Ross v Collins
[2004] QDC 153
•8th April 2004
DISTRICT COURT OF QUEENSLAND
CITATION: Ross v Collins [2004] QDC 153 PARTIES: SIMON ROSS
Plaintiff
and
DESMOND COLLINS
Defendant
FILE NO: D14/2002 PROCEEDING: Claim ORIGINATING COURT: District Court Southport
DELIVERED ON: 8th April 2004 DELIVERED AT: Southport HEARING DATE: 15 & 16 March 2004 JUDGE: Robin QC DCJ ORDER: Claim dismissed, damages assessed CATCHWORDS: Claim by tenant against landlord based for injury to nose allegedly caused by a sheet of glass left in a wardrobe at commencement of tenancy
Residential Tenancies Act 1974Cases cited:
Jones v Bartlett (2000) 205 CLR 166COUNSEL: Mr M E Pope for the plaintiff
Mr N J Thompson for the defendantSOLICITORS: Gall Standfield & Smith for the plaintiff
Grays for the defendant
The plaintiff and the defendant were tenant and landlord respectively from about February 1999 until 7 July 1999 or a day or so afterwards. The premises were unit 2 No. 2 St Kilda Avenue, Broadbeach, one of four two-bedroom units located on the same parcel of land as the house where the defendant and his partner, Ms Madden, resided. Although the defendant operates a real estate business, in the course of which he apparently carries out the functions of a letting agent in the customary professional manner, with formal inspections of the premises (and presumably written tenancy agreements), he said that he treated his own tenants “as family”. Things were done informally in respect of the subject tenancy; there was no written agreement – and the absence of any formal inspection upon which the condition of the premises could be recorded has left the way clear for dispute as to how much property of previous occupiers was left about the place.
Mr Collins and Ms Swinfield, another of his tenants (whose services he engaged to clean out units between tenancies) agree there were items left in the second bedroom of unit 2 (the descriptions of which coincide in part with lists of abandoned property identified by the plaintiff’s witnesses); it is contended by the defendant that those items were removed.
The statement of claim was filed on 9 January 2002. It asserts, in part:
“1.…
(c)the premises comprised:
(i) a clothes wardrobe inside the main bedroom (‘the wardrobe’).
(ii)a large piece of glass within the wardrobe (the glass’).
2.In or about February 1999 (further and better particulars of which cannot be provided until the defendant has disclosed all relevant documents and answered all relevant interrogatories) the plaintiff:
(a) Contracted with the defendant for the tenancy of the premises (‘the contract’).
Particulars
(i)The contract was wholly oral.
(ii)The contract comprised the following relevant express terms:
(A) the Defendant would allow the Plaintiff to reside at the premises on a week to week tenancy.
(B) The plaintiff would pay the defendant $150.00 per week as rent.
(C) The defendant would remove clothes from the wardrobe.
(iii)The contract comprised the following relevant implied terms:
(A) The defendant would inspect the premises prior to the tenancy.
(B) The defendant would prior to and during the term of the tenancy ensure that the premises was:
(I)safe.
(II) clean.
(iv)The implied terms were implied by operation of the Residential Tenancies Act 1974.
(b) Commenced to reside in the premises.
3.Between February 1999 and 7 July 1999 (further and better particulars of which cannot be provided until the defendant has disclosed all relevant documents and answered all relevant interrogatories):
(a) the Defendant owed the Plaintiff a duty.
of care imposed by law.
(i)to take reasonable care to ensure that the plaintiff was not exposed to foreseeable risk of injury.
(ii)to make the premises reasonably safe for the plaintiff’s use.
(iii)to make the premises as safe as reasonable care and skill could make them.
(b) the Plaintiff requested that the defendant remove the clothes from the wardrobe.
Particulars
(i) the plaintiff’s requests of the defendant were verbal.
(ii)the plaintiff’s requests were made on diverse dates when the plaintiff met with the defendant at the premises to pay the rent.
(iii)the plaintiff made between 4 and 6 requests.
(c) in breach of the contract, the defendant failed to:
(i) adequately or at all inspect the premises.
(ii) remove the clothes from the wardrobe.
4.At or about 5.30pm, 7 July 1999:
(a) The plaintiff:
(i) attempted to move the clothes from the wardrobe.
(ii)was struck by the glass then leaning inside the wall of the wardrobe behind the clothes (‘the incident’).
(iii) sustained personal injury comprised of:
(A) a laceration to his nose.
(B) extensive bruising to his nose and face.
