without any quantitative attempt being undertaken to take it into account.
Accordingly, doing the best I can to analyse that evidence, whilst being fair to both parties in analysing the effect of this component of the evidence, I consider it reasonable to assume that the input of the time of that couple in terms of assistance provided, for assessment purposes, would be limited to a core of 4 hours of relevant activity per person, but halved to take into account services provided to the plaintiff's wife, leaving an amount of about 4 hours of such assistance provided every 3 weeks to be taken into consideration.
The plaintiff also described receiving assistance from a man who would visit his home to assist once per fortnight to assist with housework, including vacuuming. The context of that evidence requires that it is a matter that I must take into consideration in estimating the time involved with the plaintiff's receipt of past domestic assistance.
I am satisfied that none of these services would have been required by the plaintiff but for his injury. I have come to this view because I have accepted the evidence of the plaintiff that he had no relevant impairments for performing such tasks before his injury, and it seems to me to be reasonable, given his present physical restrictions, that he should be provided with such services. I am also satisfied that the services described by the plaintiff were not over-stated. In my view, the contrary was true. The plaintiff was careful to delineate housework, shopping, cooking activities and care for his sight-impaired wife which he would have undertaken in any event. This leads me to the view that the plaintiff's description of the assistance he has required was inherently reasonable, justifying an award for this head of damage.
After making some allowances for s 15B considerations, and a degree of understandable imprecision in the evidence describing the services claimed as it is not the kind of activity for which records are normally kept, and also allowing a degree of discount to reflect the fact that when family members and friends provided assistance, there was likely to have been a social component involved in the time spent on the described activities, I consider that the 12 hours per week as claimed by the plaintiff has been demonstrated to be reasonable. In arriving at this assessment, for the reasons I have identified, I consider that the plaintiff has satisfied the threshold requirements of s 15(4) for damages for past gratuitous assistance to be awarded.
The plaintiff's calculation as to the period, which has been adopted by the defendant, appears to involve a mathematical error in that there are 136 weeks from the date of the plaintiff's discharge from hospital on 7 April 2009, until the commencement of the trial on 15 November 2011.
It is a mandatory requirement that any monetary allowance for such services shall not exceed the rate identified in s 15(4) of the CL Act . The submissions put forward on behalf of the plaintiff do not strictly comply with the requirements of s 15(4), because they only refer to the current rate and not the lesser historical rates that applied over the period. I have set out the relevant historical rates and calculations for this item in Appendix II to these reasons. This reveals the required calculation based on the applicable statutory rate, in the total amount of $39,924.
I therefore assess the plaintiff's damages for past domestic assistance in the amount of $39,924.
Past paid domestic assistance
The plaintiff has claimed the cost of past paid domestic assistance that he obtained on a commercial basis. The amounts claimed were for Home Care services for housework at $40 per fortnight and lawnmowing services at $70 per month, claimed as $36.15 per week over a submitted 126 weeks to the time of the trial. This yields the sum of $4555.
The required adjustment to the plaintiff's calculations to incorporate 136 weeks instead of 126 weeks, reveals a corrected figure of $4916.
The defendant has submitted that since part of the need of the plaintiff's wife for domestic services had been provided by the plaintiff since 2008 because of her deteriorating vision, by reason of the operation of s 15B of the CL Act , the amount of the plaintiff's claim should be reduced to $18.10 per week, which, over 126 weeks to the date of the hearing, as was submitted by the defendant, this equates to $2280.60. The adjusted figure for 136 weeks is $2461.
In my view, that submission by the defendant is only partly correct in relation to the assistance provided by Home Care and that amount should be halved to reflect the paid care provided to fulfil the plaintiff's injury related need for services, as distinct from some such services being provided to Mrs Neate.
