Paul Steven Atkins v Brett Ainsley Hughes, Trudi Ann Hughes

[2025] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

PAUL STEVEN ATKINS v BRETT AINSLEY HUGHES, TRUDI ANN HUGHES

[2025] SADC 51

Judgment of his Honour Judge Burnett  

15 May 2025

TORTS - CIVIL LIABILITY LEGISLATION: MODIFICATIONS TO TORTS AND LAW OF NEGLIGENCE - OTHER CASES AND MATTERS

TORTS - NEGLIGENCE - DAMAGE AND CAUSATION - CAUSATION - UNDER CIVIL LIABILITY LEGISLATION

LANDLORD AND TENANT - RIGHTS AND LIABILITIES APART FROM COVENANT - NEGLIGENCE: PARTICULAR CASES

The applicant, Mr Atkins, brought a claim for personal injuries that he alleges he sustained as a result of an incident that occurred on 2 December 2017 when he says that he suffered an electric shock at a property at Novar Gardens (the Property). At the time, Mr Atkins and his wife were tenants of the Property. The respondents were the owners of the Property and the landlords of Mr Atkins. The Property was managed for the respondents by Ray White, a real estate agency. The applicant claims that the respondents were negligent and breached the terms of the tenancy agreement in that they did not provide and maintain the Property in a reasonable state of repair.

Mr Atkins claims that he suffered an electric shock when attempting to open the garage doors at the Property. His claim was that his left hand slipped and came into contact with some exposed wires that were coming out of a junction box that was uncovered. The respondents denied that the incident occurred. They said that if it did occur, they had not breached their duty of care or their obligations under the tenancy agreement. The respondents further deny that any of the injuries or conditions from which the applicant suffers were caused by the incident or that Mr Atkins has suffered any economic or non-economic loss. They contend that if the incident occurred, Mr Atkins’ own negligence should be found to have contributed to the incident.

Held: 

(1)    The claim of the applicant is dismissed.

(2)    The applicant has not established that the electrocution incident occurred. The account of how the incident allegedly occurred is inherently improbable, unsupported by any objective evidence,  contrary to independent evidence, and inconsistent with subsequent actions of the applicant.

(3) Had the electrocution incident occurred as alleged, to address the identified risk that the applicant may suffer injury from a dangerous defect in the Property, the respondents should have conducted an adequate inspection of the Property at the commencement of the tenancy: Jones v Bartlett (2000) 205 CLR 166, Gration v C Gillan Investments Pty Ltd [2005] QCA 184 applied. An inspection, properly carried out, would identify any dangerous defects in the Property. The respondents could not escape liability if their agents performed an inadequate inspection. The respondents are directly liable for their agent’s tortious acts: Christian Youth Camp Ltd v Cobaw Health Services Ltd (2014) 50 VR 256, Stewart v Rudland-Wood; Kim Messenger Real Estate Pty Ltd v Rudland-Wood. [2000] NSWCA 86 applied.

(4) The applicant had not established that any of the injuries or conditions from which he suffers, had been caused by the electrocution (even assuming that it occurred): s 34 of the Civil Liability Act 1936 (SA) applied.

(5)    The applicant had not established any economic loss. The applicant had not worked for a number of years prior to the alleged electrocution and had suffered from post-traumatic stress disorder, anxiety and depression. The proposed ventures that the applicant said that he would undertake, were speculative at best and unlikely to proceed.

(6) Assuming that the electrocution occurred, the non-economic loss of the applicant is to be assessed according to s 52 of the Civil Liability Act. Pre-existing injuries will be compensable to the extent of the exacerbation or acceleration of that injury: Watts v Rake (1960) 108 CLR 158, Purkess v Crittenden (1965) 114 CLR 164 applied. On the assumption that the electrocution occurred, the applicant would have been assigned a value of 8 under the scale to be applied under s 52.

Residential Tenancies Act 1995 (SA) ss 68(1); Civil Liability Act 2002 (NSW); Civil Liability Act (SA) ss 19, 20, 20(2)(b), 20(2)(e), 20(2)(h), 21, 31, 31(1), 32, 32(1)(c), 32(2), 34, 44, 52, 52(2); Occupiers Liability Act 1985 (WA); Civil Liability Act 2000 (WA) s 5B, referred to.
Atkins v Hughes & Anor [2019] SASCFC 49; Jones v Dunkel (1959) 101 CLR 298; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Palmer Tube Mills (Aust) Pty Ltd v Semi Semi Transport Accident Commission v Streicher [1998] 4 VR 439; Peter Steven Benic v State of New South Wales [2010] NSWSC 1039; Jones v Bartlett (2000) 205 CLR 166; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; Morgan v Owners Strata Plan 13937 [2006] NSWSC 1019; Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; Chapman v Hearse (1961) 106 CLR 112; Rosenberg v Percival (2001) 205 CLR 434; Wyong Shire Council v Shirt (1980) 146 CLR 40; Road and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Clare & Gilbert Valleys Council v Kruse [2019] SASCFC 106; Department of Housing and Works v Smith (No 2) (2010) 41 WAR 217; State of New South Wales v Fahy (2007) 232 CLR 486; Ballina Shire Council v Moore [2023] NSWCA 155; Tame v State of New South Wales (2002) 211 CLR 317; Vairy v Wyong Shire Council (2005) 223 CLR 422; Ex parte Colonial Petroleum Oil Pty Ltd (1944) 44 SR (NSW) 306; Schultz v Corwill Properties Pty Ltd [1969] 2 NSWLR 576; JF & BE Palmer Pty Ltd v Blowers and Lowe Pty Ltd (1987) 75 ALR 509; Stewart v Rudland-Wood Kim Messenger Real Estate Pty Ltd v Rudland Wood [2000] NSWCA 86; Christian Youth Camp Ltd v Cobaw Health Services Ltd (2014) 50 VR 256; Yeung v Santosa Realty Co Pty Ltd [2020] VSCA 7; Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16; Gration v C Gillan Investments Pty Ltd [2005] QCA 184; Varricchio v Wentzel [2016] SASC 86; Queen Elizabeth Hospital v Curtis [2008] SASC 344; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Betts v Whittingslowe (1945) 71 CLR 637; Naxakis v West General Hospital (1999) 197 CLR 269; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; State of Queensland v Kelly [2015] 1 Qd R 577; Jenkins v Maddeford (1990) 157 LSJS 155; Packer v Cameron (1989) 54 SASR 246; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164, applied.

PAUL STEVEN ATKINS v BRETT AINSLEY HUGHES, TRUDI ANN HUGHES
[2025] SADC 51

Civil

Introduction

1. These proceedings concern a claim by the applicant, Mr Paul Atkins (the applicant or Mr Atkins), for damages for personal injuries that he alleges that he sustained as a result of an incident that occurred on or about 2 December 2017 when he alleges that he suffered an electric shock at the property at 26 Sunningdale Avenue, Novar Gardens (the Property). At the time, Mr Atkins and his wife,

   
   

   Ms Regina Atkins, and their children were tenants of the Property. The respondents, Mr Brett Ainsley Hughes and his wife, Trudi Ann Hughes (the respondents or Mr and Mrs Hughes), were the owners of the Property and the landlords. They did not play any role in the trial or give evidence. The Property was managed on their behalf by a real estate agency, Ray White Adelaide (Ray White or Ray White, Adelaide).

2. Mr Atkins claims that he suffered an electric shock when he was attempting to open the garage doors at the Property. He says that his left hand slipped and came into contact with exposed wires that were coming out of a junction box that was uncovered. Mr Atkins initially brought claims for breach of contract, negligence and breach of fiduciary duty. At trial, he only proceeded with the claims for breach of contract and negligence. In the last version of his statement of claim, Mr Atkins sought damages of $10,000,000.00.

3. In his statement of claim, Mr Atkins also claimed damages against Mr and Mrs Hughes for an alleged eye injury that he suffered when stung by bees at the Property on 10 November 2017. In his opening, Mr Atkins said that he did not wish to proceed with that claim. In the statement of claim, Mr Atkins also claimed damages against Mr and Mrs Hughes for an injury resulting in a hernia on his right side. He alleges that he sustained that injury on 17 December 2017 when he slipped on a wet floor because of a plumbing leak from a toilet. Again, in his opening, he abandoned that claim.

4. Mr Atkins was unrepresented at trial and throughout the proceedings.

   
   

   Mr Atkins suffers from long standing post-traumatic stress disorder (PTSD) and acute anxiety. As an unrepresented litigant who suffers from these conditions,

   
   

   Mr Atkins was at an obvious disadvantage in presenting his claim at Court. The Court must therefore exercise particular care in examining the evidence to consider whether there is merit in his claim, notwithstanding any deficiencies in its presentation.[1]

   [1] Atkins v Hughes & Anor [2019] SASCFC 49, [39].

5. The respondents opposed the claim. They denied that the incident occurred. They said that if it did occur, they had not breached their duty of care or their obligations under the tenancy agreement. The respondents further denied that any of the claimed injuries were caused by the incident or that Mr Atkins has suffered any loss. They contend that if the incident occurred, Mr Atkins’ own negligence should be found to have contributed to the incident.

   Issues for determination

6. The following issues arise for determination:

   (1)Did Mr Atkins suffer an electric shock on 2 December 2017 while in the garage at the Property either in the manner that he alleges or in some other way?

   (2)Accepting that a duty of care was owed to Mr Atkins, if the electrocution occurred as alleged, did the respondents breach that duty of care or any contractual duty arising from the lease of the Property?

   (3)If there was a breach of the duty of care or breach of contract, did

   
   

   Mr Atkins suffer a neck injury and/or some other injuries, and if so, what injuries from the electrocution?

   (4)If yes to the first three questions, has  Mr Atkins suffered any economic loss by reason of his injuries and in particular has he suffered loss by reason of a failure to undertake a major development at Marion Road and/or did he suffer loss of the opportunity to commence a businesses of (a) providing pre-purchase building reports on the condition of houses; (b) undertaking a Jarrah wood furniture business; and (c) installing solar panels?

   (5)If yes to the first three questions, has Mr Atkins suffered non-economic loss by reason of his injuries and if so what is the quantum of that loss?

   The Trial

7. Mr Atkins called three witnesses at trial. He gave evidence along with his wife, Mrs Regina Atkins, and Dr Graham Long, a consultant occupational physician.

8. Mr Atkins gave evidence about his background and work history, his assets and financial position, his relocation to Adelaide from Coober Pedy, his inspection of the Property and negotiations with Ray White, the agents for the respondents, ongoing issues he had regarding the condition of the Property, including issues with the bees, the electrocution incident, the effects of the electrocution upon him and his treatment for his injuries, his pain and suffering and other non-economic loss, the repair of the junction box by the electrician, communications with the Office of the Technical Regulator (OTR), his fall and injury which caused his hernia and the economic loss he suffered because of his injuries including an inability to pursue other opportunities.