5.The incident, the Plaintiff’s injuries, consequential loss and damage were caused by the negligence, or alternatively breach of contract, or alternatively breach of statutory duty of the Defendant.”
The defendant admits (he could hardly do otherwise) his statutory obligations under s 103 of the Residential Tenancies Act 1974. As the case was argued, the relevant duty of the defendant which the Court must consider is the one pleaded in paragraph 3(a)(ii). See Jones v Bartlett (2000) 205 CLR 166, 184-85 per Gleeson CJ and 213-16 per Gummow and Hayne JJ.
The evidence before the Court is highly unsatisfactory. The plaintiff, a young man educated to year 10 level in Victoria, was born on 13 September 1975; he acknowledged that his recollection of “the incident” is poor. The statement of claim suggests to me that the clothes referred to in paragraph 4 are the same as the clothes referred to in the preceding paragraphs, namely belongings of persons other than the plaintiff and his fellow-occupants, and that the plaintiff was injured in the course of an attempt to remove them, the defendant having failed to comply with his alleged duty and promise to do it.
That is not the plaintiff’s version given from the witness box nor that in his “s 92 Statement – Quantum” prepared in accordance with what I understand to be the “Northern practice” and admitted by me into evidence over Mr Thompson’s objection made on behalf of the defendant. The plaintiff (p 13 of the transcript) said he had read the statement on the first day of the trial and that everything there was true to the best of his knowledge. The s 92 Statement says:
“2.3Nicole and I slept in what was the main bedroom. Simon slept in the other bedroom. My bedroom was fitted with a wardrobe. The wardrobe comprised an area for hanging clothes and an area of shelves.
2.4When we moved into the unit, there were a number of items left in the unit. Some items were in the wardrobe, others in the linen closet, others in Simon Brown’s room and in drawers beneath his bed. These items included old clothes, children’s games, old paint tins and a sheet of glass in my wardrobe and in Simon Brown’s room against the wall.
2.5I told Des Collins about these items in the first week after we moved in. I was also present when Nicole asked Des to collect the items. Des told Nicole and I that he would attend to this. These discussions happened on a number of occasions, generally when we paid the rent.
2.6After a couple of weeks, Nicole, my uncle, Lou Ross and Simon Brown took some of the items out of the unit and some were placed immediately outside the front door, others in the communal laundry. Nicole also gave some of the toys to an adjoining neighbour who had children.
2.7Within the first 6 months of the tenancy, I decided to move out. Shortly before moving out, I decided to repaint the back of the wardrobe wall in my room. This was the area above where the shoes would normally sit and had become marked. When I was squatting down and painting the wall, I was struck by a falling piece of glass. I was facing forward into the wardrobe and the glass fell from my right side and grazed my forehead and struck my nose.”
I think the natural meaning of this is that the plaintiff knew from the outset that the offending sheet of glass was in the wardrobe. He did not go into this aspect in the witness box. There, his account was that, in preparation for quitting the premises and to increase the likelihood of being repaid his bond, he was in the process of repairing a hole made in the back wall of the wardrobe by impact of a steel-toed workboot he had thrown or kicked into the wardrobe on some earlier occasion. He recounted in detail spackling the hole and sanding it back. Once the spackle had dried he was either completing spackling or preparing to paint, having poured the paint out ready for application by a roller, according to his cross-examination. In his evidence-in-chief he had given this version:
“On the day of the accident, what were you doing in the unit?-- I think we were just cleaning up the property, just doing a bit of cleaning up around the house.
And why was that?-- We were just looking for a place – somewhere bigger, just to move somewhere a bit larger property. It was just a small unit, that was all.
You were shifting out?-- Yes.
Had you given Mr Collins notice of that?-- No, we hadn’t.
Okay. Now, if you can tell the Court what were you doing at the time of the accident?-- I was in the cupboard cleaning some scuffmarks off and I’d come home from work and kicked my boots off and the bottom of my boot went through the plaster of the cupboard in the bottom of the cupboard.
All right. Just stop there. Did that happen on the day you were doing the-----?-- No. I was repairing the cupboard.
All right. So what happened with your boot, you kicked your boot off?-- Yeah, my boot went through the cupboard. As a result of that I was fixing up the cupboard.
What did it do to the cupboard?-- Put a small hole where the steel cap went through the back of the wall.
At the back of the cupboard?-- Yeah.
How were you fixing the hole?-- Used Spakfilla and a bit of Polyfill and then I sanded it back and started painting.