In my view, the plaintiff's need to engage a lawnmowing service on a commercial basis for $70 per month is not subject to the provisions of s 15B. This is because he was carrying out that activity before his injury whereas after his injury, he was unable to manage it, therefore requiring that lawnmowing be carried out for him at a cost of $70 per month, which I consider to be a reasonable amount for that service as described in the evidence.
Taking these considerations into account, I consider that the appropriate sum to be awarded to the plaintiff for past commercially provided assistance should be calculated on the basis of $10 per week for Home Care services and $16.15 for lawnmowing services, or $26.15 per week, which, over 136 weeks, totals $3556.
I therefore assess the plaintiff's entitlement to damages for past paid commercial assistance in the amount of $3556.
It is not clear on the evidence as to whether some of this amount has been included in the agreed amount of out-of-pocket expenses. If that is the case, the parties are able to seek an amendment of the final orders by consent to reflect such circumstances.
Future domestic assistance
On behalf of the plaintiff a claim was made for future domestic assistance in the sum of $112,054.59. That sum comprised two components, the first being for 12 hours of assistance per week for the ensuing 2 years in the amount of $30,595.32, and the second being for 6 hours per week thereafter for the remainder of the plaintiff's probable life span, in the amount of $81,459.27, in each instance, calculated at the rate of $25.65 per hour. There is no issue that the hourly rate is anything but reasonable, as that rate is the one presently specified by s 15(4) of the CL Act .
On behalf of the defendant it was submitted that the plaintiff's need for future gratuitous care will end once he has his hip replacement operation, or alternatively, the need will reduce to an a number of hours that would be below the assessment threshold provided by s 15(3), namely below 6 hours per week. The defendant therefore submitted that it would be reasonable to allow for a further 2 years of future gratuitous care in the projected and rounded down amount of $24,500.
I do not accept that submission made by the defendant. The medical evidence is that the plaintiff's problems will not disappear entirely if he has the surgery under discussion. There is also a need to consider the possibility that the surgery may not be as successful as envisaged.
There is an additional matter that was raised with counsel during addresses. The Kareena Private Hospital notes comprising Exhibit "N" show that the plaintiff has been noted to have some cardiac issues. Whilst there is no evidence that this could have a negative impact on his longevity, and specific evidence on that issue would be required before an adverse inference was drawn concerning the plaintiff's longevity, it does raise a question of whether the plaintiff would be a good or acceptable anaesthetic risk for further elective surgical treatment.
In particular, the unconfirmed reading of the electrocardiogram taken on 23 February 2009 refers to a borderline intra-ventricular conduction delay, an early precordial R/S transition and a QRS positive area in V2. It is a given that it is not possible, without specific medical evidence, to interpret those matters in these proceedings: Strinic v Singh [2009] NSWCA 15. However, these entries do highlight the point that it is not just a simple matter of the plaintiff submitting himself to surgery in order to lessen his level of disability. There are other considerations, including informing the plaintiff of material matters of risk and benefit to enable him to make an informed decision on whether or not to undertake the recommended surgery. Those matters were not evident in the opinions of the orthopaedic surgeons whose reports were tendered in the proceedings.
Dr Bodel stated that the plaintiff's future treatment needs would probably include the need for a left total hip replacement. He did not say this procedure, if performed, would lead to a cessation of disability in the plaintiff. Dr Vote initially stated that a total hip replacement would help the plaintiff. He did not say the procedure would lead to a complete amelioration of his disabilities or his need for assistance. In his supplementary letter, Dr Vote stated that the plaintiff's pain and stiffness would " largely go " as a result of a total hip joint replacement. He still expected a degree of leg shortening to remain. He made no mention of the plaintiff's capacity to bend increasing, nor did he mention any likely increase in the plaintiff's anticipated level of activity following surgery. He gave no consideration to the plaintiff's back problem in that analysis.
Without more, I do not consider that state of the evidence to form a proper basis upon which it should be inferred, as was submitted by the defendant, that the plaintiff's need for future domestic assistance would fall to below the s 15(3) threshold of 6 hours per week in 2 years time, assuming surgery was undertaken at around that time. In my view, the submission invokes unwarranted speculation.