9. Mr Atkins suffered from a traumatic childhood and experienced, and continues to experience, acute anxiety and PTSD as a result of incidents that occurred during his childhood. He suffered from depression in the period between 2014 and 2017 and did little or no work in that period.  He is obsessed by what he perceives to be wrongs committed against him and lacks rationality about these issues. He views others as conspiring against him. He self-diagnosed many of his medical conditions. He has instituted numerous actions against other parties. He made unsubstantiated claims in these proceedings such as accusing Ray White of fabricating almost all of their documents. He made wildly exaggerated claims of damages which bore little relationship to reality.

10. These characteristics meant that Mr Atkins was very argumentative and defensive when being cross-examined. He would not accept obvious inconsistencies in his evidence. His evidence was inconsistent with the evidence of other witnesses whom I prefer. His evidence was, in some instances, inconsistent with other objective evidence. In some instances, the evidence that he gave about how his response or lack of response to events, was not credible.

11. I do not consider that Mr Atkins gave deliberately false evidence. I consider that he had come to believe that what he said was true. In this sense, he believes that an electrocution incident occurred and that all his current conditions were caused by that incident. However, for the reasons that are identified in these reasons, I do not consider Mr Atkins’ evidence to be credible or reliable, including in relation to his account of the electrocution incident.

12. It was put to Mr Atkins that he had been found by other courts and tribunals, including South Australian Civil And Administrative Tribunal (SACAT) and the Full Court of the Supreme Court, to have exaggerated his claims and brought claims that were misconceived or lacking in substance. Without knowing the circumstances of those claims, I do not consider those matters provide assistance in assessing the reliability and credibility of Mr Atkins’ evidence in these proceedings.

13. Mrs Atkins gave evidence primarily on three broad topics. First, she gave evidence about their relocation to Adelaide and moving into the Property. Secondly, she gave evidence about the complaints and actions of Mr Atkins on the night of the alleged electrocution. She did not witness the incident herself but later had a conversation with Mr Atkins about the incident. Thirdly, she gave evidence about the injuries and condition of Mr Atkins, both prior to and subsequent to the incident.

14. I have doubts about the credibility and reliability of the evidence of

    
    

    Mrs Atkins about the incident. Her evidence on that topic appeared rehearsed. Not surprisingly, it could be expected that Mr and Mrs Atkins talked about the incident. I gained the impression that Mrs Atkins said what she thought Mr Atkins wanted her to say, rather than giving evidence about her own independent recollection.

    
    

    Mr Atkins was very authoritarian in the way he asked questions and at times, directed how she should conduct herself. He interrupted her during the course of cross-examination, particularly when he was unhappy with the evidence that she was giving. Mrs Atkins’ evidence that she was at home when the incident occurred is contrary to the evidence of Mr Atkins. Further, I accept the submission of the respondents that it is not credible that, if Mr Atkins had described the electrocution incident and the injuries, he sustained in the incident in the terms that Mrs Atkins stated in her evidence, she would not have sought medical assistance or at least have monitored his condition.

15. Dr Long is a qualified medical specialist. He was engaged by Mr Atkins to provide a report concerning the injuries that Mr Atkins alleged that he sustained in the electrocution incident. I accept the expertise and evidence of Dr Long. As became apparent in his cross-examination, the opinions of Dr Long, were, to a significant extent, dependent on the history given to him by Mr Atkins.

16. The respondents called a number of witnesses. The respondents did not themselves give evidence. There can be no criticism of that fact and no application of the rule in Jones v Dunkel[2] as there was no topic upon which the respondents could have given relevant evidence. The Property had been leased out to tenants before Mr and Mrs Atkins moved into the Property. Ray White, the agents engaged by the respondents, dealt with the management of the Property and communicated with Mr Atkins. The respondents did not engage in any communications directly with Mr Atkins.

    [2] (1959) 101 CLR 298; [1959] HCA 8.

17. Mr Kevin Adie is an electrician who, from time to time, was engaged by Ray White on behalf of the respondents, to undertake electrical work on the Property. He gave evidence on two topics. First, he gave evidence about his attendance at the Property on 15 December 2017, at the request of Ray White, at which time he said that he observed a hairline crack in the junction box which Mr Atkins alleges was exposed. Mr Adie said that you could not pass a hand through the box. His evidence was disputed by Mr Atkins. Mr Adie said that he replaced the junction box. Mr Adie also gave evidence about further electrical work and inspections that he had undertaken in 2018. That evidence was less contentious.

18. Mr Adie was an independent witness. Other than being engaged by Ray White on behalf of the respondents, he had no relationship with the respondents. He had no reason not to tell the truth. Even if Mr Atkins’ version of events was correct, it did not involve any criticism of Mr Adie’s work. Mr Adie had a clear recollection of his observations at the Property on 15 December 2017 and the work that he undertook on that day. I find him to be an honest and credible witness. I do not find the criticisms made by Mr Atkins of the evidence of Mr Adie to be substantiated. I will deal with those criticisms when considering the evidence of Mr Adie.

19. Mr Peter Lovett, a private investigator, gave evidence. He was engaged by the insurers of the respondents to undertake surveillance on Mr Atkins during May 2023 and June 2023 and prepared a report that addressed whether Mr Atkins acted in a way that was consistent with the injuries that he claimed to have sustained. I accept that Mr Lovett made the observations that he referred to in his report and in his evidence, although those observations were not conclusive of any issue.

20. The respondent called two witnesses who previously worked for Ray White, Ms Emma Cauchi and Ms Kirsty Ciampa. Ms Cauchi was, at the relevant time, the property manager of  Ray White, Adelaide.  In that capacity, she was responsible for the management of the Property. Ray White managed the Property from 8 April 2016 (see exhibit A69). Ms Cauchi gave evidence of observations that she made at the Property and her communications with Mr Atkins. I consider that she was an honest witness who did her best to assist the Court. She admitted when she could not recall a matter or was uncertain. Mr Atkins was highly critical of the evidence of Ms Cauchi but I do not consider these criticisms to be justified.

    
    

    Mr Atkins criticised Ms Cauchi for not recalling whether she inspected the garage of the Property in 2016 when the former tenants were in occupation and not recalling whether the former tenants had made maintenance requests.  It is not surprising that a property manager would not be able to recall such details. Further, those matters are not directly relevant to the claim in these proceedings. Mr Atkins also criticised the inspection report prepared at the commencement of his tenancy. However, that report was not prepared by Ms Cauchi and therefore the deficiencies in that report, or the way in which it was compiled, do not affect her credibility.

21. Ms Ciampa and her ex-husband were the principals of Ray White Adelaide.  Ms Ciampa acted as the general manager of that business. Ms Cauchi reported to her. Ms Ciampa was not the person who initially communicated with Mr Atkins about the Property, but later assumed that role. The evidence of Ms Ciampa was largely supported by documents and concerned matters after the alleged electrocution. There was nothing put to Ms Ciampa that caused me to doubt her credibility or reliability. I accept her evidence.

1. Dr Rothwell is a clinical neuropsychologist. He was engaged by the respondents to provide a report on the injuries suffered by Mr Atkins in the incident and more particularly, whether Mr Atkins suffered any impairment to the brain.

   
   

   Dr Rothwell provided a report. He was qualified to give the opinions that he expressed in the report and in evidence and I accept his evidence and the opinions that he expressed in his report.

2. Dr Bill Panayiaris is an occupational physician who was engaged by the respondents to provide an independent medical assessment of the injuries that

   
   

   Mr Atkins claimed that he sustained in the electrocution and in particular, the injuries to his neck. He prepared a report of his assessment (exhibit R137).

   
   

   Dr Panayiaris also undertook a review of the other medical reports that had been prepared that related to Mr Atkins. Dr Panayiaris was a qualified medical specialist with a great deal of experience as an occupational physician. I accept his evidence.

   Mr Atkins’ personal and work history prior to the accident

   Upbringing as a child

3. The evidence given by Mr Atkins as to his childhood was not challenged and I accept the evidence as described below.

4. Mr Atkins was born in 1958 and therefore was 59 years of age at the time of the incident and 65 years of age when he gave evidence. He is married, although separated and has two daughters who were born in 2007 and 2010 respectively. He currently lives in the same house as Mrs Atkins and their children.

5. He grew up in Western Australia and his parents divorced when he was very young. He initially lived with his mother but was placed in a boy’s home from the age of about 4 years old to the age of 10 years old. He said that he commenced getting acute anxiety panic attacks at the boy’s home.

6. Mr Atkins gave evidence that when he was 10 years of age, his father collected him and his older brother from the boy’s home, and they lived with their father for about 5 years until he ran away from his father’s house to live with his mother. Mr Atkins completed primary school and three years of high school. His father was a violent alcoholic. Mr Atkins described incidents where his father shot at him and, in a separate incident, put a gun in his mouth. Dr Rothwell referred to a diagnosis of PTSD by Dr Forde, a psychiatrist, and said that although all PTSD involves substantial suffering, it would be reasonable to say that Mr Atkins’ experience and suffering was exceptional. Dr Rothwell was of the opinion that a stressor (any kind of injury) was likely to amplify the severity of Mr Atkins’s cognitive inefficiencies and memory problems, and that Mr Atkins was likely to seek an external entity to blame. Dr Rothwell was of the opinion that Mr Atkins’ ongoing litigation (which included many actions against various parties) was likely to be agitating his PTSD. Dr Rothwell said that Mr Atkins’ emotional state is triggered by perceived injustices and the subject incident occurred in the context of a dispute with his new landlord after moving from Coober Pedy. Dr Rothwell was of the opinion that the cognitive symptoms forming part of the claim were a psychological defence reaction caused by his pre-existing PTSD. I accept the opinions of Dr Rothwell. They accord with the Court’s observations of Mr Atkins when giving evidence and his history of litigation.

   Work history

7. There was no challenge to the evidence given by Mr Atkins about his work history prior to the alleged electrocution and I make the findings set out below.

8. Mr Atkins completed an apprenticeship in cabinet making when he was about 18 years of age and worked for a time as a cabinet maker in Western Australia.

   
   

   Mr Atkins said that he moved to Coober Pedy when he was about 27 years of age to undertake opal mining.  He said that at the time he was dealing with PTSD and acute anxiety although it was not until sometime later that he commenced receiving treatment for those conditions.

9. After about 3 years of opal mining, Mr Atkins returned to cabinet making, still remaining in Coober Pedy. In about 1992, he obtained a builder’s licence through a TAFE course. Mr Atkins also said that he has obtained qualifications and a licence in carpentry, plumbing and bricklaying. After the alleged incident, and in about 2019, Mr Atkins said that he obtained a certificate to install solar panels. He said that as a licensed builder, he was able to install solar panels but could not connect the panels as that work was required to be performed by a qualified electrician.

10. Mr Atkins worked as a qualified builder for many years in Coober Pedy from about 1992 to 2014. He holds a contractor’s licence, entitling him to supervise building work (exhibit A70). He worked mainly on houses and office blocks. During this time, he was taking medication for his acute anxiety and PTSD. He said that he had a court case with the Coober Pedy Council in 2011-2014 which cost him about $300,000 and which failed.