All right. Now, what position were you in just prior to the accident?-- I was in a squatting down mode faced in towards the cupboard.
All right. Tell the Court then what happened?-- I was doing a bit of sanding, cleaning up the bottom of the area which was all dirty where the dust was, ready to wipe it down to give it a quick paint. I turned around with both doors shut on the right-hand side, I just turned around, it just caught my eye, a sheet of glass fell and struck me in the head and took my nose straight off.”
He said he had never seen the piece of glass before. He was insistent that the wardrobe had been completely emptied, presumably to permit him to work.
The plaintiff has advanced conflicting versions in respect of matters other than the task he was involved in at the time of “the incident”, also as to the time of it, formerly estimated as 5.30pm, now 7.15pm. He claimed in the witness box to have started his repairs after work, but the evidence of his employer, Mrs Haynes, was that he did not attend his employment after Friday 2 July 1999, being recorded as absent sick for the whole of the week including the fateful day. It is a matter of reasonable inference that the plaintiff provided the information contained in Exhibit 12, his solicitor’s letter of 18 August 1999 (which appears to fit in after earlier correspondence between the firm and the addressee, Delaneys, who were acting at that time for the defendant). (The Court has seen no earlier correspondence).
The letter states:
“Thank you for your letter dated 11 August 1999.
Our client was injured whilst in the process of cleaning the premises he and his girlfriend were renting from your client prior to vacating it.
As he was cleaning a wardrobe, a large clear pane of glass (which was apparently held flush against the wardrobe wall by force of suction) fell on our client’s head. The pane broke, a piece of it sliced into our client’s nose, almost severing it from his face.
Our client instructs that the pane of glass constituted a danger about which your client knew, or ought to have known, and that your client failed to warn our client of the presence of the glass, or the danger it constituted, or to have it removed from the premises, or to have stored in a safe manner, and failing to provide adequate lighting by which the presence of the glass might have been detected, prior to letting the premises to our client and his girlfriend.
As a result of the incident, our client suffered severe injury to his nose, requiring some 25 stitches to reattach it to his face. Further, our client may have ongoing problems in the future arising from his injury. Further, our client suffered, and continues to suffer economic loss as a result of the incident.
Accordingly, our client has instructed us to investigate a claim for damages against your client.
Our client also has some matters he would like to clarify with the Rental Bond Authority regarding his bond monies, and cleaning expenses which he paid to your client. However, our client has been unable to obtain details about these matters from the Authority. Please advise what name your client lodged the bond under, and the rental bond number.
We look forward to hearing from you as soon as possible.”
There was no evidence as to the physical possibility of the pane of glass (which the weight of evidence suggests was 3ft long, 10” or 12” wide and about ¼” thick (so as to be suitable for use as a table top or shelf, for example)) adhering to the wardrobe wall, the nature of whose surface was never clarified. The Court has no idea whether it was a possibility: I confess to entertaining serious doubts.
[10] The plaintiff was given the opportunity to comment on his and others’ failure to see the glass at two points, the first (p 15 of the transcript) when, according to him, clothing of previous occupants was removed from the wardrobe:
“Well, you didn’t expect to come into a unit for which you were paying a substantial amount of money and have it full of other peoples’ things, did you?-- No, I didn’t.
So you could have bundled them up and given them to Mr Collins if he didn’t come and get them?-- No, that’s not right at all because I asked Mr Collins to do that himself.
I see. He said that you couldn’t touch them?-- No, he never said that at all.
I see. Now, you and your girlfriend wouldn’t like other peoples’ clothes in your cupboard, would you?-- No.
So why would you leave them in the cupboard?-- They were all packed up. My uncle came there and packed them up and put them in a bag.
They were all put in a bag?-- Yes.
So someone came along and packed them up and put them in a bag?-- Yep.
But apparently didn’t see this glass?-- That’s correct.
A piece of glass three foot high and ten inches wide?-- Yep.
And you don’t know which way it was – whether it was lying, as it were – whether the sheet of glass was lying sideways in the cupboard, or lying at the back of the cupboard?-- I would have seen it.
You would have seen it?-- If it had been on an angle I would have.
Yes. So you’re saying you don’t know where it was exactly in the cupboard?-- I know it was on the right-hand side because it struck – it come from the right-hand side because I seen it on the view – from when I turned around, on a view I seen it.”
