Scott v Wanklyn
[2016] VSC 382
•8 July 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WANGARATTA
COMMON LAW DIVISION
S CI 2015 04267
| ANTHONY ROY SCOTT | Plaintiff |
| v | |
| ROSS HOWARD WANKLYN | Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Wangaratta |
DATE OF HEARING: | 26, 27 & 31 May 2016 |
DATE OF JUDGMENT: | 8 July 2016 |
CASE MAY BE CITED AS: | Scott v Wanklyn |
MEDIUM NEUTRAL CITATION: | [2016] VSC 382 |
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NEGLIGENCE – Personal injury – Occupier’s liability pursuant to the Wrongs Act 1958 (Vic) s 14B(3) – Plaintiff stepped into a trench dug on the defendant’s property and fell – Defendant ran business part time from premises – Defendant in breach of duty to take care to avoid injury to plaintiff by reason of the state of the premises – Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Erickson v Bagley [2015] VSCA 220 cited.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti, QC with Mr M Seelig | Garden & Green |
| For the Defendant | Mr D McWilliams | DLA Piper |
HIS HONOUR:
Introduction
On 24 December 2014 the plaintiff (Mr Scott), while attending on property owned and occupied by the defendant (Mr Wanklyn), fell and suffered injuries, including a subcapital fracture of the left femur. The plaintiff commenced this proceeding on 17 August 2015, alleging that there was negligence, or breach of the duty in s 14B(3) of the Wrongs Act 1958 (the Wrongs Act), by the defendant which was a cause of his injuries.
The fall occurred at about noon on 24 December. Mr Scott had been driven to Mr Wanklyn’s property by his daughter, Carol Tompkins (Mrs Tompkins), to collect a wooden chair which Mr Wanklyn was repairing for him. Mr Wanklyn was not present at the premises when Mr Scott fell, but returned a short time later.
After alighting from Mrs Tompkins’ car, Mr Scott walked across a gravel driveway area intending to step into a shed where he understood the chair to be. As he stepped forward he placed his left foot on the driveway close to the concrete floor of the shed. Mr Scott alleges that his foot went into a trench which was about eight or nine inches wide and about six inches deep, as a consequence of which he lost his balance, fell backwards and suffered the injury.
There was no dispute between the parties as to the existence of the trench. However, there was a critical dispute as to the size of the trench. Mr Wanklyn said that he had dug the trench that morning, and that it was about 75 millimetres by 75 millimetres, or three inches by three inches, in dimension.
The defendant placed reliance on a number of factual circumstances, including the nature of the premises, the frequency of visitors at the premises, the size of the trench and the fact that its existence should have been obvious to a person walking across the driveway, to argue that there was no breach of the duty owed by the defendant to take any precautions to protect the plaintiff from falling and suffering injury as a consequence of the trench.
There was further dispute between the parties in relation to an allegation of contributory negligence advanced by the defendant, and as to the assessment of damages for non‑economic loss and for gratuitous attendant care services provided to the plaintiff as a consequence of his injuries.
Background
The plaintiff was born on 2 April 1926 and is now aged 90 years. He had been a dairy farmer by occupation. Initially he retired to Barham, and now lives in Swan Hill with his wife.
The plaintiff has three children, Carol, David and Jenny, nine grandchildren and eight great-grandchildren. His daughter Jenny had previously been married to Mr Wanklyn, but by the date of the plaintiff’s accident they had separated. Mr Scott and Mr Wanklyn still enjoyed a friendly relationship.
Mr Wanklyn has lived at 799 Murray Valley Highway, Tyntynder since about the year 2000. The property is located approximately 8 kilometres north of Swan Hill. Mr Wanklyn drew a plan of his property, which he identified and which was tendered as an exhibit.
Mr Wanklyn has worked principally as a plasterer for the last nine years. Prior to that he had been a cabinetmaker. Mr Wanklyn continued to do some work as a cabinetmaker, and performed that work in the shed located on his property. The sign at the front of his property advertising cabinetmaking services had been there for 16 years. The telephone number on the sign had been Mr Wanklyn’s house number, but he had since changed to a different provider and now has a different number.
A photograph of the shed was tendered as an exhibit. It shows that the opening to the left‑hand end of the shed is a carport, the floor surface of which is gravel, just the same as the yard. From the carport to the right, the floor of the rest of the shed is a concrete slab. There is one large sliding door at the front of the shed and an access door at the back. The concrete slab floor of the shed is above the level of the immediately adjacent gravel driveway by a height difference estimated by Mr Scott at four inches, and by Mr Wanklyn at two and a half inches.
About two months prior to his fall, Mr Scott had taken a chair out to Mr Wanklyn to be repaired. On that occasion Mr Wanklyn was in his yard. Mr Scott handed the chair to Mr Wanklyn in the middle of the yard. The chair was ‘all wonky’ and coming apart, and Mr Wanklyn needed to clean up the joints and re‑glue them. After Mr Scott delivered the chair, there was no further conversation between he and Mr Wanklyn in relation to it.
On 24 December 2014 Mr Scott went to Mr Wanklyn’s property to collect the chair. He was driven to Mr Wanklyn’s property by his daughter Mrs Tompkins. Also in the vehicle with them were two elderly relatives. Mr Scott had expected Mr Wanklyn to be at home though he had not contacted Mr Wanklyn before going to his property.
On the map of the property which he had drawn, Mr Wanklyn marked the direction north with an arrow, thus indicating the right‑hand boundary as being the northern boundary, the shed running north–south close to the western boundary, and the road adjoining the property running along the eastern boundary. Mrs Tompkins parked her car at the end of the drive and facing away from the road, at roughly a 45 degree angle to the shed, with the shed to the vehicle’s right, at a distance estimated by Mr Scott to be about 20 yards from the shed.
Mr Scott said he got out of the car and walked towards the door of the shed. He got practically right to the door. He was asked:
Q:What happened when you got practically right to the door?
A:I come unstuck with the drain and had a fall.
Q:What caused you to fall?
A:Well, there was a drain there. It was full up with leaves and I didn’t see it.
Q:Did you step in it?