11. He said following that court case, he went into a depression and did not work from 2014-2017. He said that he would sleep most of the day. Mrs Atkins confirmed that evidence. She said that he had severe depression during this period and would stay in bed for most of the day. She said that he was doing very little building work during this time. She said that the only income they received during that period was from rental income from some properties that they owned. She said that he did not resume building work after his depression began to improve because they were moving to Adelaide.

    Assets

12. Mr Atkins constructed an office block in Coober Pedy at Lot 101 Hutchison Street and leased that block to the Department of Infrastructure and Transport. The property was held in a trust. Ultimately, Mr Atkins or the trust failed to pay rates and taxes and the Council sold the building for about $260,000. Mr Atkins claimed that the office block was worth $3,000,000 but I do not accept that estimate. There is no evidence to support that contention. The sale of the office block for $280,000 (even as a sale conducted by the Council following the repossession of the property) is inconsistent with that contention. The sale price is the best indicator of the true value of the land.

13. Mr Atkins said that he and Mrs Atkins had also owned a building at Lot 2502, Brewster Street, Coober Pedy but that was also repossessed and sold by the Council for $12,500 as vacant land.

14. Mr Atkins gave evidence about a number of number of blocks of land that he or his wife have owned. He said that he or his wife owned lots 1, 2, 3 and 4 Black  Peter Road, Coober Pedy. He said he had constructed a spec home on lot 1 and had sold that many years previously. He said that they sold lots 2 and 4 for a total of $40,000 to pay some of the outstanding council rates. He said that they still own Lot 3, but that is up for sale.

15. Mr Atkins said his wife, as trustee for his two daughters, own land at Lot 50 and Lot 51 Paxton Road, Coober Pedy. He said that building works on that land are about 90% complete.

16. Mr Atkins gave evidence that he had a property at 25 Willcox Street, Coober Pedy, which is held in his wife’s name and is currently on the market to repay residual loans to the bank.

17. It is clear from this account of the assets held by Mr Atkins and his wife that they do not, and did not as at December 2017, hold substantial assets in their own names. They have owned a number of properties or blocks of land, most of which have now been sold, but no assets of any great value that could have been used as security for a large scale development.

    Tenancy negotiations, inspections  and entering into the Tenancy Agreement

    Tenancy applications

18. In June 2017, Mr Atkins and his wife separated and decided to move from Coober Pedy to Adelaide. Ms Cauchi gave evidence that Mr Atkins had completed a tenancy application on 27 September 2022, but that Ray White required him to complete a further application because he had not inspected the Property at the time of that application.

19. Mr Atkins gave evidence that he and his whole family inspected the Property on 5 October 2022 which was a couple of months before they moved into the Property. He can recall the agent who showed him through the Property was someone called Brett. He said that the inspection was reasonably rushed. He said that he was given about 10 minutes to inspect the Property. He said that the previous tenants were still living in the Property and warned about a bee’s nest that was in a tree in the backyard. Mr Atkins did not observe any other matters of concern about the Property or any defects. Mrs Atkins also gave evidence that the inspection was only for a period of about 10 minutes. Ms Cauchi confirmed that the inspection was for 10 minutes as that is the standard time for inspections.

    
    

    Ms Ciampa gave evidence that the purpose of the inspection and allowing only 10 minutes was to enable potential tenants to get a feel for the property, the layout and size and to have a quick look at its condition.

20. Mr Atkins signed a tenancy application form for the Property on 5 October 2017 (exhibit A15), although he said that form was completed by his wife and he merely signed the form. Mrs Atkins said that she was sitting with Mr Atkins when they were completing the form but that she was doing the writing because she is neater. In the application form, Mr Atkins is described as a “retired builder/author”. Mr Atkins did not agree with that description but said that his wife had described him in that way. Mrs Atkins confirmed that she wrote that the occupation of Mr Atkins as retired builder/author. She said that she wrote those words without consulting him because that was her opinion. Given her evidence that they were together when completing the form, it is unlikely that she would have included these words without consulting Mr Atkins. On 9 October 2017,

    
    

    Mr Atkins received an email from Ray White saying that his application had been successful (exhibit A16).

21. I make the following findings about the tenancy applications and inspection.

22. Mr Atkins completed a tenancy application on 27 September 2017 but at that time had not inspected the Property so was required to complete a further application after he had inspected the Property. Those findings are not contentious.

23. Mr and Mrs Atkins inspected the Property for about 10 minutes on 5 October 2017. That was the period of time allowed for an inspection by the agent. These matters are not disputed. That time did not allow any time for a proper or detailed inspection of the Property and its condition. It could not be expected that in this time period, Mr Atkins would have had the opportunity to observe that a junction box in the garage was uncovered and that bare wires were protruding from that junction box, if that was the case. Mr Atkins did not observe any defects in the Property during his inspection.

24. Mr Atkins’ application was accepted, and he signed the tenancy agreement on 5 October 2017. I accept that Mrs Atkins prepared the application and that it is in her writing. I do not accept that Mr Atkins was unaware that he was described as a “retired builder/author” in the application form. I have reached this view for the following reasons. First, Mrs Atkins said Mr Atkins was with her when she completed the details in the form. Secondly, it is evident that much of the information in the form must have come from Mr Atkins and therefore she must have been asking him what to put down in the form. Thirdly, the relationship between Mr Atkins and Mrs Atkins was such that I do not consider that Mrs Atkins would complete such a form on behalf of Mr Atkins other than at his direction. It follows that Mr Atkins was aware that he was described in the tenancy application as a retired builder/author.

    Tenancy agreement

25. On 10 October 2017, Mr and Mrs Atkins and Ray White, on behalf of the respondents, signed the Residential Tenancy Agreement (exhibit A17) (the Tenancy Agreement). Mr Atkins said that he did not read the Tenancy Agreement before he signed it. There has been no application to set aside the agreement and accordingly Mr Atkins is bound by the terms of the agreement. In any event,

    
    

    Mr Atkins seeks to rely on the Tenancy Agreement.

26. The tenancy was for a period of one year commencing on 1 November 2017. The Tenancy Agreement included the following terms:

    (1)The tenant must keep the premises clean and secure and notify the landlord of any damage to the property and report immediately to the landlord any breakdown or fault in equipment, water, electrical or other services to the property;

    (2)The landlord will provide and maintain the property in a reasonable state of repair at the beginning of the tenancy and keep them in a reasonable state of repair having regard to their age, character and prospective life and abide by all legal requirements regarding the buildings and health and safety in respect of the premises;

    (3)Prospective applicants acknowledge being shown through the property at a viewing with the Property Manager…and as such accept the property in the condition it was so inspected;

    (4)All maintenance must be reported to the agent within 3 days of the damage occurring;

    (5)Tenants are to notify the landlord/agent of any general repairs needed;

    (6)If an urgent repair is required (e.g. burst water pipe, gas leak, dangerous electric fault etc.) every effort should be made to contact the landlord/agent as soon as possible.

27. The Tenancy Agreement was a residential tenancy agreement within the terms of the Residential Tenancies Act 1995 (SA). Section 68(1) of that Act provides that it is a term of a residential tenancy agreement that the landlord will ensure that the premises are in a reasonable state or repair at the beginning of the tenancy and will keep them in a reasonable state of repair having regard to their age, character and prospective life. It is evident that the term incorporated into the agreement by the Residential Tenancies Act mirrors the term in the agreement.

    Appointment of Ray White and inspection reports

28. The respondents purchased the Property on 8 April 2016. They did not ever live in the Property and rented it out to tenants. Prior to their purchase of the Property, they had obtained a pre-purchase report from Selecta (exhibit A47) which indicated that there were no major defects. That report did not identify any issues with the electrical wiring in the garage or exposed junction boxes.

29. The respondents entered into a Residential Management Property Agreement with Ray White whereby it was agreed that Ray White would manage the Property (exhibit A69). Under that agreement:

    (1) the landlord [the respondents] appointed the Manager [Ray White] as the sole agent to let and/or manage the Property and the Manager accepts the appointment subject to payment of the fees and costs specified herein. Unless otherwise limited by this Agreement, the Manager is appointed and authorised to act in all respects in relation to the Property on behalf of the landlord, to do all things necessary to let the Property, collect rents, execute tenancy agreements and ancillary documents for and on behalf of the Landlord, instruct repairs and works to maintain the Property and to prosecute and defend breaches of any tenancy agreements;

    (2) If this Agreement covers management of the Property, the Manager will inspect the Property at appropriate times prior to, during and/or at the end of the tenancy and will keep the Landlord notified of the condition of the Property from time to time in the discretion of the manager…

30. Ms Cauchi gave evidence that during her management of the Property in 2016, she went through the main part of the house. She cannot recall if she went through the garage. In 2016, she did not observe any water damage. She did not observe any bees in 2016. She said that she did not have any recollection of the state of the electricity boxes. She said that she did not recall if there were any maintenance requests from the first tenants.

31. Ray White had completed a Residential Tenancy Entry Report on 26 April 2016 when the Property was first rented to tenants (exhibit A29). That report attached photographs of the garage and did not indicate that there was any uncovered junction box.

32. On 1 November 2017, Ray White completed a further Residential Tenancy Entry Report in relation to the Property (exhibit R109). That report was prepared at the commencement of Mr Atkins’ tenancy. Mr Atkins gave evidence that no-one from Ray White attended the Property on that date. Ms Cauchi said that her signature was digitally applied to the report. She said that she does not personally attend those inspections but that one of her colleagues undertook the inspection. She said that she could not recall whether the inspection occurred on that date. The report contains a description of the condition of each room, including the garage and outdoor areas of the Property and the items within those areas as well as photographs of those rooms.

33. A comparison of the two reports indicates that the material, comments and photographs from the first report made on 26 April 2016 were simply copied over into the report dated 1 November 2017. Ms Cauchi accepted that this was the case and that it appeared that the 1 November 2017 inspection did not occur or, if it did, was not adequate.

34. I find that the most probable inference from this evidence is that no inspection occurred on 1 November 2017 and that the material, comments and photographs made in the 1 November 2017 report were copied over from the 26 April 2016 Report. The person from Ray White who undertook the inspection in November 2017 was not called to give evidence. In these circumstances, Ray White or the respondents cannot rely on the 1 November Report to submit that they made reasonable efforts to ascertain the condition of the Property before Mr and

    
    

    Mrs Atkins commenced their rental of the Property. Ray White and the respondents cannot contend that the condition of the Property as set out in the 1 November Report was the condition of the Property at the time that Mr and Mrs Atkins moved into the Property. The Court would be engaging in speculation if it made such findings, given that the written documentation does not support a conclusion that an adequate inspection was carried out.  I do not accept that the fact that report was copied over impugns the credit of Ms Cauchi or Ms Ciampa. They did not prepare the report.

35. Ms Cauchi gave evidence that she undertook one routine inspection of the Property during the time that Mr Atkins was a tenant. She said that she undertook that inspection with the principal of Ray White,  Mr Brett Pilgrim. She cannot now recall the date of that inspection. She said that the house was tidy and there was no visible damage. She cannot recall observing any bees. She said that she went through the garage but did not notice anything about the state of the electrical junction boxes. Given that she cannot recall the date that the inspection was carried out and that she did not make specific observations about the electrical wiring, I do not consider that this inspection carries any weight in determining whether the respondents discharged their duty of care or contractual duty in relation to the condition of the Property.

