Simon-Beecroft v Proprietors "Top of the Mark"
[1995] QSC 265
•1 November 1995
IN THE SUPREME COURT
OF QUEENSLAND
No 3500 of 1986
Brisbane
Before Mr Justice Ambrose
[Simon-Beecroft v Proprietors "Top Of The Mark"]
BETWEEN:
ANTHONY WILLIAM SIMON-BEECROFT
Plaintiff
AND:THE PROPRIETORS "TOP OF THE MARK"
BUILDING UNITS PLAN NO 3410
First Defendant
AND:
THE DAVIS HEATHER GROUP PTY LTD
Second Defendant
AND:
THE GOLD COAST CITY COUNCIL
Third Party
AND:
SUNCORP INSURANCE AND FINANCE
Fourth PartyREASONS FOR JUDGMENT - B W AMBROSE J.
Judgment delivered: 01/11/1995
CATCHWORDS: NEGLIGENCE - causation - evidence - fabrication of evidence - proof of admissions made to witnesses under ss.18 and 101 of the Evidence Act 1977 - whether facts proved against plaintiff by way of admissions sufficient to establish causation against defendants.
Counsel: Mr R.A.I. Myers and Mr S.J. Given for the plaintiff
Mr J.J. Clifford Q.C. and Mr A.J. Williams for both defendants.
Solicitors:Gall Standfield & Smith for the plaintiff
Minter Ellison & Quinlan Miller Treston for both defendants
Hearing dates: 25 - 29 September 1995 and 2,3,4,5,6,9,10 & 11 October 1995
IN THE SUPREME COURT
OF QUEENSLAND
No 3500 of 1986
Brisbane
Before Mr Justice Ambrose
BETWEEN:
ANTHONY WILLIAM SIMON-BEECROFT
Plaintiff
AND:THE PROPRIETORS "TOP OF THE MARK"
BUILDING UNITS PLAN NO 3410
First Defendant
AND:
THE DAVIS HEATHER GROUP PTY LTD
Second Defendant
AND:
THE GOLD COAST CITY COUNCIL
Third Party
AND:
SUNCORP INSURANCE AND FINANCE
Fourth PartyREASONS FOR JUDGMENT - B W AMBROSE J.
Judgment delivered: 01/11/1995
On 23 December 1983 the plaintiff suffered serious injuries near a building in Surfers Paradise called "Top of the Mark". As a consequence of those injuries he was rendered paraplegic.
He issued his writ of summons on 18 August 1986 and filed his first statement of claim on 3 November 1986 - nearly three years after his injury.
He brings this action against the proprietors of the "Top of the Mark" building on the basis that a balustrade along a balcony giving access to Twains, a nightclub in the building, was dangerously low and insufficient to prevent people from accidentally falling from that balcony to street level, a significant distance below. The second defendant is sued as responsible for the height of the balustrade, which although designed to be a greater height, for some reason in the course of construction had its height reduced. The second defendant as architect was involved not merely in the design of the building but also in the supervision of its construction, which resulted in its completion with a balustrade having a height of 850 mm rather than the design height of 1050 mm.
There is expert evidence as to the requisite height for a safe balustrade designed to prevent people falling off the balcony from which members of the public obtained access to the nightclub. It is clear that the balustrade as constructed was not merely of an inadequate height, but was also constructed contrary to the requirements of buildings regulations which were soon to be introduced and which were well known to persons concerned in the design and construction of buildings.
There is little doubt upon the whole of the evidence that the height of the balustrade was inadequate to protect people from inadvertently falling from the balcony and that the defendants would be liable to persons injured by falling from it if the inadequate height was shown to be a cause of that injury.
This was not a matter which was seriously contested on behalf of the defendants.
This case which proceeded for about 2½ weeks was concerned with the issues of causation and quantum.
The problem for the plaintiff on the issue of causation stems from the fact that there is no independent evidence to show that the inadequate height of the balustrade was a cause of injuries he suffered on 23 December 1983. The only direct evidence on this issue is his.