A:Yes, that’s where I had the fall.
Mr Scott marked with an X on the photograph showing the shed the point where he said he fell, which was to the right‑hand end and up close to the door. The door was open on the day. He was intending to go into the shed to pick up the chair.
When he fell, he heard a crack and felt something happen inside him, and he knew that something was broken. His daughter tried to get him up, but could not do so. He asked her to call an ambulance.
The evidence going to liability was given by Mr Scott, Mr Wanklyn and by a witness who attended Mr Wanklyn’s property approximately two months after Mr Scott’s fall, Mr Heighway. Mr Heighway took a number of photographs on the occasion of his attendance at the property, which were tendered together as an exhibit. Although Mrs Tompkins was present at the time of her father’s fall, and witnessed him fall, her evidence did not bear upon the issue of liability. The factual issues of significance upon which there was dispute were:
(a) the size of the drain or trench;
(b) how easy it was to see the trench or perceive its presence; and
(c) the frequency and the purpose of attendance of visitors at the property.
Mr Scott’s evidence
Mr Scott described the trench as about eight inches or nine inches in width and about six inches in depth, flush up against the concrete. Ordinarily, as you were stepping onto the shed floor your foot would be some distance back from the shed. He said that on this day his left foot went into the ditch, and that is where he lost his balance. He fell backwards and to the left. It was put to the plaintiff that if you were walking forwards and lost your footing you were unlikely to go backwards and more likely to fall forwards, to which he answered, ‘Not in this case’. The plaintiff was asked:
Q:Could it have been the case that instead of stepping into the ditch, your foot trod on the edge of the concrete slab?
A:No.
Q:And that forced you backwards?
A:Foot went in the ditch.
Q:Were you looking where you were putting your feet at the time?
A:My word I was.
Q:So you were careful to look down to see where you were putting your feet?
A:Always.
Q:You always do that?
A:Always.
Q:And you weren’t looking ahead, is that right?
A:Not — no, no, I was looking down.
The plaintiff disagreed with the proposition that the trench was 70 millimetres wide and 70 millimetres deep, and said that it was as shown in photocopies of certain photos which he identified as having been taken by Mr Heighway two months after the incident.
In cross-examination the plaintiff said that when he stepped into the trench he lost balance and fell down, that he fell on his rear, away from the shed. He had not walked to the right‑hand end of the door in order to hold the side of the shed as he walked into the shed. Initially in cross-examination the plaintiff said that he fell backwards about a metre, but later agreed that he might have been as far back as six feet from the concrete floor of the shed. It was unclear what part of the plaintiff’s body might have been six feet from the floor of the shed, and whether he got to this position immediately when he fell or after an attempt had been made to help him up. In any event, it was clear on all the evidence that the plaintiff was relatively close to the shed after he fell, and nothing turned on whether the distance was one metre or six feet.
Mr Scott said that on the day of his fall the trench was full with leaves. He said that he did not take time after he fell to look at the trench, but could see when he had the fall and ‘I looked over and I could see what was going on.’ He disagreed that the trench was dug on Christmas Eve. He said it was not freshly dug, and had probably been there for a few weeks. Mr Scott agreed in cross‑examination that on the day he fell he did not pull the leaves in the trench aside to check the depth of the trench, and that he could not tell from observations made on that day how deep the trench was. He was taken to the defendant’s interrogatories and to histories given to the two medico‑legal specialists, and was then asked:
Q:Mr Scott, the first we heard of there being leaves in the trench on the day you were injured was when you gave your evidence yesterday, wasn’t it?
A:Yes.
In cross-examination the plaintiff said that he was not wearing glasses of any kind when he fell. He said he did not wear eye glasses. Initially the plaintiff said that he did not wear reading glasses, though later it became apparent that he did, on occasion, use reading glasses.
The plaintiff said that about two months after his accident he went back out to Mr Wanklyn’s place with ‘Chesty’ Heighway in order to take a photograph of the trench. On that occasion Chesty drove. He identified the copy of three photographs, described at [20] above, as photographs taken by Mr Heighway on that occasion. On the day he attended with Mr Heighway, they parked up alongside the ditch. On that occasion he got out of the car. He pointed Mr Heighway to where ‘I had the bust‑up’.
In cross-examination Mr Scott said that the concrete slab floor of the shed was about four inches high. He agreed that there was a step up into the shed, and that you had to be careful to ensure that you cleared that step. The only difference on the day of his accident was that the ditch had been dug out.
The plaintiff agreed that he might have told medico‑legal specialist Mr Ian Jones that he was stepping over a trench measuring some six to eight inches when he lost his balance falling backwards onto his backside. He said however that he did not think it was very important telling Mr Jones what happened, and I consider that little turns on the discrepancy between the history recorded by Mr Jones and the plaintiff’s evidence given during the trial.
Anthony Peter Heighway
Mr Heighway gave evidence that he was the best friend of one of the plaintiff’s daughters, Jenny Scott. He had known the plaintiff, Mr Scott, for about five years.
At some stage he was asked by Mr Scott to take him out to Mr Wanklyn’s premises to obtain some photographs. He could not recall when this occurred. He was pretty sure it was still summer at the time. It was after Mr Scott was discharged from hospital. Mr Scott’s solicitor had asked him to obtain some photographs. In relation to the request from Mr Scott he said:
Q: What did he ask you to take photos of?
A:The — where the shed door was and the — a ditch that was in front of the concrete.
Mr Heighway marked a photograph of the shed with an X indicating the area where Mr Scott had directed him to take photos. This was a point towards the right‑hand end of the shed door.
Mr Heighway identified a series of seven photographs taken by him, some of which he took back from the shed door and others up close, taken at different points along the shed door. There were two additional photographs taken by Mr Heighway which he identified as showing the entrance to Mr Wanklyn’s property. Mr Heighway described that he saw a trench in front of the concrete slab along the shed door. It lay alongside the concrete slab. He described its width as being a bit more than his hand span, agreed to be a distance of 6 to 8 inches. He said the trench was under a foot deep, perhaps 8 to 10 inches deep. There were a few leaves in the trench, which he thought was normal from having been blown around. From his memory he thought the trench was the full length of the shed. Mr Heighway identified the trench in the photographs as being in the area below the door in the shadow and just below the shadow, where one could see leaves and other detritus in the photos. He was asked where the trench was in the photos and he said, ‘Around the leaf matter’.