    Moving into the Property

    Presence of bees

36. Mr Atkins gave evidence that he attended at the Property on 1 November 2017. He stayed at the Property for a few days and then returned to Coober Pedy to pack the remainder of his and his family’s possessions before returning to Adelaide. It was not until later in November 2017 that Mr Atkins and his family moved into the Property.

37. When he attended at the Property on 1 November 2017, Mr Atkins observed the presence of bees. He said that he had previously brought this issue to the attention of Ray White (see email dated 26 October 2017, exhibit 21). On 16 November 2017, he sent two emails to Ray White asking them not to forget the bees (exhibits A18 and A20). Ms Cauchi gave evidence that she called a pest control company, and they later removed the bees. Mr Atkins gave evidence that the bees were eventually removed on 8 or 10 December 2017. The email from

    
    

    Mr Atkins dated 16 November 2017 also states they will be back on 1 December 2017, suggesting that they will finally move in on that date. An earlier email dated 13 November 2017 from Mr Atkins stated that they have moved in but were returning to Coober Pedy for two more weeks to complete the move.

1. Mr Atkins gave evidence that he got stung at the property by a bee on 10 November 2017. He said that the bee sting was very painful and that he saw an optometrist who told him that it had changed the vision in his eye and he required new glasses for which he paid $800.

2. Mrs Atkins gave evidence that she recalled an incident where Mr Atkins got stung by a bee. She cannot recall whether she was present when that incident occurred, but she remembers Mr Atkins having a red, swollen eye. She recalls him complaining about the incident.

3. As Mr Atkins no longer seeks to pursue any claim in respect of the bee sting, it is not necessary to make any findings about that incident and whether the conduct of Mr Atkins was consistent with being stung by a bee. I accept that there was a bee’s nest on the Property, that Mr Atkins complained about its presence and that Ray White arranged for its removal in December 2017. These matters are all supported by written documentation. The bee sting incident forms part of the narrative of events.

   10 November 2017 list of complaints

4. Mr Atkins said that on 10 November 2017, he sent to Ray White a list of complaints (exhibit A22). He said that the list was attached to an email. The list included some 29 items, includes relevantly: “(1) Bees. Removal. Severe Hazard; (2) bare electrical wires. Severe Hazard; (3) Plastic over wires. Severe Hazard; (4) Garage doors. Stuck completely. Hazard to fire escape”.

5. Ms Cauchi and Ms Ciampa both gave evidence denying that they had received the 10 November 2017 list of defects. Mr Atkins, in cross-examination, confirmed that he sent the list and denied that a list that he sent on 3 December 2017 was the first list of defects that he presented. Ms Cauchi said that she had seen the 3 December list but said that she could not find any email sent on

   
   

   10 November 2017. Ms Ciampa said that she had reviewed Mr Atkins’ file and could not find any evidence of a list of complaints that was sent on 10 November 2017, nor any follow up to that alleged complaint.

6. I do not accept that the 10 November 2017 list of defects was communicated to Ray White. I have come to this conclusion for three reasons. First, Mr Atkins has not been able to produce any copy of the email by which he sent the list. He has been able to produce other relevant emails. Secondly, neither Ms Cauchi nor Ms Ciampa have any recollection of receiving that email. Ms Ciampa has undertaken a review of the file of Mr Atkins and there was no email on that file. There is no suggestion that the file was missing other relevant documents and in fact included the list of defects that was later sent on 3 December 2017. Thirdly, there was no follow up of the defects list in the period between 10 November nor any reference to that email. It would be expected that Mr Atkins would have followed up that list, if it had been sent. This can be contrasted with the

   
   

   3 December list where Mr Atkins followed up a lack of response within a few days.

7. The 10 November list of complaints made no reference to the alleged exposed junction box. Mr Atkins said that the complaint about the bare electrical wires and the plastic over the wires referred to some wires just below the ceiling in the garage and at a separate location from where the electrocution is alleged to have occurred.  It was Mr Atkins’ evidence that he did not know of the exposed junction box at the time as at 10 November 2017 (and as at 2 December 2017, being the date of the alleged electrocution), and therefore could not have made reference to it in the 10 November report.

8. I do not consider that Mr Atkins’ credit is impugned by my finding that the 10 November 2017 list was not sent.  There is nothing in the 10 November list that is not replicated in the 3 December list. The 10 November list does not advance Mr Atkins’ case. It may have been that the 10 November list was an earlier iteration of the later list or that Mr Atkins intended to send the list but did not do so.

   The electrocution - 2 December 2017

9. Mr Atkins gave evidence that the electrocution occurred on 2 December 2017 in the garage when he was attempting to open the garage doors between the garage and the carport. He said that he was alone at home at the time of the alleged electrocution. He said that he did not know of the existence of the junction box prior to the incident and said that he had never touched the junction box.

10. He said that the doors of the garage were sliding doors in metal frames and in three panels. He said that the garage doors did not open. He said that he put his right hand on the metal frame of the tin doors of the garage doors and his left hand, as an anchor, on the Besser block bricks adjacent to the doors (see exhibits A23 and A25). He said that his hands were on the same plane. He said in examination in chief that he was pushing to the right hand side (away from the house), although in cross-examination, he said that he was evenly balanced and pushing in both directions. The evidence given in cross-examination on that topic is inconsistent with the evidence in chief and is inherently unlikely in that is not a way in which a garage door that was stuck would be opened, given that the left hand was not on the door but was on the Besser block.

11. He said that his forehead was pushing against the tin of the garage door and was touching the door. He said that when he was trying to open the garage doors, his left hand slipped, and it went horizontally left into the junction box. He said that that he had not seen the junction box prior to the electrocution. He said that the junction box was alongside his hand. He said that he observed the junction box after the incident. He said that it had no cover and that wires were protruding from the box.

12. Mr Atkins gave evidence that he can recall his hands slipping but he cannot recall anything after that until getting off the ground. He said that he was thrown about three to four metres back and landed on the garage floor. He said that he was not sure whether he was knocked unconscious, but he recalls waking up on the floor and feeling disoriented. He did not know the length of the time that he was on the floor. He said that the back of his head was very painful, and he had a massive lump on the back of his head. He said that he saw the open junction box and knew that he had been electrocuted. He agreed that it was a frightening event.

13. Mr Atkins said that following the incident, he went back to the house and slept and was then woken up by Mrs Atkins at about 8 pm. He said that Mrs Atkins definitely wasn’t in the house at the time of the electrocution, and that he could only surmise that she was picking up the children. He said that he was sore all over, feeling bruised or beaten up. He said that he had a throbbing bump on the back of his head and that had moved onto what he thought were migraine headaches. He said that his neck was very sore.

14. Mrs Atkins gave evidence that she was not with Mr Atkins at the time that the electrocution took place. She said that she was at home and inside the house  and can remember him coming in and saying that he had been electrocuted. She said that he told her that he was trying to fix the jammed garage door and was thrown to the ground and electrocuted. Mrs Atkins said that she remembered that live wires were involved.

15. She said that the children were not at home. She said that she could not recall what time of day the incident occurred nor the day of the week. She said that Mr Atkins said that he had a sore neck and went to bed and slept. Mrs Atkins said that she recalled him complaining that he had a sore neck and a headache. She said that when his condition didn’t improve, he saw a chiropractor about his neck. She said that over the year following the accident, his pain was increasing.

16. Mrs Atkins said that she remembered that the incident occurred on 2 December 2017. She said that she and the family moved into the Property on 25 November 2017. She said that she recalled that date because she enrolled the children at school so that they would have the opportunity to settle in at school before the new year. She said that prior to moving into the Property, they stayed in a caravan park in Adelaide for a time, although she cannot recall how long. Mrs Atkins said that after the electrocution, Mr Atkins did not undertake much physical work and was complaining. She said that it affected his life. She said that he was on pain killers.

17. There are a number of difficulties with the evidence of Mrs Atkins which lead me to reject her evidence. Mr Atkins gave evidence that Mrs Atkins was not at home when the electrocution occurred which was contrary to her evidence. He said that he went straight to bed after the incident. It is unlikely a person in the position of Mrs Atkins, when faced with someone presenting as she said that

    
    

    Mr Atkins presented, that is someone who had been electrocuted, potentially been knocked unconscious and at the very least was feeling disoriented, had a large lump on the back of their head and was experiencing neck pain, would not suggest that they should see a medical practitioner. Mr Atkins told Dr Rothwell that he was disoriented following the alleged electrocution and could not recall exactly who his wife was. He said in evidence that he “knew that they were familiar [to him] but not quite”. Mrs Atkins did not give evidence of any such confusion. It is also doubtful that Mrs Atkins could recall the date of the incident but not recall any other details about the incident including the day of the week, the time of the day or where the children were.

18. I will make findings in relation to the electrocution incident later in these reasons when I have considered all the surrounding evidence including evidence about the incident that occurred after the incident took place.

    Electrocution - burn marks

19. Mr Atkins said that night in the shower he observed a burn mark on his left ankle which is still present. He said that he had also suffered a burn on his left hand. He said that it was below the knuckle of his little finger.

20. Mr Atkins agreed that he told Dr Long about the burn mark to the left hand which he said had healed. Dr Long records a reference to being told about that burn mark in his report (exhibit A2) but said in cross-examination that his report doesn’t record that he saw physical signs of that mark.

21. Mr Atkins said that he also told Dr Long about the injury to the foot. In the history of injury section of his report, Dr Long stated that Mr Atkins said that he was not aware of any exit wounds. In his evidence, Dr Long said that that he enquired about an exit wound and Mr Atkins said that he didn’t recall having an exit wound. Dr Long performed a visual examination of Mr Atkins. I accept

    
    

    Dr Long’s evidence on this topic. The failure of Mr Atkins to refer to the exit wound on the left foot casts doubt on the reliability of Mr Atkins’ evidence and his willingness to reconstruct his evidence.

22. Mr Atkins did mention a burn mark on the left foot to Dr Panayiaris and Dr Rothwell in the preparation of their reports some 2 years later. In his report, Dr Panayiaris recorded Mr Atkins saying that there had been a small burn to the left hand which had healed and which he assumed to be an entry wound and that he was not aware of any exit wounds. However, later in the report, Dr Panayiaris records that Mr Atkins saying that he had a burn mark to his left hand and left foot. Dr Panayiaris gave evidence that if there was an entry and exit burns, there would be evidence of those marks, three to four years later. The healed tissue would present differently from tissue that had not sustained any burn. He said that a significant electrocution causing the injuries alleged by Mr Atkins would usually result in substantial entry and exit burns. Dr Panayiaris gave evidence that he did not see any burn marks.

23. Mr Atkins also gave evidence about a burn to his forehead. When asked whether he had an exit or burn on his forehead, he said “again, this is my language, I call it an exit point as in that it would have been the point that it exited, whether it left a scar or not is not what I’m saying.” In his written submissions filed in this Court prior to the commencement of the trial (exhibit A81), Mr Atkins stated “There is indeed an exit burn on my left foot, however there were two other exit points on Atkins, the forehead against the steel door, the right hand on the steel door.” The written submissions went on to say that nothing was burned on the forehead, but a slight discolouring. When asked in cross-examination, he said that he could not confirm whether that was the first time that he had mentioned an exit point on his right hand.