In my assessment the amount claimed by the plaintiff is reasonably formulated. I consider this to be so because the first component involves a continuation of the pre-trial position regarding ongoing care, which is a reasonable and sensible assumption, and also because it acknowledges in the second component that there is likely to be a degree of improvement, which seems realistic, but at the same time, provides for the prospect that care needs will be likely to continue, to a significant degree.
In my view, that second component submitted by the plaintiff for future domestic assistance is a reasonable one which makes a fair concession to the defendant, as distinct from the defendant's submission, which on flimsy evidence, makes no such countervailing concession, and assumes unrealistically and without adequate evidence, that the need for care will fall below the threshold. For that view to prevail, explanatory evidence would be required, and it was absent. For those reasons, but with one qualification, the plaintiff's submission on future care should be preferred as being more realistic than the submission put forward by the defendant on this head of damage.
Addressing the qualification, I consider that the amount claimed should be discounted by 15 per cent on account of potential countervailing vicissitudes, notwithstanding that the underlying actuarial projection formula incorporates an element of discount for mortality.
I consider that the need for a discount for vicissitudes is justified in this case on account of multiple considerations, including possible supervening issues that may arise. Counterbalancing that consideration, it is also possible that the plaintiff's needs may continue at the level of 12 hours per week or possibly more as he ages. Accordingly, I consider that a 15 per cent discount for vicissitudes is appropriate to be applied to this head of damage. Applying a 15 per cent discount to the sum of $112,054.59, this yields the amount of $95,246.
In coming to this assessment I have had regard to the plaintiff's common law duty to mitigate his loss, in this context, including downsizing his accommodation so as to reduce the level of need for personal and domestic assistance, including home maintenance issues.
I do not regard this to be a relevant consideration in this case because of Mrs Neate's circumstances. The house in question is also Mrs Neate's home. With her level of visual impairment, reasonably, she is reluctant to move house because she is familiar with her home living environment based on her memory as a fully sighted person. In that regard, she knows where things are in her home and she is comfortable there. I consider that to be a relevant countervailing point to any mitigation issue, suggesting that downsizing the family home might be a reasonable step for the plaintiff to take. A decision to move is not just a consideration for the plaintiff. In a damages sense, he cannot require his wife to move house in her circumstances. Accordingly, in this case there is no mitigation point that operates to reduce the plaintiff's entitlement to damages.
I therefore assess the plaintiff's damages for future domestic assistance in the amount of $95,246.
Future out-of-pocket expenses
On behalf of the plaintiff a claim was made for future out-of-pocket expenses in the amount of $9361, being $70 per month or $16.15 per week projected over 16 years (x 579.5) for future lawnmowing expenses.
On behalf of the defendant it was submitted that after the surgery for total hip replacement the plaintiff will no longer be in need of commercial care. In that regard, the defendant has submitted the award for future care should only allow for 2 years of lawnmowing expenses at $70 per month, calculated at $1800.
I consider that submission to involve unwarranted speculation and for the reasons already outlined in connection with the analysis of submissions on future domestic assistance, I consider that this submission should be rejected. There is no evidence that would reasonably support a finding that after the surgery, the plaintiff would experience a revival in his ability to mow his lawns.
I consider that the claim made on behalf of the plaintiff is reasonable, subject to the need for adjustment on account of vicissitudes. The need for the assistance with lawnmowing is justified not only by the evidence of the plaintiff, which I accept, but it is also supported by the opinions of Dr Vote, who did not suggest the need for lawnmowing assistance would disappear after surgery on the left hip.
At age 70, it must be accepted that for reasons unconnected to his injury, including possibly having to move to smaller premises or to an apartment in later life on account of a number of reasons, the need to pay for lawnmowing services may diminish or cease. In order to allow for that possibility, I discount the sum of $9361 by 15 per cent to $7965.