When it was put to Mr Heighway that the trench could have been 3 inches deep, he disagreed and said it was more than that. He said he had been a farmer for about 25 years and then a gardener and that he ‘ …could gauge reasonably depths and lengths, give or take. No‑one’s exact.’ Mr Heighway was asked to look at the photographs and it was put to him that the photographs did not depict the width or depth of the trench as he had described it. Mr Heighway maintained his evidence as to the dimensions of the trench. I understood his evidence to be that whilst the photographs may not have been a clear depiction of the trench, he could recall it and its dimensions.
It was put to Mr Heighway that Mr Wanklyn had ‘reinstated’ the trench a few days after Mr Scott’s fall, to which Mr Heighway replied if there was nothing there he would not have taken the photos, and would have said to Mr Scott ‘You’re being silly, there’s nothing there.’ He continued: ‘But there was something there so I took the photos for him’.
Ross Howard Wanklyn
Mr Wanklyn gave evidence that he obtained cabinetmaking work through word of mouth and friends. Usually people just drive in when he is at home or at night. He performs the cabinetmaking work in the shed. He said he usually gets two or three enquiries for cabinetmaking work a year. He said he maintained his property ‘probably 100 per cent’, and that it was always neat and tidy. At the time of the incident the only other cabinetmaking work that he was doing, apart from repairing the chair for Mr Scott, was on an old Bondwood caravan which he was ‘restoring for a bloke’.
Around Christmas Eve 2014, the only work that needed to be done on the shed related to the two rollers on the door. Every time Mr Wanklyn opened the shed door it made a grating sound in the track and he said ‘… the rollers were getting, yeah, tired.’ It made it really hard to open the door. On Christmas Eve he pushed the door open and it was hard and he decided it had to be fixed. For that purpose he dug a ‘little trench’ along the edge of the concrete so that he could drop the door down. The tube that ran around the door was 2 inches by 2 inches, and he had to drop it down at least 50 millimetres to 75 millimetres to get the rollers out, which he did. He used a shovel to dig the trench, which was about 6 metres long and about 50 millimetres wide or a little bit past that. The depth was about the same, just ‘… enough room, 50 [millimetres], to go down, so I could get that bolt out of the top cord.’
Mr Wanklyn identified five photographs taken by him in 2015. Mr Wanklyn said, by reference to the photographs, that the concrete floor of the shed was about 2½ inches above the level of the gravel, and that two of the photographs show about the depth of the trench that he had dug along the edge of the concrete on Christmas Eve 2014 in order to drop the door down.
Mr Wanklyn’s evidence was that, after he dug the trench, he closed the door and locked it up so that it would not fall over when he took the rollers out. He then undid the nuts and dropped the door down to get the rollers out. All this was done on Christmas Eve. He worked on the rollers from inside the shed. Once the door was dropped down, he slid the rollers to the end of the track and removed them. He replaced the rollers with new ones that he happened to have in the shed, and then he opened the shed door. He wanted to wash the old rollers because they got a lot of dust storms and he thought perhaps it was the dust that was affecting their function. He washed them with petrol.
In examination‑in‑chief, he said that he went into town that day to get the petrol and brought it home in a container. When he got back he saw a silvery car in the driveway and three or four people. One of them was Mr Scott, who was sitting on the ground in front of the shed, about six feet away from the shed floor. The car was facing towards the highway, going out of his place. Prior to leaving, there had been no indication that anyone was going to attend the premises. Apart from Mr Scott, the other people there were his oldest daughter, Mrs Tompkins, and two elderly ladies. When he first arrived he did not have any conversation, but saw that Mrs Tompkins was on the phone. He then spoke to Mr Scott and the two ladies and was told that Mr Scott had fallen over. He tried to help a little bit by getting Mr Scott a glass of water. After about half an hour an ambulance arrived to collect Mr Scott.
Mr Wanklyn was asked how visible the trench was after he had dug it and when he went to get the petrol. He said, ‘The size of the trench, as I said, was about 75 [millimetres] by 75, which is about 3 inches by 3 inches, and it was really visible until you stepped up to it closely.’ He said it was not true that the trench was obscured by leaves. In the next couple of days, it might have been Boxing Day, Mr Wanklyn filled the trench back in as best he could. He then just let it sink a bit because it was sandy ground, and then put more gravel back on it ‘as it just needed it’.
Mr Wanklyn brought to court a small section of square 50 millimetre, or 2 inch, steel tubing. He said that was the type of tubing which ran right around the door, and that the iron on the door was set back in flush to the front of that tubing. Once he released the nuts at the top of the door, the trench was just wide enough to allow the door frame to go down, and roughly the same depth.
In examination‑in‑chief, Mr Wanklyn was shown two of the photographs taken by Mr Heighway, described above, which showed the base of the door with the trench apparently visible. He said he recognised the first photo, which was an extreme close-up, as showing an area just below the door. In that photo you cannot tell whether the door is open or shut, but he could tell that it was taken at the left‑hand end of the door, because he could see in the photo where the concrete footings for the post at that end of the door had ‘over spewed when they’ve poured the concrete.’ He said that the second photograph, which was taken from a little further away, depicted an area of the doorway to the right of the first. At the right‑hand end of the second photograph you could see the concrete footings for the post at the right‑hand end of the doorway.
In a series of questions in evidence‑in‑chief Mr Wanklyn was asked whether those two photographs showed the trench:
Q:If you look at [the second photograph], can you tell his Honour what is shown in that photograph compared to what was there on the day Mr Scott fell? Is it the same? Is it different?
A:No, it’s the same. Yep.
Q:As far as the existence of the trench is concerned, can you see it there in that photo?
A:Yep.
Q:As far as its location is concerned, where is it in the photograph that you can see?
A:To the right‑hand side on that side your Honour.
Q:So to the right‑hand end of [the second photograph]?
A:Yeah. Yep.