The plaintiff gave evidence as did his wife and several witnesses called to support him. I take the view that much of the evidence they gave was deliberately untruthful. This was demonstrated by tape recorded telephone conversations with the plaintiff and two of his witnesses, which demonstrated to my mind conclusively that they had given evidence on material issues which they knew to be untrue. To adopt the words of Isaacs J in The Coal Vend Case (1911) 14 CLR 387 at 400, the evidence given by the plaintiff and his principal witnesses on the issue of liability at least was the outcome of pre-concert or the manifestation of a mutual consent to carry out the common purpose of misleading the court as to the circumstances in which the plaintiff suffered his injury. For a discussion of the principles upon which statements made out of the presence of a party may become admissible against him if made in furtherance of a common purpose where pre-concert is shown, I refer to Tripodi v. R (1961) 104 CLR 1 at p. 6-8. The recorded conversations are themselves original evidence of this pre-concert or consent. The evidence-in-chief given by the plaintiff as to the events immediately preceding his injury was to a degree inherently inconsistent and after he had been cross-examined concerning a tape recorded conversation in which he discussed matters relating to causation, he departed from accounts that he gave in evidence-in-chief and cross-examination initially, but only to the extent in my view he thought necessary to accommodate matters which were clearly established against him in the tape recorded conversation. To the extent that he was unable to accommodate all those matters, he simply said that he could not explain why he had said those things which were quite inconsistent with the version of events he gave in the witness box in chief and initially in cross‑examination.
It will be necessary to examine with care the evidence given by the plaintiff in determining whether he has discharged the onus upon him on the causation issue.
Essentially the defence case rests upon admissions allegedly made by the plaintiff to his wife and to other witnesses, including two long time friends of himself and his wife and also another friend who is employed as a law clerk in the office of a solicitor on the Gold Coast that he suffered his injuries in circumstances quite different from those of which he gave evidence. Again it will be necessary to analyse in some detail the evidence concerning these admissions.
It is convenient at the outset however to state very briefly the effect of the evidence given by the plaintiff and more or less in chronological order the admissions he allegedly made as to the circumstances of his injury subsequent to his recovering consciousness about a month after he was found on the ground outside the "Top of the Mark" building in the early hours of the morning of 23 December 1983. Initially the plaintiff swore that he had had a couple of drinks in a nightclub which he left at about 1.30 a.m. in the morning. He said he walked down an internal flight of stairs from the nightclub to the balcony with the inadequate balustrade and as he passed through a door leading to the balcony, people approached to enter and he walked across the width of the balcony and put his hand on the balustrade railing. He said he simply went over the railing, noticing as he fell some objects on the ground level and then woke up in hospital a month later. He said that his recollection was that he did not get further than to touch the railing; he had taken five or six steps across the balcony from the doorway giving access to the nightclub to the balustrade railing upon which he placed his hand and made no movements along it. He said that his feet simply slid from under him and he could not understand what was the cause of his fall. At that time he was 6 foot 3 inches tall and weighed nearly 18 stone. He said he recalled that his body had come into contact with the balustrade just a little higher up than half way between his hip joint and his knee joint. He said that from his hip joint to the sole of his foot was 900 mm and the railing height was 850 mm.
Leaving the night club to reach street level from the balcony it was necessary for the plaintiff to make a right hand turn after walking down the internal stairs and walk along the balcony a short distance until he reached a flight of stairs giving access to street level. When he reached those stairs he had to turn left to descend them. He said later (after the interposition of other witnesses) that after he had placed his hand on the railing when he reached it he "walked against the railing towards the staircase". He said that in doing so he just overbalanced. He said that indeed he had taken three or four or five steps along the length of the railing after passing the people who were walking into the nightclub entrance during a period of some seconds. He said the area was well lit. He said he thought that he had on relatively new shoes and that the shoes may have "got him out of balance" causing his feet to go from under him and that looking for support he could not find any. He said it must have been the railing that put him out of balance and that caused him to lean against it with his hip as he was walking along beside it. He was shown a photograph showing the condition of the balcony and rail at about the time of his injury and he pointed out the spot where he said he would have fallen over the railing.
Thus he gave two inconsistent versions of events leading to his alleged fall in evidence‑in-chief.
When pressed in cross-examination he said that just preceding his fall he was walking along beside the railing on the balcony. He said that as he was stepping out with his right foot in front of him, the railing or balustrade appeared to turn him and his feet went from under him. It was as his right foot was out in front of him that his left hip lent over to come into contact with the balustrade causing him to lose balance. He said that he fell in a forward manner. He denied that he had ever said that he had gone over backwards. Indeed, he stressed that it would have been impossible for him to go over backwards because he was walking forwards at the time he fell.
He said that after he regained consciousness in the hospital he had tried to work out with his wife how he had fallen.