- and immediately prior to “the incident” at p 17:
MR THOMPSON: So you took the clothes out of the cupboard but didn't notice a three-foot sheet - three foot - sorry, a piece of quarter of an inch glass three foot long by about ten
inches wide?-- That's correct.
Can you account for that, Mr Ross?-- What do you mean by that?
Well, can you explain why you didn't see it?-- It was translucent. It was see-through. The glass is see-through so once it's on a colour, it naturally forms the colour of what's
behind it.
I see?-- So just to me I presumed it looked like the wall.
(I note the plaintiff’s statement at p 14 l 29 that the glass “must have been stuck up against the wall or something”).
[11] There is a most troubling amount of confusion and inconsistency about the plaintiff’s case. It is unfortunate, from the point of view of its being persuasive, that his partner, Ms Di-Gioacchino (their relationship came to an end in November 2001 after four years) or their lodger, Mr Simon Brown, although they saw his badly cut nose and got him quickly to the Gold Coast Hospital, gave no useful evidence corroborating any version of the plaintiff’s as to what he was up to when “the incident” occurred.
[12] Delaneys responded to the letter set out above by their own letter of 13 September 1999 (Exhibit 9):
“We refer to your letter of 18th August, 1999.
We have now received instructions from our client with respect to this matter.
Our client has been the registered proprietor of the above property for quite a number of years and it is a complete surprise and basically utterly unbelievable that a large clear pane of glass to use your words was held flush against the wall by force of suction existed in the first place, let alone fell on your client’s head. It was quite apparent to our client who resides next door, that your client did have a violent nature and was to the knowledge of our client continually involved in domestic violence with his partner and other acts of violence with other persons.
As far as our client is aware, the only glass that could be found in the above premises is the windows. In fact, our client did see and speak to your client soon after the 7th of July, 1999 and it was apparent to our client that Mr Charter’s had suffered some facial injuries. At no time did Mr Charter’s state that the injuries were caused by a piece of existing, unseen glass within the above premises.
As a result, our client seriously doubts the validity of your client’s claim.
If in fact, your client’s allegations are true, our client will require the glass that caused the alleged incident to be inspected and tested for evidence that the glass did in fact cause the injury to your client. It seems as though its your client’s intention to commence proceedings in this matter and as such, we do require your undertaking that the glass be preserved in it’s current state in your offices and that such glass is made available for inspection by our client and relevant experts when requested. If we do not received your undertaking, we will have no other option but to apply for an Order in accordance with Rule 250 and 254 of the Uniform Civil Procedure Rules as clearly, there would be biological evidence on the glass from the alleged incident.
Please note, our client does intend to make an application for security costs if it becomes apparent that either the glass does not exist, or there is no biological evidence on the glass connecting the alleged incident with your client.”
(Note: the plaintiff now goes by his mother’s surname of Ross)
Delaney’s letter set the tone of the parties’ dispute, which has persisted: for example, attempts to depict the plaintiff as “violent”, verbally if not physically, persisted through the trial. What is said regarding preservation of the glass was cheeky and inappropriate, given that the item had been disposed of into a wheelie bin. This the defendant knew, because he was responsible for it.
[13] As to contact between the parties after “the incident”, the plaintiff’s evidence-in-chief contains the following:
“Did you have any conversation with Mr Collins about this?-- The next day I did.
Where was that conversation?-- Out the front of the unit.
What did you say to him?-- Des said to me, ‘What was the noise that was going on last night?’ and I replied to Des that I had – a sheet of glass had fallen out of the cupboard and had severed my nose.
…
Did you or Mr Collins have anything else to say other than that?-- No.
What happened to the piece of glass?-- Des said I would grab it now and get rid of it now.
Is that what he did?-- He put it towards the bin, picked it up and put it out beside my bin.”
The cross-examination at p 30 was:
“You had a conversation with him shortly before you left and you said, ‘I ran into a bit of glass last night and nearly lost my nose.’?-- That’s wrong.
Now, at that time you had been drinking when you said that?-- No, that’s wrong as well.
HIS HONOUR: Well----?-- I just come out-----
Mr Thompson is suggesting you had been drinking when you were speaking to Des?-- I wasn’t, no.
MR THOMPSON: Mr Collins. Then at that stage you had some – you had a laceration on your nose?-- That’s correct.
And some stitches?-- That’s correct.
Okay. The next morning at about half past 7 you had a conversation just about the time that Mr Collins was going to work, he was hopping into his car and you called out to him?-- That’s incorrect; that’s wrong.
And so he went to the door of your flat?-- That’s correct.