Q:Pointing to an area which you say depicts the trench?
A:That’s right, yeah.
Q:Could you also look at [the first photograph]? Do you see the trench depicted in that photo at all?
A:Yep.
Q:Could you point it up and show us where you see it there?
A:To the right‑hand side just there.
Q:Are you pointing to the right‑hand side or the centre?
A:Well it starts from there and goes back that way.
Q:Right. So it’s pretty much got the whole length of that photograph?
A:That’s right, yeah.
At this point Mr Wanklyn confirmed again that after finishing the work on the door he had filled in the trench. He was then asked:
Q:What is depicted in those photographs, is that showing the trench filled in or the trench filled open?
A:No. No, sir. No. It wasn’t, your Honour. No.
Q:I’m sorry, what?
A:It wasn’t filled in then.
Q:In those photographs?
A:Yeah.
Q:When did you fill it in?
A:Within the next two days.
Mr Wanklyn was then told of the evidence that the photographs were taken about two months after Mr Scott’s fall, and he confirmed ‘It wasn’t filled in then.’
Later during his evidence I asked Mr Wanklyn to again look at the two photographs. Initially he confirmed that they showed the trench as it appeared on 24 December 2014. Looking through the other photographs he said some showed ‘when I had backfilled it a little bit, just to get rid of the dip there’. He confirmed that the photographs were not taken on 24 December, and that they were taken after he had filled the trench in. He said, ‘Yeah, they still show a bit, because I just backfilled the trench a little bit, just to get rid of that depth, and then I did it later on just with more gravel and — yeah, just has it consolidated a bit.’
Q:So after you filled it in the first time, did it sink or?
A:Not a lot, because we haven’t had any rain since then.
He did not disagree that the photographs were taken two months after Mr Scott’s fall, and said, ‘[b]ut I know that I backfilled that trench, yeah, before the end of that year, just to let it consolidate a bit, and then I just kept topping it up’.
Later in cross-examination Mr Wanklyn was asked:
Q:That means the trench, on 24 December, would have been bigger than what it was when those photos were taken?
A:No.
Q:How do you say no to that question? If you had backfilled it to some extent, after 24 December, before the photos were taken, it follows, as a matter of logic, that the trench must have been bigger, to some extent, on 24 December?
A:No, it wasn’t. As I said, the trench was only 3 inches by a little bit deeper and I backfilled that and then topped it up later.
Q:If you backfilled it to some extent, it must follow, surely, that the trench was bigger on 24 December than as at the date the photos were taken?
A:All that shows is that the amount of dirt, sand that’s been spread through there might be that wide with a shovel.
And later he added:
There’s three — all these pictures just show there’s no trench there, your Honour. If there was a trench there, it’d be a lot deeper and — what I don’t — like that’s — I didn’t fill the trench back right in ‘til it’s like touching the door, like it’s something that I did over a period of, you know, time where I just put a bit more sand in there and I eventually put gravel on top of it to level it out.
And later still Mr Wanklyn said that the two photographs did not actually show the trench, but simply where the trench had been. He said the photographs show leaves lying on top where the trench was, and that in the photos ‘there’s no trench there’.
In cross‑examination, Mr Wanklyn made some limited concessions in relation to the visibility of the trench and precautions he could possibly have taken in relation to the trench.
In relation to the cabinet making business, Mr Wanklyn said that:
(a) he probably did two or three cabinet making jobs a year and that he performed the cabinet making in his shed. Later he said he did one to two jobs and had two to three enquiries per year;
(b) he does jobs for cash every now and then;
(c) the customer having work done on the caravan comes out to the property two or three times a year;
(d) anyone who wants work done would have to come into his premises, or come back later when he was home; and
(e) when people bring small cash jobs for him to do on most occasions they deliver whatever is to be repaired to his shed.
In examination in chief Mr Wanklyn said that on 24 December 2014 he left the property to go and get petrol, that it took eight minutes into town and eight minutes back, so he was probably away from the property for 15 to 20 minutes. In cross examination Mr Wanklyn accepted that he had also gone to the hardware store which he identified as Bunnings. He said he had a look, made no purchases, and would have been in the store for about five minutes. I consider it unlikely that going to the hardware store only added five minutes to the length of time that Mr Wanklyn was away from his property on that day.
Analysis
I shall first say something as to my assessment of each witness, and as to the reliability of the evidence given by that witness. On some issues Mr Scott’s evidence was not entirely reliable. This mainly related to his level of activity before and after the accident, and to the impact of the injuries caused by the accident on him. There was also some inconsistency in his estimate of the time that it took before he was loaded into the ambulance after he suffered the fall: his evidence, to which he adhered when challenged in cross-examination, was that he was loaded into the ambulance at 3.30pm, which was contrary to Ms Tompkins’ evidence, and to the ambulance record, that she rang emergency services shortly after he fell and they arrived within about ten minutes. On occasion the inaccurate evidence initially given — for instance, that Mr Scott was playing golf weekly up to the date of the accident — seemed to favour his case. However, I have also concluded that Mr Scott understated the impact of the hip injury to the potential detriment of his case. In the end, I have concluded that the explanation for some lack of reliability in relation to certain aspects of his evidence related to Mr Scott’s stoic nature, the rather rigid way in which he answered some questions, the fact that he seemed a fish out of water in the process of giving evidence, his age and health issues, and the fatigue he is likely to have suffered attending court and giving evidence. Mr Scott was in significant pain after he fell and that probably affected his perception of the time which passed before he was loaded into the ambulance. He was consistent and clear as to the manner in which he fell, and as to the cause of that fall. The inconsistencies in his evidence, in my view, do not impugn Mr Scott’s credit, and I reject the submission made by counsel for the plaintiff, in closing, that his evidence was less than candid.