24. Mr Atkins accepts that he thinks that he did not mention to any of the medical specialists that he had sustained a burn to his forehead. In cross-examination, he was vague in his response.

25. The evidence of Mr Atkins on the burn marks is inconsistent. He did not refer to a burn mark on the forehead (or a discolouring) to any of the medical practitioners, when it could be expected that he would do so. He first mentioned it in his written submissions prior to trial. Mr Atkins referred to an exit point on his right hand in his written submissions but did not advise Dr Long or Dr Panayiaris of that mark. Further, Mr Atkins did not advise Dr Long of the exit mark on his left foot. Still further, there was no evidence from Dr Panayiaris of the physical marks that entry or exit wounds would have left, although he said that there would still be evidence of such marks.

    Complaints about the Property after 2 December 2017

    3 December report as to defects

26. Mr Atkins gave evidence that he commenced preparing a report on 3 December 2017 (exhibit A28) regarding the defects in the Property. The report is headed 3 December 2017 but dated 18 December 2017. Mr Atkins said that he commenced preparing the report on 3 December 2017 but did not complete it until later. Mr Atkins sent emails to Ms Cauchi on 3 December 2017 and 6 December 2017 (exhibit R124) in which reference was made to the report. In the 6 December 2017 email, Mr Atkins states that it has been a few days, but he was yet to receive a response about his concerns regarding the condition of the Property. Ms Cauchi made reference to the report in her email dated 6 December 2017.

27. In these circumstances, it is clear that the report headed 3 December 2017, was sent to Ray White on 3 December 2017. It is not clear why the report at exhibit A28 is dated 18 December 2017, but it is likely that the report was re-sent at about that time as that is the date when Mr Atkins commenced proceedings in the Magistrates Court.

28. The report is clearly contemplating legal proceedings as it refers to Mr Atkins as the “plaintive” [sic] and the agent on behalf of the landlord as the defendant. The report referred to the claim of the plaintive[sic] to settle [sic] by the Magistrates Court. In the report, Mr Atkins describes himself as “semi-retired to become an author.” Mr Atkins said that was “gilding the lily”. He said that he did not want to reveal his secret plans to undertake the cabin development. He said that he had written the first draft of a book and that is why he described himself as about to become an author. That explanation is not satisfactory. Even if the cabin development was a possibility, that did not provide a reason for Mr Atkins to describe himself in a false way.

29. The report lists over 50 defects. In relation to the beehive, it refers to

    
    

    Mr Atkins being stung several times whilst in the backyard. Ms Cauchi gave evidence that a work order was issued to Adelaide Pest Control for the removal of the bees (exhibit R127) and to Plumbfast for fixing the garage doors (exhibit R129).

30. The report makes no reference to the alleged electrocution, which on

    
    

    Mr Atkins’ evidence occurred on the previous day. It is inexplicable that no reference would be made to such an event in a report complaining about the condition of the Property and the hazards that were present at the Property. It is inconsistent with his complaint about being stung by the bees.

31. There is reference in the report to bare live wires, live wires exposed in the garage. The report states:

    The garage.

    4.2.1 Completely unstable and out of bounds due to inoperative doors and serious hazard to life.

    4.2.2 the electrical is a serious hazard because live wires are exposed.

    4.2.2.1 the plaintive [sic] has to isolate the garage or the electrical supply will condemn the whole property and cut of [sic] power to the property.

    4.2.3 Plastic over junction box, illegal period.

    4.2.4 Bare live wires, junction box, seriously illegal.

    4.2.5 Internal wiring must be in impact safe conduit illegal.

    4.2.6 Garage doors are not operational, they are jammed shit, needs complete overhaul. Safety fire risk cannot get out of the garage if there is a fire;

    4.2.7 Barrel bolts are broken; to open the door, it’s a two man job to hole up the lock,

32. It is not clear what Mr Atkins is referring to when he made these statements. He said, in relation to his 10 November report, that the reference to bare electrical wires in the garage was a reference to the wires in the roof on the eastern side of the garage (not where the alleged electrocution occurred). It is therefore reasonable to conclude that the reference to live wires being exposed and “bare live wires” was not a reference to the junction box being uncovered. There is no reference to a junction box being uncovered in the report. Given the detail of the complaints about the garage and the other parts of the Property, it would be expected that

    
    

    Mr Atkins would have made a reference to that fact in his report, if that was an observation that he had made at that time.

    Creation of the event log

33. Following receipt of the report, Ms Cauchi prepared an event log on

    
    

    6 December 2017 (exhibit R125) in which stated in relation to the electrical issue “exposed wires in garage, cover has broken off.” She also stated, “garage door worn and very hard to open”. Ms Cauchi says that she got that wording from the list of defects prepared by Mr Atkins on 3 December 2017. She said that the words “cover has broken off” were not in the 3 December list prepared by Mr Atkins but were her interpretation of his complaint in that list. I accept that this is the case as there was no other communications between Ms Cauchi and Mr Atkins on these defects prior to 6 December 2017.

34. Ms Cauchi had not seen the electrical work in the garage. The event log created on 6 December 2017 also referred to some plumbing work to be undertaken, service of ducted air conditioning and Puratap filter change. These descriptions are not exact copies of the words used in the list of defects prepared by Mr Atkins on 3 December 2017 but are evidently Ms Cauchi’s interpretation of what was required by the list.

35. Ray White sent the maintenance request to Mr Adie to undertake the necessary electrical work. The event log was amended on 8 December 2017 as

    
    

    Mr Atkins advised by email that he had undertaken the drainage work himself (see exhibit R128).

    Attendance of Mr Adie at the Property on 15 December 2017

36. Mr Atkins said that Mr Adie attended the Property on 15 December 2017 to undertake electrical work in the garage. Mr Atkins said that he was with Mr Adie when the work was undertaken. Mr Atkins said there was no cover on the junction box near the garage doors when Mr Adie came to inspect the electrical work in the garage. Mr Atkins said that it was not the case that there was a cover on the junction box which had a hairline crack. He said that there was no cover whatsoever.

    
    

    Mr Atkins said that Mr Adie did not just put a cover over the junction box but moved everything and “rearranged the whole lot, cut wires, threw some out and so on”. Mr Atkins said that he told Mr Adie that he was electrocuted where the wires were exposed in the junction box next to the garage door. He said that the copper wires were sticking out and that is what went into his hand.

1. Mr Adie gave evidence of his attendance at the Property on 15 December 2017 and in particular at the garage, Mr Adie denied having a conversation with Mr Atkins in which Mr Atkins advised him that he had been electrocuted. Mr Adie said that he had received a work order from Ray White (exhibit R98). He said that Mr Atkins was present when he performed the work. Mr Adie gave evidence that Mr Atkins pointed out the junction box to him and pointed out the hairline crack. He said that there was a white junction box close to some circuit breakers near the garage door. He said that the junction box had a cover over it which had a hairline crack. Mr Adie gave evidence that he replaced the replaced the whole junction box and not just the cover. That was the extent of the work that he performed, and he did not re-wire everything and move the junction box. Mr Adie took a photograph of that junction box after he had fixed it (exhibit R95).

2. Mr Adie said that no wires protruded from the junction box. He said that the junction box was not exposed when he attended on 15 December 2017. He said that the junction box was about 150-160 cm off the ground. He said that it was above shoulder height. He said that there were no live wires present.

3. In his invoice (exhibit R97), Mr Adie referred “to supply and replace faulty junction box in the garage”. He said that he described the work in this way because the junction box was cracked and he replaced it. The reference to faulty junction box does not suggest a junction box that was uncovered.

4. Mr Adie gave evidence that there were two junction boxes that had duct tape over them on the wall of the garage nearest to the house. He said that he was asked by Mr Atkins to replace those boxes but did not do so as he did not consider that they needed to be replaced.

5. I accept the evidence of Mr Adie concerning the work that he carried out on 15 December 2017 on the electrical wiring in the garage. I also accept Mr Adie’s evidence about what he was told by Mr Atkins about the alleged electrocution. As stated previously, Mr Adie was an independent witness and had no reason to lie. The work that Mr Adie said that he undertook is consistent with his invoice and the extent of the work described in that invoice. Further, Mr Adie gave clear evidence of the work that he undertook. There was no reason to completely rewire the wires going into the junction box as Mr Atkins contended. That is not consistent with the terms of the invoice of Mr Adie or the photograph.

6. Mr Atkins submitted that Mr Adie’s evidence should be rejected for a number of reasons. First, he referred to the invoice of Mr Adie which described the work that was undertaken on 15 December 2017 as supplying and replacing a faulty junction box in the garage. I accept Mr Adie’s explanation that he used that explanation because he replaced the junction box that had a hairline crack. I do not consider that evidence calls into question Mr Adie’s evidence about what he observed or the work that he performed on the junction box. That description is in conformity with his evidence.

7. Mr Atkins also relied on the words used by Mr Adie in his email to Ray White dated 20 December 2017 (exhibit R99) when he reported on the work that he had performed at the Property. Mr Adie referred to identifying and fixing the issue with the exposed junction box in the garage. I accept his explanation that he used those words because they were similar to the words in the works order issued to him by Ray White (exhibit R98).  Neither of these matters caused me to doubt the evidence or credibility of Mr Adie when he gave evidence that the junction box was not uncovered when he attended on 15 December 2017.

8. Mr Atkins also made the submission that Mr Adie’s testimony was false when he said that the covers are clipped to the junction box and are not screwed in. When making that statement, Mr Adie was referring to the junction box that was replaced. Mr Atkins referred to photographs of the junction box to suggest that evidence was false. The difficulty with that contention is that the photographs relied upon by Mr Atkins are photographs of the new junction box (exhibit R97). Further, I do not consider that even if that contention was correct, that it would cause me to doubt Mr Adie’s testimony and his evidence that the junction box was covered. That detail is not critical to his evidence that the junction box was covered when he attended on 15 December 2017 but had a hairline crack.

9. Mr Atkins also contended that the photograph taken of the junction box before it was replaced (exhibit A27, photograph numbered p 187) showed that the junction box was uncovered at the time that Mr Adie attended on 15 December 2017. The difficulty with that contention is that it is not clear who took the photograph and when it was taken. The photograph is extracted from a report from the OTR dated 4 October 2018 (exhibit A26 and A27). That report refers to the photograph being taken on 22 December 2017. That date must have come from

   
   

   Mr Atkins as he made the report to the OTR. If that was the case, then that photograph was taken after the junction box had been fixed. Mr Atkins gave evidence that he did not know if he took the photograph. Mr Adie said that he did not take the photograph.

10. Mr Atkins sent an email Ray White on 15 December 2017 saying that the electrician had been that day and fixed the dangerous wires (exhibit R129).  Again, it would be expected that Mr Atkins would have made reference to the electrocution in this email, had the electrocution occurred in the way that he claimed.