In cross-examination the defendants' case was put to the plaintiff that he had been involved in a scuffle with a bouncer, who was removing him from the nightclub because of his obnoxious behaviour there, and that it was in the course of this scuffle that he ended falling from balcony level to the ground below. The plaintiff denied that he had been obnoxious to anybody in the nightclub, or that any bouncer had told him to get out, or that he had been chased out, or that indeed he had had any discussion with any bouncer at the nightclub.
Indeed, he denied ever telling his wife or anybody else for that matter that a bouncer had been in any way involved with his injury or that he had anything to do with a bouncer inside or outside the nightclub on the occasion of his injury. He said the first time that he had ever heard mention of a bouncer was four or five years before trial and that this had been mentioned by one of the witnesses, Jill Kenyon, who was later called for the defence. There was much material put to the plaintiff in cross-examination based on a recorded telephone conversation between him and Mr Kenyon and he denied that material. Eventually, when the recorded conversation was played to him in cross-examination, he made admissions that he had lied on oath but was unable to explain why he had asserted some matters in that conversation if, as he swore in evidence, they were untrue. Eventually, he said that he had no idea whether he had made statements to Mr Kenyon concerning the involvement of a bouncer with his injuries.
After listening to that taped conversation between him and his long standing friend Sam Kenyon, the plaintiff asserted that the whole account of the involvement of a bouncer had been deliberately manufactured by Sam Kenyon and his wife, Jill Kenyon with a view to maliciously destroying his claim and that there was not a word of truth in any of it. Eventually, in the course of cross-examination he admitted that there had been discussions between him and Sam Kenyon in which assertions had been made that he had claimed that a bouncer had caused him to fall from the balcony. He agreed that he had never denied this when it had been suggested to him by Mr Kenyon but said that it was quite untrue and that he had no idea why he had not denied these suggestions when they were made. He said that he could have corrected this false impression, which apparently Mr Kenyon was under, but he did not ever bother to do so. He did say that he had told his wife a couple of days after his birthday in hospital - probably the end of January or thereabouts in 1984 - how his injury had happened to him.
This leads me to an admission proved against the plaintiff by virtue of s.101 of the Evidence Act. In the course of cross-examination it was put to the plaintiff's wife that shortly after the plaintiff had recovered consciousness she was walking through the hospital grounds with Jill Kenyon when she told her that the plaintiff had recovered consciousness and explained how he had sustained his injury. Without going into the details of the conversation at this stage, according to Mrs Kenyon the plaintiff's wife told her that the plaintiff said that he had had too much to drink and was removed by a bouncer from the club. He was taken to the top of the stairs (leading from the balcony to street level) where the bouncer told him "on your way mate"; he had proceeded down the stairs, but part way down he decided that he was not going to take this treatment from the bouncer and returned walking up the stairs throwing a punch at the bouncer. The bouncer at this time was standing at the top of the stairs and these stairs are shown in the photograph which is ex. 45. He said that the bouncer king hit him and he went over the rail to suffer his injury.
The plaintiff's wife denied both that the plaintiff had ever told her this version of events and that she had ever told Mrs Kenyon that he had told her that. Indeed, she denied that there had ever been any discussion between her or the plaintiff in her presence and the Kenyons or anybody else for that matter about the plaintiff being propelled from the balcony or the top of the stairs to the ground below by a bouncer.
Mrs Kenyon was called to give evidence that the plaintiff's wife did give this account to her within a month or so of the plaintiff's injury. If Mrs Kenyon is accepted as a truthful, reliable witness as to this conversation with the plaintiff's wife, then it provides evidence of an admission made by the plaintiff to his wife as to the cause of his injury, which of course is quite inconsistent with the version of events he gave in the witness box.
There has been an insurance investigation into the circumstances of the plaintiff's injury and towards the end of June 1995 Mr Draydon, on behalf of the insurer in this case, had some telephone conversations which he recorded with Mr Crothall, a friend of the plaintiff called to support his case, and with Mr Robbins also a friend of the plaintiff called to support his case. As well as that, Mr Draydon persuaded Mr Sam Kenyon to have a telephone conversation with the plaintiff while he was in hospital suffering from an injury to his leg, sustained when he fell out of his wheel chair, which was also recorded. Mrs Kenyon also had a telephone conversation with the plaintiff's wife at about this time which was also recorded. It is not clear that this telephone conversation was recorded at the instance of Mr Draydon or even whether it was intentionally recorded by Mrs Kenyon with a view to obtaining evidence which might be used against the plaintiff's wife if she disagreed with material contained in the recorded conversation. I will deal with that in more detail at a later stage.