You do recall him coming to the door of your flat around this time?-- Yes.
You went back inside the unit and he was in the courtyard?-- That’s right, he was at the front in the courtyard, yes.
And you went into the loungeroom within his sight and produced a piece of glass which I have described as 2 and a half to 3 foot high, you said a metre, didn’t you?-- It was a metre high.
10 inches wide and quarter inch thick unbroken plate glass?-- It was broken in half.
Okay. Only two bits?-- Yeah, complete one, straight in half.
I see. He said – sorry – you said to Mr Collins, ‘Here’s the bit of glass.’?-- That’s not right at all.
And Mr Collins said, ‘Well, where did you get that from?’ Do you recall that?-- No, that’s completely wrong; no.
And you responded, ‘I found it.’?-- That’s – no.
And Mr Collins said, ‘Well, what do you want me to do about it?’ And you said, ‘Get rid of it.’?-- Yeah – no.
Mr Collins said, ‘Okay. Give it to me. I’ll get rid of it.’?-- I remember him saying the last bit, ‘give it to me now and I’ll get rid of it.’
And Mr Collins took it out, I am not sure whether you saw this or not, and put it in the rubbish bin?-- Stuck it beside the wheeley bin, recycling side.”
For what it’s worth, the defendant’s version at p 81 was:
“What time was this?-- Approximately half past 7 I leave every morning. I went to the courtyard and he just stood at the door with his girlfriend. I noticed a large laceration down his face and he just simply said to me, ‘I had an accident last night. I ran into some glass.’ Then that was all that was said. He wasn’t in a real fit, stable condition, he’d obviously been drinking or whatever, so I just then left and then the night I came home he asked me to come up to the flat, which I did, and I stayed in the courtyard. He went inside. He came out and produced this large piece of glass. I said to him, ‘Where did you get that?’-----
…
Okay. When did the next conversation occur with him?-- That evening when I came home from the office.
Yes?-- He called me up to the unit. I went to the courtyard. He went inside the unit. He came back out and produced a piece of glass at least 3 foot high by probably 12 inches wide. It was like plate glass, like, similar to this glass here in thickness.
I see. And was it in one piece or two pieces?-- One piece.
Did it have any regularities - irregularities?-- At one end of the glass it was like a jagged – like someone had got a saw and gone like that through the glass, otherwise it was perfectly square, but it had like a jagged end – jagged edge at one end like a piece had been broken off, that was jagged.
Did it have any blood on it?-- No, no.
Did he tell you what you were to do with this?-- I said to him, ‘Where did you find it?’ He said, ‘I found it.’ I said, ‘Well, what do you want me to do with it?’ He said, ‘Get rid of it.’ So I got the glass and I put it straight into one of the wheeley bins.”
The plaintiff and his witnesses, particularly his uncle Mr Louis Charles Ross, described large amounts of blood on the glass – if this was the case, it presumably represented the results of bleeding after the injury happened.
[14] There seems no particular need to resolve the stark conflicts in the evidence. Mr Pope, Counsel for the plaintiff, suggested strongly that the defendant’s evidence was unreliable, indeed untrue, because the defendant carries no applicable insurance and will have to meet any damages award on his own resources. The defendant’s evidence was most unimpressive. He seemed only too willing to say things he thought might be discreditable to the plaintiff; Exhibit 10 consists of receipts located overnight by Ms Di-Gioacchino which demonstrate incontrovertibly that she and the plaintiff paid a substantial bond of $600 (by instalments, the last of which, ironically, was paid as late as 24 June 1999). Where the defendant’s evidence was contested and not corroborated, I would not be inclined to accept it.