    Statements by Mr Atkins to medical practitioners about the electrocution

11. Counsel for the respondents submitted that Mr Atkins had given inconsistent accounts of the incident to the various medical practitioners that he had seen.

12. Mr Atkins told Dr Long, the occupational physician that he retained for the purposes of the proceedings, that he had sustained an electric shock when trying to open a heavy metal sliding garage door. He told Dr Long that he was pushing with his right hand while bracing on the adjacent concrete block wall with his left hand and that his left hand had slipped and came into contact with an uncovered junction box on the wall. He said that he recalled regaining consciousness on the concrete floor a few metres back flat on his back. Apart from the evidence about being knocked unconscious, this account was consistent with the evidence

    
    

    Mr Atkins gave in Court. In Court, he said that he could not recall if his was knocked unconscious.

13. In his report (exhibit R137), Dr Panayiaris stated that when Mr Atkins was attempting to open a jammed steel door, he was pushing with his right hand when his left  hand slipped into an unseen open junction box with live wires. He said that he was thrown back 4-5 meters landing on his head and was unconscious for a period of time. That is consistent with Mr Atkins’ evidence, except that Mr Atkins said in Court that he could not recall if he was knocked unconscious. The report of Dr Rothwell (exhibit R82) does not say which hand slipped. Nothing can be inferred from that fact.

    Consulting a medical practitioner about the electrocution

14. Mr Atkins gave evidence that he did not see a doctor about the electrocution in itself but did see doctors about some of the symptoms that he was experiencing, including his sore neck. Mr Atkins said that the first person he saw about his neck following the incident was a chiropractor who he made an appointment to see in mid-February 2018 and saw him about 6 weeks later. He said that at that time, his neck was extremely sore and getting worse. Mr Atkins said that he told the chiropractor about the electrocution incident but there is no note of that. I am not prepared to accept that the chiropractor was told of the electrocution in the absence of a note or evidence from him.

15. He said that sometime after August 2018 he saw a general practitioner, Dr Nolan, who referred him to a physiotherapist, Mr Rick Beal. Mr Atkins admitted seeing a number of medical practitioners during the period from December 2017 to September 2018. He accepted that it was possible that the first time that he made mention of any electric shock to a medical practitioner was when he mentioned it to Dr Nolan on 23 October 2018. Later in cross-examination, he said that he did not agree that he had not told the medical practitioners about the electrocution. Mr Atkins said he did not regard the electrocution as an important event but said that he knew something was seriously wrong but had no idea what it was. Mr Atkins could not point to any note of any medical practitioner in this period which referred to the electrocution.

16. The notes from Dr Nolan indicated that at his consultation with Mr Atkins on 23 October 2018 (exhibit A38), Mr Atkins made mention of the electrocution incident. As Dr Panayiaris reported, Mr Atkins had seen Dr Nolan about 6 times prior to the consultation in September and October 2018 and had seen other medical practitioners in January and February 2018 and August 2018, but there is no mention of being electrocuted in relation to any of these consultations. Dr Panayiaris observed that it would be expected that Mr Atkins would have referred to such a significant event during the course of his consultations.

17. Mr Atkins said that he came to the conclusion that his health concerns were caused by the electrocution because of the whiplash but could not say when he came to that conclusion.

18. I make the following findings.

19. Even though Mr Atkins said that he was experiencing neck pain, the first medical practitioner that he advised about the alleged electrocution was Dr Nolan on 23 October 2018. I have come to that conclusion for the following reasons. First, although he later retracted from that position, Mr Atkins accepted that statement to Dr Nolan may have been the first time that he told a medical practitioner about the electrocution. Secondly, Mr Atkins has not been able to produce any report or note from a medical practitioner prior to October 2018 in which reference has been made to him being electrocuted. Such a statement would be highly significant to any consultation and the medical practitioner would have recorded that information.

20. The failure to refer to the electrocution event in medical assessments is inexplicable. Mr Atkins’ explanation that he was concerned with the symptoms and not the cause of the incident does not withstand scrutiny. Mr Atkins gave evidence that prior to the incident, he did not have any difficulties with his neck. After the incident, he said he immediately began experiencing pain and neck restriction. In such a case, the connection between the two events was obvious and required Mr Atkins to advise the medical practitioners of the electrocution event.

    Hernia injury

21. Mr Atkins also gave evidence that he suffered a hernia on 17 December 2017 when he slipped because of a water leak that came from the toilet. Mrs Atkins said that she witnessed that incident. She said the toilet was flooding and because there was no light in the laundry, he slipped on some water outside of the toilet door. She said that she saw him fall.

22. This was initially part of the claim but was abandoned by Mr Atkins in his opening. In these circumstances, I do not propose to deal with this issue except to observe that Mr Atkins referred to it in an email to Ray White dated 18 December 2017. The fact that Mr Atkins advised Ray White immediately of the hernia but did not advise Ray White of the electrocution and its affects upon him is inexplicable.

    Failure to pay rent and relationship with Ray White

23. By mid to late December 2017, the relationship between Mr Atkins and Ray White had deteriorated significantly. In November 2017, Mr Atkins failed to make the first payment for water rates. Mr Atkins had sent the list of building defects on 3 December 2017. By December 2017, Mr Atkins had failed to make payments that were due for rent and water rates and Ray White had sent emails to him about the failure to make these payments (exhibits R130 and R131). This provoked a series of aggressive emails from Mr Atkins (exhibit R131). In the first email dated 18 December 2017, Mr Atkins stated that he was appalled to receive the email and that “It is offensive. It is intimidation. It is threatening to ruin our reputation as well as blackmail”. Mr Atkins goes on to say that he and his wife would be justified in suing Ray White for damages of $600,000 because they would have to purchase a home because renting would be impossible. The email further says that

    
    

    Mr Atkins made a mistake in trusting Ray White. Again, it would be expected that

    
    

    Mr Atkins would refer to the electrocution when he was aggressively communicating with Ray White about his grievances with the Property and why he should not be required to pay rent because of the condition of the Property.

24. In relation to the email sent by Ray White on 18 December 2017, which was a pro forma email referring to the failure to make a rental payment, Mr Atkins did not accept the authenticity of that document because he considered that it was fraudulent or had been tampered with. There was no basis for that contention.

25. On 18 December 2017, Mr Atkins issued a claim in the Magistrates Court against Ray White (exhibit R132).  In that claim, Mr Atkins repeated his allegation that there were “live wires exposed in the garage and bare live wives, junction box, illegal period”. That cannot be a reference to the junction box near the garage door as Mr Atkins accepts that Mr Adie fixed that when he attended at the Property on 15 December 2017. Further, there is no mention of any electrocution in the claim. If the electrocution had occurred, it would be expected that Mr Atkins would have made reference to it. The claim refers to numerous matters that are said to constitute a hazard including the electrical work in the garage. The claim referred to Mr Atkins being stung by the bees.

26. Ms Ciampa gave evidence that the Magistrates Court claim was rejected and Mr Atkins later instituted proceedings in SACAT in respect of the same matters.

27. On 20 December 2017, Ms Cauchi sent an email to Mr Atkins offering to engage a contractor, Property Safe, to undertake an inspection of the Property to identify any safety concerns (exhibit R134). Ultimately, that inspection did not occur because of difficulties in arranging access to the Property.  Mr Atkins sent a response on 20 December 2017 (exhibit R127) in which, although agreeing to the inspection, made no mention of the electrocution even though it would be expected that he would refer to such an incident in the context of a safety report.

28. On 2 January 2018, Ray White sent an email to Mr Atkins enclosing a Notice to Remedy Breach in relation to the failure to pay rent (exhibit R144 and R145). By email dated 2 January 2018 (exbibit R144), Mr Atkins rejected that Ray White was entitled to send the notice. Ms Ciampa gave evidence that this notice had the effect of eventually causing Mr Atkins to bring his rental payments up to date.

29. Mr Atkins accepted that in the period prior to 15 January 2018, he had not made any report to Ray White about the electrocution but said that he did tell

    
    

    Mr Adie about it when he attended the Property on 15 December 2017, an allegation that I have already rejected. Ms Cauchi said, which I accept, that during the time that she was property manager in relation to the Property, she was not advised by Mr Atkins of the alleged electrocution.

30. In his email to Ms Cauchi dated 1 February 2018 (exhibit R135), Mr Atkins said  that “I will legally hound you every day of your life to the day you die, if my girl is not able to recover 100%”. In evidence, he said that Ms Ciampa had sent fraudulent documents to him. There was no basis for that allegation.

31. Mr Atkins also made it difficult for Ray White to conduct a routine inspection of the Property (see emails dated 22 February and 24 February 2018) (exhibit R146). It is not necessary to make any findings about that matter, but it does evidence a breakdown in the relationship between Mr Atkins and Ray White.

    Complaint to the Office of the Technical Regulator

32. Mr Atkins made a report to the Office of the Technical Regulator (OTR) on 6 February 2018 about the condition of the electrical work at the Property. He said that he made the report because of concerns that he had regarding the safety of the Property. The complaint is referred to in the report from the OTR dated 4 October 2018 (exhibit A26). The OTR did not ever visit the site. The 4 October report states that they did not do so because Mr Atkins had a history of abusive behaviour towards them. The 4 October report from the OTR (exhibit A26) refers to

    
    

    Mr Atkins sending three photographs. It refers to the third photograph as being taken on 22 December 2017 and showing the location of the junction box on the eastern wall.

33. Mr Atkins gave evidence about the three photographs that were included in the report from the OTR dated 4 October 2018 (exhibit A26). Mr Atkins said that the first photograph (exbibit A27, p185) showed the western wall of the garage with Mr Atkins’ utility. He said that the second photograph (p 186 of exhibit A27) showed the taped junction box near the roof on the eastern wall of the garage. He said  that the third photograph (p 187 of exhibit A 27) showed the exposed junction box which his hand slipped into. He said that the small wire, close to the red wires, is what dug into his skin.

34. Based on the photographs, the OTR issued a directive to Mr and Mrs Hughes dated 12 February 2018 (exhibit A35) to undertake rectification work although it is not entirely clear what work was required on the junction box. It is clear that the junction box, which was the subject of the alleged incident had, on Mr Atkins’ evidence, been repaired by Mr Adie on 15 December 2017. There would have been no reason for Mr Atkins to report any fault in that junction box in February 2018. In fact it would be dishonest to include in that report an issue with the junction box when that issue had been rectified.

35. The 4 October 2018 Report referred to a further letter being received by OTR from Mr Atkins on 4 July 2018 (but dated 4 June 2018). The letter attached a further photograph of a junction box dated 28 November 2017. That photograph could not have been of the junction box that allegedly caused the electrocution as Mr Atkins had not observed the box at that time. The OTR report refers to

    
    

    Mr Atkins indicating that he received an electric shock on some live wires when opening the garage doors. The report indicated that there was no indication when this happened, and no shock report had been submitted. On 27 July 2018, Ray White advised OTR that they had attended the Property and took photographs of the junction boxes in the garage.

36. On 27 July 2018 (exhibit R103), the OTR sent a letter to Ray White stating that it looked as though Mr Adie had rectified the electrical work and there were no electrical dangers evident in the garage. The 4 October 2018 report said that satisfied the obligations of the owner.