I reached a different conclusion in relation to Mr Wanklyn’s evidence. The inconsistent evidence Mr Wanklyn gave in relation to the filling in of the trench and what was seen in the photographs taken by Mr Heighway, the concessions he made in relation to what he previously said had occurred on the day, his evidence in respect of his attendance at a hardware store on the day and his apparent keenness to understate the period he was absent from the property at the time of Mr Scott’s fall, and his apparent keenness to understate the frequency of attendance of customers and potential customers at his premises and in particular at the shed, in combination, mean that I have difficulty placing reliance upon the evidence of Mr Wanklyn in relation to critical factual issues. Mr Wanklyn’s assertion that he maintained his property ‘100 per cent’ and that he filled the trench in on Boxing Day or the day after cannot be accepted, having regard to Mr Heighway’s photographs, the contrast between those photographs and the photographs that Mr Wanklyn himself took some time later, and the evidence of Mr Scott and Mr Heighway. This caused me to doubt Mr Wanklyn’s evidence that he only dug the trench on the morning of 24 December.
Mr Heighway was a straightforward witness, who gave sensible and reliable evidence. In particular, I note that Mr Heighway said that the purpose of his attendance at Mr Wanklyn’s premises was to take photographs of the trench, and that had there been nothing to see he would have said so to Mr Scott. As it was, he observed the trench located along the front of the shed next to the concrete floor, and he described its dimensions clearly.
I accept Mr Scott’s evidence as to the manner of his fall — that is, stepping forward with his left foot close to the concrete floor of the shed, intending to step up onto the floor when his left foot went into the trench, causing him to lose balance and fall backwards. Apart from the history recorded in Mr Jones’ medico-legal report, Mr Scott was consistent in his description of the manner of his fall. I accept Mr Scott’s explanation that he did not think it was very important to tell Mr Jones what had happened.
The evidence of Mr Heighway, and the various photos in evidence, further assist me in concluding that I should accept the evidence of Mr Scott as to the manner in which he fell and the cause of his fall. First, Mr Heighway said the purpose of his attendance at Mr Wanklyn’s premises was to take photographs of the trench which Mr Scott described as the cause of his fall. Second, on Mr Heighway’s observation the trench was there and was, as he described, 6 to 8 inches wide and 8 to 10 inches deep. Third, it seems, at least by inference, that Mr Heighway considered the trench he observed to be a sufficient explanation for Mr Scott coming to grief. Fourth, contrary to the evidence of Mr Wanklyn, the photographs taken by Mr Heighway some time after the incident clearly show a significant vertical gap between the bottom of the door and the earth or gravel immediately adjacent to the shed floor. The square tubing at the base of the shed door is 50 millimetres, or 2 inches, in dimension. The two‑dimensional nature of the photographs does make it difficult to appreciate all of the features existing in the area at the time. However, it is clear that the distance between the bottom of the shed door and the ground is something like three times the width of the metal tubing — that is, approximately 150 millimetres, or 6 inches. Of course, the photograph was taken more than a month after Mr Scott’s fall and sometime after Mr Wanklyn had made some attempt to fill in the trench. It is probable that on the day of Mr Scott’s fall the earth was excavated to some greater depth than is shown in Mr Heighway’s photographs. It is interesting to contrast those photographs with the second of the photographs taken by Mr Wanklyn, showing the shed floor, the door and the gravel driveway. In that photograph there appears to be very little vertical distance between the bottom of the shed door and the gravel driveway. Clearly, the gravel has been reinstated right to the edge of the concrete floor of the shed by the time the photograph was taken.
I conclude that on the day of Mr Scott’s accident there was, running along the length of the door to the shed, a trench dug by Mr Wanklyn in dimensions consistent with the evidence of Mr Scott and Mr Heighway. I conclude that the trench was sufficient in size for Mr Scott’s left foot to go into it as he attempted to step from the gravel driveway onto the shed floor and that, as a consequence, Mr Scott lost his balance, fell and suffered injury.
Mr Scott gave evidence that as he was walking to step into the shed, he was watching where he was going. I accept that this was so. Mr Wanklyn said that he dug the trench that morning. Mr Scott said that from his observation on the day the trench was not dug that day. On the evidence, I am unable to conclude when the trench was dug. Mr Scott said there were leaves in the trench, and that this was the reason that he did not see it before stepping into it.
There are a number of reasons why the trench might not have been obvious to Mr Scott as he attempted to step into the shed. First, as can be clearly seen from the photographs, there is the potential for shadowing. The accident happened at about noon. The sun directly overhead created the effect of bright sunlight outside and shadow inside the shed, possibly with an additional line of shadow around the area of the trench. Second, the sand and gravel in the area where the trench was dug is unlikely to have led to a clearly defined trench because of the different colours and shades of material and the likely lack of a sharp edge on a trench. Third, a person such as Mr Scott, familiar with the driveway and the shed, would hardly be expecting the existence of a trench hard up against and running along the concrete floor at the door of the shed. Fourth, whenever the trench was dug, I accept the likelihood that there was some organic material or detritus in the area which would have further served to disguise the existence of the trench.
The defendant, as occupier of the premises, owed a duty to the plaintiff in accordance with s 14B(3) of the Wrongs Act to take such care as in all the circumstances was reasonable to see that the plaintiff would not be injured by reason of the state of the premises, or of things done or omitted to be done in relation to the state of the premises. Guidance in relation to breach of that duty is contained in s 14B(4), which provides:
Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
(fa)whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb)whether the person entering the premises is engaged in an illegal activity;
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
The question of breach by the defendant of the duty of care is to be determined in accordance with s 48 of the Wrongs Act, which reads as follows:
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
(3)For the purposes of subsection (1)(b)—
(a)insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b)risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.
The starting point for the s 48 analysis is the accurate identification of the risk of harm.[1] In written submissions, counsel for the defendant identified the risk as being ‘… that an entrant onto the property would step into, or lose their footing in a depression in the driveway located immediately adjacent to the slab which was the floor of the shed, fall and suffer injury.’ The plaintiff did not proffer an alternative risk of harm. In my view, the risk of harm is properly identified as the risk that an entrant onto the property would step into, or lose their footing in a trench located across the doorway of the shed immediately next to the slab which was the floor of the shed, fall and suffer injury.
[1]Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Erickson v Bagley [2015] VSCA 220, [33] (‘Erickson’).