I therefore assess the plaintiff's damages for future out-of-pocket expenses in the amount of $7956.
Future treatment expenses
The plaintiff made a claim for future treatment expenses. This was initially in the amount of $74,774. During the plaintiff's submissions this was reduced to reflect a misreading of the evidence on rehabilitation costs. The plaintiff's revised submission was in the sum of $38,692.50. That claim comprised allowances of $25,000 for future hip replacement and $5,000 for rehabilitation.
In contrast, the defendant submitted that the combined sum of $26,175 should be allowed for the cost of future surgery, post-operative rehabilitation and future medication.
In analysing the differences between the positions of the respective parties concerning this component of the claim it seems to me that I should not accept either of these submissions without adjustments.
The flaw with the defendant's submissions for future treatment costs is that they seem arbitrary, and make insufficient allowance for post-operative rehabilitation following proposed hip replacement surgery. Further, in my view, insufficient allowance has been made for the sundry consultation expenses the plaintiff is likely to need over his lifetime, and no allowance for counselling. The allowance of $2000 for future medication costs also seems arbitrary.
The flaw in the plaintiff's revised submissions on future treatment costs seems to me to be an absence of any allowance to cushion the plaintiff from the cost of future medical and counselling attendances over his remaining lifetime.
In these circumstances, I consider a different approach is required. This is in the form of an allowance for the estimated undiscounted cost of surgery, and a lump sum buffer amount to cover the plaintiff's lifetime need to see his general practitioner, any specialists, counselling, medication, rehabilitation treatment and the like.
Dr Bodel's report only identified the estimated cost of $25,000 for the surgical treatment he recommended. This was also recommended by Dr Vote. Dr Bodel recommended rehabilitation after the proposed surgery but the cost of that rehabilitation was not identified. He made those recommendations in the context of the plaintiff's overall prognosis being guarded. Dr Morse recommended psychiatric treatment in the form of medication at an estimated cost of $3900 for the first 8 months following the initial treatment, plus estimated medication costs of between $400 to $960 for that period. Dr Roldan's recommendation was for 10 to 12 consultations with a psychologist at the recommended fee of $212 per consultation, or between $2120 to $2544, in addition to the psychiatric treatment involving the prescription of psychotropic medication.
Against that background, I consider that the appropriate allowance for future treatment should comprise an element of $25,000 for the cost of surgery in the probable short term, and a lump sum of $10,000 buffer to cover the other items that I have listed above. Over the plaintiff's life span, the amount of $10,000 is about the equivalent of about $18 per week projected on the 5 per cent tables. In my view, that cross-reference analysis confirms the reasonableness of the suggested approach.
I therefore assess the plaintiff's damages for future treatment expenses in the amount of $35,000.
Past out-of-pocket expenses
During the course of the hearing the parties announced that, save for the amount of $70 per month from 1 July 2011 for lawnmowing expenses, past out-of-pocket expenses were agreed in the amount of $59,298.69. On the evidence given by the plaintiff concerning his difficulty with lawnmowing activities for the 5 months from July to November 2011, I see no reason why he should not have an additional allowance of $350 representing 5 months for such lawnmowing included in his damages award. Accordingly, I therefore assess the plaintiff's damages for past out-of-pocket expenses in the sum of $59,648.
Summary of assessment
My assessment of the plaintiff's entitlement to damages is summarised as follows:
(a) Non-economic loss
$265,000
(b) Past gratuitous assistance
$39,924
(c) Past paid assistance
$3,556
(d) Future domestic assistance
$95,246
(e) Future out-of-pocket expenses
$7,956
(f) Future treatment
$35,000
(g) Past out-of-pocket expenses
$59,648
Total
$506,330
Disposition
The plaintiff has succeeded on all the issues that were the subject of controversy in the proceedings, and has established an entitlement to a damages award in the amount of $506,330.