[15] However, if the evidence given by or for a defendant is unreliable, even dishonest, it does not follow that the plaintiff’s case must succeed. It is for the plaintiff to prove his case affirmatively to the Court’s satisfaction by sufficiently cogent evidence. All that the plaintiff has proved convincingly is the fact of the injury to his nose on the date in question. I will assume in his favour (although do not find) that the injury was caused by the glass the defendant disposed of. I am not persuaded that it happened in the wardrobe in the circumstances (any version of them) asserted by the plaintiff. Again, I will assume for purposes of argument, that the plaintiff was correct. Difficulties which seem to me insuperable still remain. The plaintiff’s case depends crucially upon the glass having been in the wardrobe at the commencement of the plaintiff’s tenancy. I am not satisfied that it was. Mrs Swinfield’s evidence, although owing much to her reliance on a “system” for cleaning units which, if it existed, was implemented only intermittently over a year or so before “the incident” and has continued in use for more than four years following it, is against the plaintiff’s contention, which necessarily depends on a presumption of “continuity” backwards from 7 July 1999. There were opportunities for the occupants or others to introduce to the unit or move around within it an item such as a sheet of glass. Mr Brown told the Court that he had taken to a laundry area, shared with the tenants of other units, a sheet of glass he found in his bedroom at some stage. I find it extremely difficult to accept that if the sheet of glass had been in the wardrobe where they planned to and did keep their own clothes, neither the plaintiff nor Ms Di-Gioacchino noticed it. They profess an interest in having that storage space clear and clean; they complain that it was not. In my opinion, common experience accords more with the line taken by Mr Thompson in his cross-examination of Ms Di-Gioacchino at p 45 ff:
“Now, when you first took possession of the unit you were given a key, I assume by Mr Collins; is that right?-- Yes.
Didn’t you say, ‘There’s all this stuff in here.’?-- Yes.
‘We’re not moving in until you get it out.’?-- Well, I didn’t say we weren’t moving in until you get it out because we needed somewhere to live.
Well, you certainly wouldn’t have wanted to hang your own clothing in a cupboard with other people’s old clothing?-- No, that’s right.
So what you’d do is move that stuff out of your wardrobe, isn’t that right?-- That’s correct, yes.
And I think it’s said that an uncle came and helped, Uncle Louis?-- And boxed up most of the stuff that was in the place.
I see. This is what’s said. I must say, I tell you, Miss Di-Gioacchino, that I’m putting to you a quite different story, but let’s assume the story is about Uncle Louis coming is right and Uncle Louis came – this is the first week or two of your residence there - and I think before you put your own clothing in there you would have taken all this stuff out; is that right?-- That’s right, yes.
Cleared the cupboards out. You would have been quite annoyed by this, I take it?-- All the stuff, yeah.
Moved it all out and put it somewhere so it wouldn’t interfere with your clothing which was clean, and you wouldn’t know what was in the other peoples’ clothing?-- Yes.
So the cupboard would have been empty then, wouldn’t it?-- That’s right.
Okay. So within a few weeks it’s all taken away and you put your own clothing in?-- Well, the articles were boxed up, yes, and we put our own clothing in.
Boxed up and moved away from the cupboard so - I suppose you had to clean the cupboard out, from what you’re saying?-- No, I can’t remember cleaning the cupboard out.
Didn’t clean it, but you had all this stuff in it?-- I can’t remember doing that, no.
It is logical you would have cleaned it out?-- I can’t remember doing it, no.
Well, just answer me. It’s logical, isn’t it?-- Well, yes, that’s logical.
Yes. Can’t think of a reason why you wouldn’t clean it out. You weren’t that slack, were you, Miss Di-Gioacchino?-- Maybe I was, maybe I was.
Just pulled a few things out, didn’t worry about how dirty it was inside?-- Our clothes get washed anyway.”
rather than with hers. It is difficult to imagine an ordinary person agreeing to take premises in the condition attributed to unit 2 by the plaintiff, his partner at the time and his uncle.
[16] The glass either was in the wardrobe at the commencement of the plaintiff’s tenancy or it was not. If it was not, no possible basis for the defendant’s being liable for any damage caused by it has been shown. The better view of the evidence, I think, is that it was not there. Even if it was there, there is no basis for attributing actual knowledge of that to the defendant. Given that his duty was to exercise reasonable care (he was nothing like a guarantor of the safety of the premises), the failure of the plaintiff and his partner, who presumably used the wardrobe on a daily basis, and had it empty both at the beginning and at the end of the tenancy immediately before “the incident” to notice it, suggests that the defendant might be forgiven for not noticing it. He asserted he had done his own inspection and found the wardrobe clear. Even if my reservations about his evidence lead to that assertion being disregarded, I do find that he effectively engaged Ms Swinfield to perform the same task. This, it seems to me, discharged his duty.
[17] Contributory negligence against the plaintiff was pleaded. If the plaintiff’s claim did succeed, in the circumstances, I would assess the responsibility for “the incident” as almost entirely the plaintiff’s.
[18] The plaintiff having failed to establish negligence or any other breach of duty against the defendant, the claim must be dismissed.
[19] The practice requires the Court to assess damages, against the possibility of the finding as to liability changing on appeal.