Questions as to the content of the duty and breach are questions of fact to be determined on the basis of all of the relevant circumstances. The breach analysis must be prospective, not retrospective. The manner in which the s 48(1) test is to be applied was recently discussed by the Court of Appeal in Erickson,[2] where Kyrou and Kaye JJA stated:
[2][2015] VSCA 220, [37]–[39] (endnotes deleted).
It is important that the Court not adopt a mechanical or formulaic approach in applying the three prerequisites specified in s 48(1). Ultimately, the content of the standard of care, required of an alleged tortfeasor, is an issue of fact, which is to be resolved by an exercise of common sense, taking into account the jury’s (or, in the relevant case, the judge’s) worldly experience. Where, as in this case, the alleged risk attaches to a domestic premises, it is important to bear in mind the observations of members of the High Court in Neindorf v Junkovic, that few people live in premises that are completely free of hazards. In that case, the respondent was injured when she tripped on an unevenness in the driveway of the appellant’s home when she attended the appellant’s premises for the purposes of participating in a garage sale. Hayne J stated:
In the present case, the relevant danger was presented by the uneven surface of the appellant’s driveway. Neither the fact that the driveway paving was uneven nor the degree of unevenness ... is or was at all uncommon in the driveways of suburban housing. Would it have been reasonable for the occupier to eliminate or reduce the risk of tripping or stumbling on or over the unevenness, or to warn all entrants to watch their step?
It may be that some means of reducing the danger could readily have been found. ... But would it have been reasonable for an occupier embarking upon a garage sale to take any of these measures?
When that question is examined from the proper perspective, without knowing what in fact happened to the respondent, the answer is No. Any suburban house presents many features that can lead to injury. In that sense, any suburban house presents many dangers. The appellant, as occupier, was not required to reduce or eliminate the danger presented by an unevenness in the driveway that was no larger than, and no different from, unevenness found in any but the most recently installed suburban concrete driveway. Nor was the occupier required to give some warning to entrants ... The fact that the appellant had invited the public to attend a garage sale, and display the goods for sale as she did, requires no different conclusion.
Similarly, in Thompson v Woolworths (Qld) Pty Ltd the High Court, in its joint judgment, stated:
The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community’s standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. ...
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.
Those observations are important when considering each of the three issues posited by s 48(1) of the Act, namely, whether the postulated risk was foreseeable, whether it was not insignificant, and whether in the circumstances a reasonable person in the defendant’s position would have taken the precautions postulated by the injured plaintiff.
In undertaking the s 48(1) analysis, the court is required to have regard to the expression of the duty in s 14B(3) of the Wrongs Act and to consider the factors listed in s 14B(4).
The nature of the premises occupied by the defendant, the use to which those premises were put, and the frequency with which persons attended the premises are all relevant considerations. Whilst Mr Wanklyn used the premises as his residence, there was also a commercial aspect to the premises’ use, that is, the advertised cabinetmaking business. There were new customers, potential customers, persons visiting to check on the progress of work and persons attending to collect completed work. There was a sign at the entrance to the property advertising the cabinetmaking business. It was clearly foreseeable that customers might come to the premises in response to that sign, whether or not Mr Wanklyn was home, and that they might enter the shed. Other visitors at Mr Wanklyn’s premises might also enter the shed from time to time. However, the number of visitors to the premises was not great, and this does weigh against the plaintiff on breach.
The nature of the danger posed by the trench weighs in favour of the plaintiff on the breach analysis. Every visitor to the premises entering the shed would be exposed to that danger. The trench was not in the nature of an imperfection or irregularity that might be expected on such a premises. An instance of such an imperfection or irregularity is the height differential between the gravel drive and the concrete floor of the shed. By contrast, the trench is a feature which a visitor would not expect to exist, might find difficult to perceive, was positioned such that a visitor seeking to step into the shed might easily step into it, and was in its dimensions and characteristics something which could easily bring a person stepping into it to grief. It was a danger positioned directly and immediately across the front of the point at which a visitor could be expected to enter the shed. It was, in my view, easily foreseeable that a visitor attempting to enter the shed without warning of the existence of the trench might step into it and suffer injury. In other words, whilst the frequency of visitors could be expected to be relatively low the risk of any one visitor, not warned of the existence of the trench, coming to grief was high.
The gravity of the risk of musculoskeletal injury to a visitor coming to grief in the trench was significant, perhaps potentially even more serious if such a person pitched forward and fell onto the concrete floor of the shed.
It might be that the age of the plaintiff should also be taken into account. Clearly the plaintiff was elderly. There was no evidence he was a frequent visitor at the defendant’s premises. On the other hand, as was known to the defendant, the plaintiff had reason to attend the premises. It did not seem a matter of great surprise to the defendant that the plaintiff might attend without notice. Prior to the accident, the plaintiff’s mobility was reasonable, but from time to time he used a walking stick and his daughter, Mrs Tompkins, had reasonable concern in relation to the risk of the plaintiff falling.
The defendant might easily have taken precautions against the risk of harm, simply by erecting a temporary barrier restricting access through the shed door or by warning of the existence of the trench. Probably closing and locking the shed door, as he did when removing the rollers a short time prior to the accident, would have been sufficient. That there was little burden on the defendant of taking such precautions weighs in favour of the plaintiff on the breach argument.
Taking account of all of these matters, I conclude that there was a breach by the defendant of his duty to the plaintiff in leaving the trench unguarded and without warning as to its existence, which was a cause of the plaintiff stepping into the trench, falling and suffering injury.
Counsel for the defendant argued that if it were determined that there was a breach on the part of the defendant which was a cause of the plaintiff’s fall, there should be a finding of contributory negligence against the plaintiff on the basis that the trench was patently visible, and that the court should not accept that the plaintiff was watching where he was stepping. Having regard to my findings as to the difficulty perceiving the trench, and as to the plaintiff taking reasonable care in watching where he was stepping, I make no finding of contributory negligence.