Costs
As a result of my findings, unless the parties can establish an entitlement to a different order, for which they will have liberty to apply, I propose to make an order that the plaintiff's costs of the proceedings be paid by the defendant on the ordinary basis, unless otherwise ordered.
Orders
I make the following orders:
(a) Verdict and judgment for the plaintiff in the sum of $506,330;
(b) The defendant is to pay the defendant's costs on the ordinary basis, unless otherwise ordered;
(c) The exhibits may be returned;
(d) Liberty to apply on 7 days notice if further orders are required;
APPENDIX I
TABLE OF ANALYSIS OF PAST GRATUITOUS DOMESTIC ASSISTANCE
Item
Description of assistance
Source Reference
Time Analysis
1.
Assistance from plaintiff's wife putting on his socks and tying shoelaces, 3 times per week in summer months, 7 times per week in winter months, 10 minutes each time
T44.44 to T45.29; T95.25
50 minutes per week averaged throughout the year
2.
Assistance from plaintiff's wife in untying shoelaces and taking off socks
Inferred from item 1 above`
50 minutes per week averaged throughout the year
3.
Toenail cutting
T44.48
No time estimate provided. Assume this is included in other episodes of assistance provided
4.
Assistance from plaintiff's son-in-law moving boxes and heavy items, 20 minutes per fortnight
T45.45 to T46.6; T46.16 to T46.21; T112.15
10 minutes per week
5.
Assistance from plaintiff's son-in-law with pool cleaning, 1 hour per week, at least.
T46.45 to 47.9; T91.29 to T91.42
60 minutes per week
6.
Assistance from plaintiff's son-in-law clearing leaves from roof guttering, 1 hour per month..
T47.13 to T47.26
15 minutes per week
7.
Assistance from plaintiff's daughter with housework, 3 hours per day, 2 days per week, i.e. 6 hours per week, but reduced by half to reflect need of the plaintiff only.
T93.37 to T94.7
180 minutes per week
8.
Ad hoc daily assistance from plaintiff's wife for 1 hour per day or 7 hours per week.
T48.8 to T48.41
420 minutes per week
9.
Assistance from plaintiff's sister-in-law and brother-in-law for 1 day every 3 weeks. Assume a total of 4 hours per person but reduced by half to reflect the need of the plaintiff only i.e. 4 hours every 3 weeks.
T95.1 to T95.20
80 minutes per week
10.
Assistance from a friend of the plaintiff who comes once per fortnight to do the vacuuming and the bathrooms.
T93.28 to T93.35
No time estimate provided
Total
865 minutes per week or 14 hours and 25 minutes per week
APPENDIX II
CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE CIVIL LIABILITY ACT 2002, s 15(4)
[12 hours per week]
Period
Weeks
Weekly
s.15(4)
Rate
Hourly
s.15(4)
Rate
Amount for 12 hours per week
1.
08.04.2009 to 15.05.2009
5.42
$946.40
$23.66
$1538.84
2.
16.05.2009 to 21.08.2009
13.85
$939.00
$23.48
$3902.23
3,
22.08.2009 to 20.11.2009
12.85
$959.90
$23.99
$3699.25
4.
21.11.2009 to 19.02.2010
12.85
$969.40
$24.23
$3736.26
5.
20.02.2010 to 21.05.2010
12.85
$989.90
$24.74
$3814.90
6.
22.05.2010 to 20.08.2010
12.85
$986.90
$24.67
$3804.10
7.
21.08.2010 to 19.11.2010
12.85
$985.50
$24.63
$3797.94
8.
20.11.2010 to 18.02.2011
12.85
$996.40
$24.91
$3841.12
9.
19.02.2011 to 20.05.2011
12.85
$1025.90
$25.64
$3953.80
10.
21.05.2011 to 15.11.2011
25.42
$1026.00
$25.65
$7824.27
Total
$39924.71
Decision last updated: 27 January 2012
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