[20] The defendant’s agitation at having to pay damages personally will have been compounded by the document entitled “Plaintiff’s Submissions on Quantum” handed up by Mr Pope during his final address, seeking damages exceeding $150,000, in the face of the claim and statement of claim seeking $100,000 only. That factor would not preclude the plaintiff from recovering (or having assessed) proved damages in any amount within the Court’s monetary jurisdiction.
[21] Mr Pope conceded that the bulk of the claim for pain, suffering and loss of amenities related to depression which the plaintiff presently suffers, according to his general practitioner, Dr Mullett, who has prescribed medication, which he expects will have done its work within 12 months from now. The statement of claim does not mention depression or any variant of it as a complaint. Dr Mullett did not hear of it until more than 25 months after the accident, at a time when it may have been that the plaintiff’s relationship with his partner was coming to an end. The doctor seems to me to have accepted the plaintiff’s assertion to him that the injury was responsible, without looking into other causes. He made the point, which cannot be rejected out of hand, that the plaintiff’s depression may have brought on the relationship breakdown, rather than things being the other way around. However, Dr Mullett says that the dates of examinations relating to depression (against a background of his having been the plaintiff’s general practitioner from very soon after “the incident”) were 11.8.01, 4.6.02, 7.8.02, 16.8.02, 10.9.02, 6.12.02, 2.1.03, 3.2.03, 27.02.03, 30.4.03, 23.5.03, 1.7.03, 23.7.03, 12.8.03, 15.9.03, 4.10.03 and 23.1.04. There is not only a 25-month break after “the incident” before depression manifests itself; as to Dr Mullet’s “Diagnosis DSN-IV: 296-33 (Major Depression moderate severity)” which was unlikely to have been made at the outset, there is also a 10-month delay before relevant consultations become concentrated. One would expect that where a claim is made, as here, that a psychiatric complaint has rendered the plaintiff incapable of working for more than five and a half years, a psychiatrist would be brought in. Disregarding considerations of that kind, and accepting the diagnosis, I am not persuaded that it can be related to the accident.
[22] The plaintiff has no support from any medical quarter for the proposition that anything physical to do with his nose has prevented his working. He speaks of difficulties and discomfort in wearing for any longer than four hours the mask or masks he might need to use in his accustomed work of spray painting, with which he is likely to be associated with sanding. The medical evidence is to the effect that with a modest amount of persistence, the difficulty would be overcome.
[23] Dr Scamp is of the view, apparently contrary to the plaintiff’s, that the horseshoe-shaped scar surrounding the tip of his nose (which was not completely severed) is a good result (Dr Scamp was not the surgeon) and that no attempt at revision is called for. The plaintiff may be forgiven for harbouring heightened feelings of sensitivity which dispassionate observers consider are uncalled for. However, the scar does not appear unsightly. The plaintiff was in hospital for a short time only, once it was appreciated he had more than a simple nose bleed, and arrangements were made to have the laceration appropriately sutured. I accept that as anaesthesia and follow-up pain relief wore off, the plaintiff would have suffered considerable pain as well as a variety of unpleasant sensations (and other phenomena, such as swelling and redness).
[24] As well as Dr Scamp’s report and evidence, the Court has before it by consent a report of Dr Cronin, otolaryngologist, head and neck surgeon, who saw the plaintiff on 15 January 2003. This report says:
“Mr Ross attended the Gold Coast Hospital where his nasal laceration was sutured. He now claims that he is unable to wear a mask in his occupation as a spray painter. He says his nose throbs in the winter and after a small amount of alcohol goes very red. He feels that on some days he can smell normally and on other days he can’t, and in particular he is unable to stand the smell of paints and solvents. Allegedly he also gets teased greatly by his friends about the shape, size and colour of his nose.
He certainly seemed mildly depressed today. There is a slight bulbosity to the tip of his nose where there is a neat scar extending from the right lobule over the dorsum almost to the left naso-labial angle. There are a number of depigmented areas on his forehead. Internally his nasal airway is adequate. He has a deviated nasal septum to the left-hand side caused by a large left concha bullosa. I tested him to numerous odours all of which he was able to identify readily and without producing any discomfort. He was not tested to paints or lacquers.
In summary. He has sustained a laceration to his nose which has healed well with only a slight deformity. There is no evidence of any injury to his olfactory organ nor should there have been considering the site of injury. The alleged vascularity of the sutured tip should return to normal with time. I would regard his prognosis as excellent and would not consider necessary any future medical or cosmetic treatment.”