The plaintiff’s injury, loss and damage
Mr Scott
Before the accident the plaintiff had been ‘100 per cent fit’. In evidence‑in‑chief he said that he was playing nine holes of golf on a weekly basis at local courses in a competition known as ‘Dad’s Army’. However, in cross-examination Mr Scott said that he had stopped playing golf prior to the accident in order to concentrate on lawn bowls. When he last played golf he had used a golf cart. Mr Scott said that he played bowls three times a week at the Swan Hill Racecourse. He played competition on Wednesday afternoons, pennant bowls on Saturdays and also played on Sundays. He had won some trophies. He enjoyed the social aspect, and spent a bit of time at the bar with friends after bowls or at the golf club.
In relation to his injuries, the plaintiff said in evidence in chief that he was first taken by the ambulance to the Swan Hill hospital, where x-rays were taken and it was found that he had broken his hip. He was then transferred to the Bendigo hospital. They operated on him on Boxing Day, and he was there for three weeks in rehabilitation. He was on painkillers to keep the pain down. The pain was bad enough to be taking the tablets. He could get out of bed for half an hour with a walker. After three weeks he was transferred back to Swan Hill hospital, where he stayed for one night and was then sent home.
Mr Scott then had eight weeks’ treatment in a heated swimming pool, one day per week doing exercises. He had an exercise bike at home which he has continued to use every day. He did not have physiotherapy. He has continued taking painkillers to the present time, though he was not sure of the name. He has no other treatment, and has not continued going to the heated pool.
When he got out of hospital his walking was limited, and he needed a walker or a walking stick. He required help from his daughter Jenny and from his wife Maryanne. Jenny helped by getting his medications fixed up, assisting him with dressing a little bit, but that was about all. He still drives and denied any difficulty driving, though it is clear from the evidence of his daughter Jenny Scott that she and the plaintiff’s GP are concerned about him driving. They now get Meals on Wheels, which they did not do before his accident. His wife cooks some meals for him and makes the bed.
Mr Scott said he is no longer able to play bowls or golf. His ability to walk is very restricted now. He cannot walk at all without a walker or his walking stick. Now 500 yards would be his limit, but previously he could walk for half an hour. He missed the friendship associated with playing his sports. He cannot go back to bowls because he cannot get his balance right. Before the accident he would get the daily papers, do the shopping up the street, do some vacuuming and the dishes. He had enjoyed growing vegetables to eat.
Mr Scott said he is a regular visitor to the doctor and goes about once a month for his hip. He said that if he does not take the painkillers he has pain. When asked how bad that pain was, he said he just put up with it.
In cross examination the plaintiff agreed that prior to the accident he had used a walking stick ‘from time to time’ and that this is probably because of his age rather than his knees. He had had diabetes for about 25 years, which was under control on medication. He had had a heart condition for about 15 years.
The plaintiff said that he was still able to join his golf mates at the bar if he chose to, and that he still did that from time to time. It was put to the plaintiff that he gave up golf before the hip injury because it was getting too hard for him, to which he responded, ‘Oh, yes, it was probably so, yes’, and that this was probably due to his advancing years. He said he loved his bowls and wanted to stick to that. He agreed that even currently there was nothing stopping him going and having a beer with the boys and that he was still able to socialise at the bowls club. He said he still got there every Friday night.
Jenny Melissa Scott
Jenny Scott is one of the plaintiff’s two daughters. She was previously married to Mr Wanklyn, but separated from him in 2005. After the accident, Ms Scott provided care to the plaintiff. Ms Scott said that when her father returned from the hospital, in around mid- to end- of February 2015, he was ‘very immobile’. During the first few weeks after his discharge from the hospital there was a very limited amount he could do and Ms Scott assisted him during this time. Ms Scott said that she assisted her father to shower and get dressed and she made sure he was being fed and gave him his tablets and that in the initial few weeks after he left hospital she ‘basically cared for him for most of the day’.
Currently, Ms Scott is employed casually and works around 20 to 22 and a half hours a week. Ms Scott said that she still cares for Mr Scott for around four to six hours a day. Ms Scott said that her day consists of getting up, waking up Mr Scott in the morning, getting Mr Scott’s breakfast and making sure his tablets are on the table for him, making sure he has clean clothes for the day, taking him to his appointments and preparing some of his meals, and doing grocery shopping as required. Ms Scott stated that she will also weed and water the garden, collect the paper for Mr Scott, make his bed for him every day, wash and change his sheets once a week and make sure his bed is ready for him to get into at night time. She also said, in cross examination, that she undertook general cleaning of the house probably two to three times a week.
Ms Scott stated that in recent times her father’s mental state has deteriorated, and that he is affected by depression. There have been several days when he just wants to stay in bed all day and Ms Scott will try and make sure he gets out of bed for the day. He is no longer able to enjoy social activities in which he used to participate such as going to the golf club or bowls club for a beer on Friday night, and about three months before the trial he stopped socialising with his friends at the bowls club.
Ms Scott stated that when she cooks meals for her father she is also cooking for her mother, Mrs Scott, who is blind. Ms Scott agreed that she has been undertaking some domestic chores, including gardening, cleaning and changing bed linen for both of her parents since before the accident, but she said that she helps her father more than before the accident. She stated that she hangs out the washing because her mother has trouble doing so.
Ms Scott said that her father had no quality of life any more, and that ‘… he doesn’t play bowls any more now. He — there’s nothing left there now.’
Carol Ann Tompkins
Mrs Tompkins is the daughter of the plaintiff. On the day of the accident she had driven her father and her two elderly aunts to the defendant’s premises to pick up her father’s repaired chair.
Mrs Tompkins said she parked the car more or less in front of the shed facing the house. She watched her father get out of the car and walk around the back of the car to the shed. She watched him walking firstly from her rear vision mirror and then her side mirror. In cross examination, Mrs Tompkins stated that she would always watch her parents as they are quite elderly and, whilst her father was not as unsteady as her mother, he was slightly unsteady and she was concerned that he might have a fall.
From her rear view mirror Mrs Tompkins saw the plaintiff overbalance and his arms went out as if to try and catch on to something that wasn’t there and then he just fell down. When she saw him fall she got out of the car in a hurry and rushed over to him with her two aunts coming behind her. She and her aunt tried to lift him up but he was too heavy for them and said he was in pain so they just put him down again and went and rang the ambulance from the car. Mr Tompkins stated that Mr Wanklyn returned to the property after her father had fallen but before the ambulance arrived.