37. Two matters are clear from this evidence. First, there is no reference to

    
    

    Mr Atkins being electrocuted until July 2018. The report notes that on 6 February 2018, Mr Atkins brought to the attention of OTR what were described as potentially dangerous electrical issues. It is not conceivable that Mr Atkins, in complaining about the state of the electrical work, would not have raised in that complaint, details of the electrocution incident, had it occurred. Secondly, the OTR report refers to the photograph being taken on 22 December 2017. If that was the case, the junction box had been repaired, on Mr Atkins evidence (and on Mr Adie’s evidence), by the electrician, Mr Adie on 15 December 2017. It could not have been in that condition on 22 December 2017. Mr Adie said that he did not take the photograph.

38. Mr Atkins agreed that it was not until about a couple of years later that he submitted a shock report to the OTR reporting that he had been electrocuted (exhibit R152). That report was received by the OTR on 4 December 2019. Mr Atkins said that he needed to make the report in 2019 because he was very concerned about his and his family’s safety. That does not explain why a report was not made in December 2017 or in February 2018 when Mr Atkins made the first report to the OTR. In fact, by 2019, on Mr Atkins’ evidence, the junction box had been fixed.

1. The respondents did not call as a witness the person who conducted the inspection at the beginning of the tenancy of Mr Atkins. Mr Atkins gave evidence that no-one from Ray White attended the Property on 1 November 2017 when the inspection was said to be carried out. The inspection report was copied from an earlier report made in 2016 such that the more probable inference was that either no inspection took place, or no adequate inspection took place. If an adequate inspection had taken place, the results would not have been virtually identical to the inspection that had taken place the previous year. It follows that the respondents failed to carry out an adequate inspection at the time of the commencement of the tenancy and were therefore in breach of their duty of care, subject to the possible application of s 21 of the Civil Liability Act.

2. It cannot be contended by the respondents that in the event of there being an uncovered junction box, Mr Atkins had not established that the junction box was in fact uncovered at the commencement of the tenancy and that it had not become uncovered after Mr Atkins had moved into the Property. If Mr Atkins’ evidence is accepted and the junction box was uncovered on 2 December 2017, the more probable inference is that it was also uncovered on 1 November 2017 (being the date when Mr Atkins moved into the Property). That is the more probable inference because Mr Atkins said that he had not observed the open junction box and had not worked or interfered with the box during the period from 1 November 2017 to 2 December 2017. Further, there was no evidence that the cover had broken off during that period as, if it had, it would have been found on the ground by

   
   

   Mr Atkins at the time of the alleged electrocution.

   Breach of the Tenancy Agreement

3. Under s 68(1) of the Residential Tenancy Act, the respondents must ensure that the Property is in a reasonable state of repair at the beginning of the tenancy. The Tenancy Agreement entered into between Mr Atkins and the respondents (exhibit A17) provides that the landlord will provide and maintain the property in a reasonable state of repair at the beginning of the tenancy and keep them in a reasonable state of repair having regard to their age, character and prospective life and abide by all legal requirements regarding the buildings and health and safety in respect of the premises.

4. In relation to a similar statutory obligation under the equivalent Queensland legislation, Williams JA in Gration v C Gillan Investments Pty Ltd,[48] said that the obligation required the lessor:

   … to take steps to ascertain and satisfy himself that the premises are in a state of good repair at the start of the tenancy; the lessor cannot sit back and say that as the previous tenant has not complaint of any defect therefore the premises must be in a state of good repair. The use of the term ‘ensure’ obliges the lessor to take reasonable steps to ascertain and satisfy himself that the premises are in good repair at the start of the tenancy.

   [48] [2005] QCA 184, [8].

5. In Varricchio v Wentzel,[49] Doyle J held:

   Understood in this way, the net effect of the first limb of the s 68(1) obligation to repair is that the landlord will be in breach when the premises, at the commencement of the tenancy, are not in a reasonable state of repair by reason of a defect which ought reasonably to have been apparent upon an inspection of the premises prior to commencement of the tenancy. This is so regardless of whether the landlord (or their property manager) did in fact inspect or otherwise become aware of the defect. By reason of s 68(1a), it is also so regardless of whether or not the tenant in fact had notice of the defect by reason of their own inspection of the premises.

   [49] (2016) 125 SASR 191, [47]; [2016] SASC 86.

6. While a breach of the Residential Tenancy Act, does not give to a statutory cause of action, there remains a breach by the respondents of their obligations under the Tenancy Agreement.  For the same reasons as set out in relation to the claim in negligence, if there was an exposed junction box, the respondents have breached their obligations under the Tenancy Agreement because their agents, Ray White, did not carry out an adequate inspection.

7. The Tenancy Agreement includes a  term that Mr Atkins acknowledges being shown through the Property and accepts the property in the condition that it was so inspected. I do not consider that operates to exclude a breach by the respondents of the obligation to provide the Property in a reasonable state of repair at the beginning of the tenancy. That term does not contain any acknowledgement that the property was in a reasonable state of repair. There is no reference to the junction box. As Doyle J observed in Varricchio v Wentzel,[50] the obligations imposed upon the landlord exists irrespective of whether the tenant had notice of the defect.

   [50] Ibid.

   Causation

8. Given my findings that the electrocution incident did not occur, it is not necessary to consider questions of causation. However, it is appropriate that the question of causation is addressed by the Court.

9. Causation under the Civil Liability Act requires consideration of factual causation and scope of liability. Section 34 provides:

   Division 2—Causation

   34—General principles

   (1)    A determination that negligence caused particular harm comprises the following elements:

   (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and

   (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

   …

   (3)    For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

10. Factual causation requires the court to be satisfied that but for the negligence, the harm would not have occurred.[51] The Civil Liability Act embodies the “but for” test of causation.[52] Proof of causation is to be assessed in a practicable and robust manner.[53] Often it will be the case that a finding of breach, followed closely by damage and loss, will prima facie give rise to an inference of causation, in the absence of evidence to the contrary. Thus, in Bennett v Minister of Community Welfare,[54] Gaudron J held (quoting in part from Dixon J in Betts v Whittingslowe)[55]:

    In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a “breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty.

    [51] Tapp [101].

    [52] Ibid.

    [53] Queen Elizabeth Hospital v Curtis [2008] SASC 344 [44].

    [54] (1992) 176 CLR 408 at 420-421; [1992] HCA 27.

    [55] (1945) 71 CLR 637 at 649; [1945] HCA 31.

11. Callinan J in Naxakis v West General Hospital[56] adopted the same approach when he held:

    Where, as here, a plaintiff demonstrates that it was open to a jury to conclude that the respondents were in breach of their duty of care to him and this breach was closely followed by his damage, a prima facie causal link is established. It may be displaced and it may be rejected; but it cannot be ignored in considering a motion for judgment for the defendant for the want of evidence.

    [56] (1999) 197 CLR 269; [1999] HCA 22 [76].

12. In the present case, the primary harm that Mr Atkins alleges that he sustained in the electrocution was an injury to his neck. Mr Atkins has a neck injury and Dr Panayiaris was of the opinion that Mr Atkins suffers from neck pain and a significant restriction in the movement of his neck. However, I have found, in accordance with the opinion of Dr Panayiaris, that Mr Atkins’ neck pain and injury were the result of a degenerative condition not linked to the incident and from psychosocial issues. Mr Akins did not produce any expert opinion supporting his position that the neck injuries were caused by the incident except that of Dr Long. Dr Long said that if the electrocution incident occurred as alleged, then he was of the opinion that Mr Atkins had suffered a soft tissue injury to the neck with an aggravation of previously asymptomatic underlying degenerative changes.

    
    

    Dr Long said in cross-examination that he could not rule out that the symptoms of Mr Atkins could be entirely the result of his degenerative condition. I accept the opinion of Dr Panayiaris that the condition of the neck and the neck pain that

    
    

    Mr Atkins experiences comes from a degenerative condition and not from the incident or an aggravation of the degenerative condition in the incident. Dr Long does not disagree with this conclusion if Mr Atkins’ account is not accepted.

13. I have come to the conclusion that Mr Atkins’ neck condition was caused by a degenerative condition for a number of reasons. First, it was not until 23 October 2018 that Mr Atkins first consulted a medical practitioner, Dr Nolan, about his neck injury. Secondly, on that consultation, Dr Nolan noted that there was good and normal movement of the neck and a normal amount of pain on rotation. Thirdly, a whiplash injury would have caused acute neck pain immediately following the incident. Fourthly, Mr Atkins attributes all of his conditions to the alleged electrocution. In respect of many of those conditions, it has been established that they either pre-dated the alleged electrocution incident or there is no evidence, other than the evidence of Mr Atkins, which supports their existence. Fifthly, there appeared to be a later incident on 7 March 2021. On 7 March 2021, Mr Atkins wrote to Dr Nolan and stated that he had seriously aggravated his neck on that date. Sixthly, an MRI scan taken on 8 April  indicated degenerative changes to the neck. Seventhly, it was the evidence of Dr Panayiaris that an acute injury will improve over time but that a degenerative condition will deteriorate. This injury has deteriorated over time.

14. It follows that Mr Atkins has not established that his neck pain was caused by the incident.

15. Mr Atkins alleged that he suffered from a brain injury and loss of concentration and short term memory loss as a result of the electrocution.

    
    

    Dr Rothwell gave evidence, which I have accepted, that Mr Atkins had not suffered any impairment to the brain as a result of the electrocution or hitting his head on the ground or any whiplash injury. There was no evidence from any medical practitioner to the effect that Mr Atkins had suffered brain injury or loss of concentration or short term memory loss as a result of the electrocution. It follows that Mr Atkins has not established that these conditions were caused by the incident.

16. Mr Atkins alleged that he now suffers from aphasia because of the electrocution. Again, this is self-diagnosed and there is no medical support for the proposition that Mr Atkins suffers from aphasia. Dr Rothwell gave evidence, which I have accepted, that it was highly unlikely that Mr Atkins was suffering from aphasia. It follows that Mr Atkins has not established that he had aphasia or that it was caused by the incident. Mr Atkins gave evidence that it was aphasia and not dyslexia that he had developed from the electrocution incident. He said that he had dyslexia since childhood.

17. Mr Atkins alleged that he now suffers from a food intake disorder such that he can only eat processed cooked potato chips each night. That condition is self-diagnosed. I have rejected that evidence. There is no medical support that Mr Atkins suffers from that food intake disorder or that it was caused by the electrocution. It follows that Mr Atkins has not established that he has a food intake disorder or that it was caused by the incident.

18. Mr Atkins alleged that he suffers from sleep apnoea. He has been treated for that condition which is now under control. There is no evidence, medical or otherwise that the electrocution caused or exacerbated this condition. It follows that Mr Atkins has not established that either he did not suffer from sleep apnoea prior to the incident or that it was exacerbated as a result of the incident.

19. It is also clear, and Mr Atkins gave evidence that he had suffered PTSD and depression well prior to the incident. His depression was such that he was not able to work for 3 years from 2014 to 2017. He had suffered chronic PTSD as a result of his early childhood experiences and had sought treatment from Dr Ford from about 2011 for that condition.