[25] From the hospital, the Court has no report, but it does have notes which indicate the presenting problem as an injury to the nose caused by sheet glass: “Moving home [house?], sheet glass fell on face.” The Emergency Department Patient Record indicates: “Moving house, packing tonight – glass panel fell onto face (causing) laceration to nose. Not knocked out.” A sketch indicates what was found on examination, described as: “Extensive laceration around tip of nose, not full thickness – tip well perfused.” The notes record treatment by application of an ice pack, administration of drugs and insertion of prolene sutures, of which I think the plaintiff said there were something just over 20. No glass was found, nor any evidence of a fracture.
[26] I accept that the injury would be extremely alarming to the plaintiff, that there would have been a good deal of pain once the medication supplied for it wore off, that there would be acute embarrassment felt by the plaintiff in many situations. Without requiring expert evidence, I would accept the foregoing to be accompanied by “depression” in a lay person’s understanding, reluctance to get on with ordinary activities of life, particularly those involving going out, e.g. shopping. On the other hand, I would not accept that, after the first few days, when it seems reasonable that he availed himself of his partner’s assistance in attending to dressings, administration of drops, and perhaps some cooking and the like, the plaintiff was under any incapacity from the point of view of looking after himself, so as to merit an award of Griffiths v Kerkemeyer damages. A slightly extended period should be allowed in respect of transportation, as the plaintiff’s medication had made it inadvisable for him to be driving.
[27] I am not persuaded that the plaintiff was unable to work, except during the first couple of months. On the evidence, assuming he applied himself to identifying the most suitable masks and establishing tolerance, I do not think that particular aspect limited his working ability for longer than another few months. I am not prepared to assess the plaintiff’s capacity to work on the basis that it is confined to spray painting, sanding, and the like. There is no reason to think he lacked the fitness to work in other ways.
[28] His working history is sporadic. He did not complete a cabinet-making apprenticeship begun after leaving school. He describes himself as a “casual” worker, which I take to apply by choice. This is the explanation for his earnings, so far as made known to the Court, being rather modest. There is information for only two years of income prior to the injury. In the year to June 30 1998, taxable income was originally assessed as $15,774.00, then re-assessed at $17,219.00. The increase appears to have been due to the discovery of an additional $1,445.00 wages and $1,286.00 in government benefits. These items were disclosed to the authorities by the plaintiff’s tax agent. In my opinion, the plaintiff’s experience in the year to 30 June 1999 is a more reliable guide to economic loss in the circumstances. It is unfortunate the Court has nothing reliable about the years before 1998. In the 12 months leading up to “the incident” which were not suggested to be unusual, income from Mr and Mrs Haynes’ business was $2,744.00, income from another employer, $2,386.00. The plaintiff’s principal income was from government benefits, $6,246.00. Taxable income was assessed as $11,654.00. It seems the plaintiff’s demonstrated earning capacity, based on recent experience, was barely $100.00 per week, rather than the $300.00 per week which was the basis of calculations presented to the Court.
[29] Since the accident the plaintiff has hardly worked at all, blaming difficulties with tolerating chemicals encountered in sporadic attendances at work, and “depression”. (I see considerable force in the submission made by Mr Thompson, for the defendant, that if depression were truly regarded as having kept the plaintiff out of work for four and a half years and more, some more serious steps would have been taken to establish that by specialist evidence.) It seems the plaintiff continues to be supported by sickness benefit or some other government benefit. I do not regard this as establishing his lack of fitness to work.
[30] In the circumstances, I assess general damages for pain, suffering and loss of amenities in the sum of $10,000.00, most of which is attributable to the past, say one-third of the $25,000.00 the plaintiff’s submission attributed to the past, so as to bear interest at 2% per annum, aggregating $800.00. As for past economic loss, I allow the global sum of $2,000.00, which includes interest at the claimed rate of 5% and acknowledgement of the loss of employer-funded superannuation. I think there is no future economic loss. As for Griffiths v Kerkemeyer damages, the agreed rate being $14.00 per hour, I allow $700.00 which includes interest at the claimed rate of 9%, which I am told is established by the case of Grincelis v House. I allow a further $1,000.00 to cover past out-of-pocket expenses, and interest thereon, also the claim for “future medical expenses’. In respect of all of these matters, the Court has only unsatisfactory general estimates by the plaintiff. The total damages assessed are $14,500.00. However, for reasons indicated, the claim should be dismissed, and presumably with costs to be assessed on the standard basis.
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