When the ambulance had left with the plaintiff, Mrs Tompkins took her aunts home and informed her mother what had happened. She visited her father at the hospital that day. After that she would take her mother to see him at Bendigo Base roughly every second day for the next three weeks while she was in Swan Hill.
Mrs Tompkins remained in Swan Hill for about a week after the plaintiff was discharged from Bendigo. During the week that Mrs Tompkins remained, she saw her sister ‘running errands, getting papers for him, medications up the street. Whatever he wanted done up the street. Groceries.’
When asked to compare her father’s mobility and quality of life now to before the accident Mrs Tompkins commented that he is ‘probably 50 percent less [mobile]’ and prior to the accident he was playing sport, he was active and that his mental capacity was a lot better than it is now.
Medical evidence
A number of medical reports were tendered. No viva voce evidence was given by any of the medical witnesses.
Dr Kelada, general practitioner, confirmed the diagnosis of subcapital left femoral neck fracture requiring left hemiarthroplasty. He stated in a report dated 13 March 2015:
Today Mr Scott is pain free and is not in distress. He has persistent mild limp and uses single point stick to ambulate.
The plaintiff attended with medico-legal general surgeon, Mr Kenneth Brearley, on 15 May 2015. Mr Brearley recorded a history of frequent left hip pain made worse by standing for long and attempted walking, sleep disturbance caused by pain, and slow improvement. On examination he noted the plaintiff walked with a very marked limp with the aid of a four‑pronged stick. He found slight restriction of hip joint movements and some thigh wasting. He concluded:
He has had a fair result for the procedure but he is still quite disabled and he is walking with the aid of a wheeled walker at home or a fourpronged stick when he is out.
Mr Brearley regarded the prognosis to be good, and thought the plaintiff would improve very slowly.
The plaintiff attended with medico‑legal orthopaedic surgeon, Mr Ian Jones, on 15 December 2015. He recorded complaints of a permanent limp in the left hip and pain on the outer side of the hip, particularly with attempts at activity such as gardening, playing bowls or walking. The plaintiff was not aware of any particular restriction in left hip movement. He required the assistance of a wheelie frame to get about. On examination Mr Jones noted the plaintiff presented walking leaning heavily on the wheelie frame, with a slight left‑sided limp. Trendelenburg’s test in relation to the left hip was positive. There was marked restriction in left hip movement and some left thigh wasting. Mr Jones concluded:
This man currently suffers from pain particularly of restricted movement and weakness in his left hip necessitating the use of a wheelie walker frame. He is apparently on some analgesic medication, the name of which he could not recall.
Mr Jones went on to make some recommendations in relation to an active exercise program, and to note unrelated physical constraints from which the plaintiff suffered. He thought that the plaintiff would continue to suffer the symptoms and restrictions described at the time of the consultation.
Non-economic loss damages
Counsel for the defendant submitted that general damages should be assessed at $75,000. Particular reliance was placed upon the plaintiff’s age and the comorbidities from which he suffers, which it was said caused restriction on his activities that were increasing with time.
By contrast, counsel for the plaintiff submitted that an appropriate assessment of general damages was a figure of $150,000. Attention was drawn to the activities such as bowls, socialising, gardening and domestic tasks previously enjoyed by the plaintiff. It was put that the plaintiff’s age in some respects weighed in favour of a higher award, because the plaintiff was at a stage in life at which he got great enjoyment out of those activities which were now lost by reason of the injury.
I accept that the plaintiff has, in respect of the pain he experiences and the assistance he requires, understated the impact of the injury. The plaintiff required serious surgery and an extended period of hospitalisation. His mobility remains markedly restricted. The plaintiff requires ongoing analgesics, taken twice daily, and obviously continues to suffer some level of discomfort. I accept that by reason of the left hip injury the plaintiff has not been able to return to playing bowls, or maintaining his vegetable garden, and that he has suffered a considerable reduction in the enjoyment of his life as a consequence.
On the other hand, I note the plaintiff’s age, the comorbidities from which he suffers, and the increase in level of restriction in activity that in combination those factors were causing the plaintiff.
Taking all those matters into account, I consider an appropriate award of general damages to be a figure of $110,000.
Past and future medical expenses
The parties agree on a figure of $15,000 for past and future medical expenses.
Gratuitous attendant care damages
There is also agreement on the fact that there should be an allowance for past and future gratuitous attendant care services, and that those damages should be calculated at a rate of $30 per hour. However, there is substantial disagreement as to the time required to be spent on the care of the plaintiff by reason of the injuries, and therefore as to the amount to be allowed for those damages.
The parties agree that for the first six months after Mr Scott was discharged from hospital there should be an allowance for six hours’ care per day. At the rate of $30 per hour, this equates to $32,760.
For the plaintiff it is submitted that after the first seven months from the date of the injury, gratuitous care should continue at the rate of five hours per day, to date and into the future. That submission is largely based on the evidence of Jenny Scott. Against this, the defendant submits that an appropriate continuing rate is one hour per day, on the basis that the four to six hours per day estimate given by Ms Scott was likely to be an over‑estimate, included time spent caring for her mother, and care provided to her father in any event. In my view there is some substance in the argument advanced for the defendant. I consider it appropriate to allow one and a half hours per day attendant care services from the seven‑month mark following the accident, to date and into the future. This equates to a weekly allowance of $315.
The past loss period beyond the first seven months is approximately 48 weeks, which results in a further past loss of $20,160.
The future multiplier is agreed at 213. At a weekly rate of $315, this calculates to a future loss of $67,095. I agree with the submission of the defendant that this figure should be reduced for vicissitudes, given the plaintiff’s advanced years. I consider a reduction of 15 per cent to be appropriate. This reduces the future loss calculation to $57,030.
Having regard to these calculations, I consider it appropriate to allow a total of $105,000 for gratuitous attendant care services, past and future.
The total of the general damages, past and future medicals, and past and future gratuitous attendant care is therefore $230,000.
I will hear from the parties as to the appropriate orders, including as to costs.
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