    Contributory negligence

20. The respondents submitted that the amount of any damages should be reduced on account of contributory negligence of Mr Atkins. It is not necessary to the outcome of the claim to consider this issue given my finding that the electrocution incident did not occur as alleged and therefore the respondents were not negligent.

21. Section 3 of the Civil Liability Act defines contributory negligence as meaning:

    A failure by a person who suffers harm to exercise reasonable care and skill for his or her own protection of for the protection of his or her own interests.

22. Section 44 of the Civil Liability Act provides that the principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm has been contributorily negligent.

23. Section 31 sets out the principles that apply in determining whether a person is negligent. Section 31(1) states:

    For determining whether a person (the "defendant") was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.

24. The question of apportionment for the purposes of contributory negligence involves questions of balance and relative emphasis and weighing different considerations. In Podrebersek v Australian Iron & Steel Pty Ltd,[57] Gibbs CJ, Mason, Wilson, Brennan and Deane JJ held:

    [a] finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’... 

    [57] (1985) 59 ALJR 492 at 493-4. Cited in State of Queensland v Kelly [2015] 1 Qd R 577; [2014] QCA 27 [54].

25. The respondents claim that Mr Atkins’ negligence contributed to the electrocution incident because of: (1) his reckless and careless approach to the wiring; (2)  his failure to advise of the need for repairs to the electrical work;

    
    

    (3) his failure to isolate problematic electrical works until repairs could be undertaken; (4) his failure to take precautions to cover alleged exposed wires until repairs could be undertaken; and (5) his failure to keep a proper look out in the garage in circumstances in which he was aware of the alleged electrical issues.

26. These matters proceed on the assumption that Mr Atkins was aware of the exposed wires and failed to report the issue. The Court has found that the junction box was not exposed. Even if it was accepted (contrary to that finding), that the junction box was exposed, it does not follow that Mr Atkins was aware of that fact. The opening of garage doors is not an inherently dangerous or risky act that requires particular attention be given to the possibility of exposed junction boxes in the vicinity. There is no logical connection between the opening of garage doors and electrocution that would require someone opening garage doors that are stuck to take precautions against the risk of electrocution from a nearby exposed junction box of which they were not aware.

27. It follows that had the electrocution incident occurred as alleged by

    
    

    Mr Atkins, I would not have found that the respondents had established that

    
    

    Mr Atkins was guilty of contributory negligence.

    Losses claimed by Mr Atkins

28. Any assessment of loss is artificial given that it is contrary to the factual findings that I have made. However, it is possible to make some findings about the losses claimed by Mr Atkins.

    Claim for economic loss.

29. Mr Atkins has claimed that he suffered economic loss in that he has not been able to carry out a number of ventures that he says he intended to carry out and therefore lost the profits that he would have derived from those ventures. It is not the case that Mr Atkins says that he would have carried on work as a builder.

30. First, Mr Atkins claims the loss of profit arising from not being able to carry out the proposed cabin development. The claim for loss resulting from the proposed development has not been established. The possibility that the development would proceed was extremely remote. The owner of the property upon which the development was to take place had not agreed to sell the property and in fact there had not even been any negotiations with them, including about price. No planning approval had been granted nor any advice received as to whether such approval was likely or what conditions might be imposed. There was no evidence that Mr Atkins could finance the purchase of the property or the construction work. Only the basic details of the development had been prepared by Mr Atkins and there was no independent costings or feasibility study. Mr Atkins had not undertaken a development of anything like this size previously and in my view, did not have the skills or resources to do so. There was no evidence that the proposed development would be profitable.

31. In all of these circumstances, the possibility that the development would proceed and yield a profit is negligible at best. Even if the Court had found that the electrocution occurred, Mr Atkins has not established any loss if a finding was made that he was unable to proceed with his plans for this development because of injuries he sustained in the incident.

32. Secondly, the claim for loss from the potential house inspection business was also speculative. Any loss would be dependent on a finding that Mr Atkins was unable to perform this work because of an injury to the neck that was suffered in the electrocution incident and not from a degenerative condition. Dr Long said that on his examination, Mr Atkins was not fit for the heavy physical demands of a self-employed builder but could perform light physical work. The work quoted for in A74 (being a quote to Allianz work relating to the property owned by Mrs Atkins  at Coober Pedy) and subsequently performed suggests that Mr Atkins was capable at least of undertaking light physical work. The work on the solar panels and the painting of the house at Coober Pedy also suggests that Mr Atkins is able to perform light physical work of the nature required in a building inspection.

33. Even if it was established that Mr Atkins could not undertake the physical work necessary to perform house inspections, Mr Atkins had only undertaken a few preliminary steps in establishing this business, namely, to purchase some items needed to carry on the business and to register a business name. Those matters indicate an intention on the part of Mr Atkins to establish the business. However, Mr Atkins had not undertaken any marketing or examination of the market for this work. There was no evidence of the sources of work that might be available to

    
    

    Mr Atkins. There were no costings of the expenditure that might be required in carrying on the business although it might be expected that such costs would be relatively minimal but would include some marketing/advertising and insurance. However, there was no evidence of the market for house inspections and what income or profit Mr Atkins could expect to make. In these circumstances, any award of damages in respect of these losses could only be nominal.

1. The third venture that Mr Atkins gave evidence that he intended to carry on  was the furniture making business. Mr Atkins said this was more like a hobby and that cabinet making was his passion. Again, there were no costings of the expenditure that would be required in carrying on the business or the expected income or profit. Given the way in which Mr Atkins has described this business as a hobby, he was not seeking to make a profit from the business. In these circumstances, any award of damages in respect of the loss from not being able to carry on that business would only be nominal.

2. The fourth venture described by Mr Atkins was the installation of solar panels. Mr Atkins’ evidence was that he did not intend to undertake that work when he moved to Adelaide. There was no evidence of the profit expected to be derived if that business was in fact carried on. In these circumstances, it would not be appropriate to award any damages to Mr Atkins for the loss of opportunity to carry on this business.

3. There was some suggestion by Mr Atkins that he was claiming for the loss of rental of the property at Coober Pedy. There are four reasons why the loss of rental could not form part of the claim. First, any loss is that of Mrs Atkins, not Mr Atkins. Secondly, any loss arose from the lessee moving out, not as a result of the incident and any injuries sustained by Mr Atkins. Thirdly, there is no connection between Mr Atkins’ injuries and the loss of rent. Fourthly, it is not clear how Mr Atkins can have suffered any loss as the panels were installed.

   Claim for non-economic loss.

4. Damages for non-economic loss are calculated according to the rules prescribed by s 52 of the Civil Liability Act. Section 52(1) provides that damages may only be awarded for non-economic loss if:

   (a)The injured person’s ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days; or

   (b)Medical expenses of least the prescribed minimum have been reasonably incurred in connection with the injury.

5. Assuming the incident occurred as alleged and that incident caused the injury that Mr Atkins alleged that he has suffered, the threshold for the award of damages has been satisfied. Mr Atkins has suffered an on-going injury to his neck. 

6. The threshold requirement having been met, s 52(2) then requires an assessment of the injured person’s total non-economic loss being assigned a numerical value on a scale running from 0 to 60 (the scale reflecting 60 equal graduations of non-economic loss from a case in which the non-economic loss is not severe enough to justify an award of damages to a case where the injured person suffers non-economic loss of the gravest conceivable kind). The amount of the non-economic loss is calculated by adjusting and multiplying the assigned figure in accordance with s 52(2)(c) and then adjusting that amount by multiplying it by a proportion obtained by dividing the Consumer Price Index for the September quarter of the previous calendar year to the year in which the accident occurred by the Consumer Price Index for the September quarter of 2002.

7. The first stage of that process involves assigning a numerical value for

   
   

   Mr Atkins’ total non-economic loss between 0 and 60. In assigning the value, the purpose of s 52(1) is to fix attention solely upon the relative severity of the non-economic impact of the injuries upon the applicant and compare that impact with the non-economic impact of the most severe and least severe injuries on other hypothetical persons.[58] In the case of pre-existing injuries, if a pre-existing condition is exacerbated or accelerated by the incident, it will be compensable to the extent of that exacerbation or acceleration.[59]

   [58] Jenkins v Maddeford (1990) 157 LSJS 155, 159 per White J; Packer v Cameron (1989) 54 SASR 246, 250-252.

   [59] Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.

8. In the present case, it is very difficult to determine that value as the Court has to make findings as to the extent that Mr Atkins suffered non-economic loss as a result of the electrocution.  The Court has found that the electrocution did not occur as alleged and Mr Atkins did not suffer injuries as a consequence of the alleged electrocution. The evidence of Dr Panayiaris, which I have accepted, was that the physical condition of Mr Atkins was degenerative and not caused by any electrocution. The evidence relating to his mental conditions was that it was PTSD related and again not caused by any electrocution. However, assuming that the electrocution did in fact occur, it is reasonable to conclude that the electrocution did aggravate and accelerate the pre-existing degenerative condition of Mr Atkins’ neck. Mr Atkins is suffering from neck pain and significant restriction in the movement of his neck. However, in assessing non-economic loss for the acceleration of the pre-existing neck injury, it is relevant that Mr Atkins did not commence physiotherapy treatment until November 2018, almost a year after the alleged electrocution. He did not report the neck problems to a medical practitioner until October 2018. In October 2018, Dr Nolan reported that there was good and normal movement of the neck and a normal amount of pain on rotation. In these circumstances, any acceleration or aggravation of the neck injury caused in the electrocution was relatively modest.  In his report (exhibit A2), Dr Long records Mr Atkins describing his neck pain level at 3 out of 10, at worst it will generally increase to 6 out of 10, but it was 10 out of 10 a month ago when driving from a court appearance.

9. The non-economic loss caused by the incident was modest and had it been necessary, I would have been assigned a value of 8. The calculations that flow from that assignment are as follows:

   8 x $1150=$9,200.

   $9,200 x 1.4189 (109.4/77.1)(CPI for the September 2016 quarter divided by       the CPI for the September 2002 quarter)=$13,060 (rounding up).

10. Even assuming the electrocution incident occurred as alleged, I am not satisfied that any of the other injuries alleged by Mr Atkins occurred as a result of the incident such that there is any entitlement of Mr Atkins to claim non-economic loss for these injuries.

11. Mr Atkins would be entitled to special damages in relation to the expenses incurred in relation to his neck injury and had it been necessary, the exercise of determining which of these expenses related to the neck injury could have been undertaken. There was no evidence of future special damages for the costs of treatment in the future. Given the degenerative condition of the neck and the fact that the alleged incident occurred in December 2017, any acceleration of that injury would not be operative in that the costs would have been incurred in any event.

12. There was no evidence of past or future care and assistance that was required.

13. In these circumstances, had the Court been required to assess damages, it would have awarded damages to Mr Atkins in the sum of $13,060 plus special damages.

    Conclusion

14. For the reasons that have been expressed, the claim of Mr Atkins is dismissed.  I will hear the parties as to costs.