In Mr Crothall's recorded telephone conversation he also asserts that the plaintiff informed him "a dozen times" that he had been "assisted" off the balcony by a bouncer. He denied this when he gave evidence on behalf of the plaintiff, but not surprisingly was contradicted by the terms of the conversation he had with Mr Draydon which was recorded. Under s.101 of the Evidence Act this conversation when proved also becomes evidence of admissions made by the plaintiff to Mr Crothall concerning his being "assisted' off the balcony by a bouncer. In a conversation recorded between Mr Kenyon and the plaintiff discussions took place concerning the part played by the bouncer in the plaintiff's injury. Mr Kenyon asserted that the plaintiff had been telling him this for a long time. While the plaintiff did not deny that he had been giving him that version over a long period of time he did assert that the bouncer had nothing to do with his injury and that Mr Crothall was incorrect in what he had told Mr Draydon.
Stated very broadly then the significant evidence upon which the defendants rely is the admission allegedly made by the plaintiff to his wife which was passed on to Mrs Kenyon within a short time of his injury and admissions that had apparently been made by the plaintiff to Mr Crothall over a period of seven years or thereabouts prior to trial. All admissions are not precisely the same in matters of detail. For example, according to Mr Crothall the plaintiff had told him on many occasions that the bouncer had hold of him by the scruff of the neck and forced him backwards over the balcony rail at a time when the plaintiff was trying to punch the bouncer and that the bouncer had then let him go and he had fallen to the ground below.
The whole matter is complicated to some extent by the fact that the stairs, as they existed at the time of the plaintiff's injury, did not really have "rails" but had what appeared to be stair rail high concrete walls either side with a metal rail down the centre.
The matter is also complicated by the fact that expert evidence given by Mr McDonald is to the effect that even had the balustrade rail been constructed to regulation height on the balcony - that is 1050 mm - the plaintiff could still have been pushed backwards over it by somebody trying to do that, although it would have been easier to do so with a rail 850 mm high than with one of 1050 mm. The top of the concrete walls to the side of the stairs shown in the photograph would seem to have been about the height above balcony floor level that the balcony rail ought to have been, had it been constructed to a safe height and in accord with the approved plans. So constructed it would have been 150 mm above the level of the plaintiff's hip joint. As constructed it was 50 mm below his hip joint level.
The only other evidence called to support the plaintiff's case on liability was that from Mr Allen, an ambulance officer who attended the plaintiff in respect of his injuries, the subject of this action. He said that he arrived at the accident scene at about 2 a.m. and found the plaintiff on a paved area between the edge of a footpath and the building containing Twain's Nightclub. He said the plaintiff was "a little bit back off the footpath itself". He was unable to say where the plaintiff was lying with respect to the entrance to Twain's Nightclub. He was unable to say where the plaintiff was laying with respect to the balcony or the stairs leading from the apron area where he was found to the balcony giving access to the nightclub. The ambulance officer was unable even to say on which side of the stairs giving access to the balcony, which in turn gave access to the nightclub, the plaintiff was lying as he approached the plaintiff from the footpath.
In my view, the evidence of Mr Allen is incapable of supporting any inference as to from exactly where the plaintiff fell to suffer his injury - assuming he did suffer it in a fall. In particular, considered by itself, I find it incapable of supporting an inference that he fell from the balcony which figured in the evidence or from any part of that balcony in particular. I find it also incapable of supporting an inference that he fell from the stairs to which the ambulance driver referred which I take to be the stairs shown in the photograph, ex. 45.
When asked where the "stairs" were, the ambulance driver said "From being a patron myself, I believe they were somewhere to the right hand side. It was a fairly dicey stairway but that is all". He confirmed that he could not "locate" the plaintiff "in relation to the balcony or the stairs". He said that he was unable to remember where the stairs came down from the balcony and in particular he said that as he approached the stairs from the footpath he was unable to say on which side of those stairs as they came down the man was, whether the left hand or the right hand side as he approached them. It was contended on behalf of the plaintiff that the ambulance officer was probably referring to the internal stairs leading from the balcony up to the nightclub. In my view he was not referring to those at all but to the stairs which must have been very plain to him when he arrived at the scene to give assistance to the plaintiff. He specifically referred to the balcony and the stairs, both of which must have been plainly visible to him when he attended the plaintiff lying on the pavement, from which the stairs gave access to the balcony. The stairs in question had been demolished and replaced by new stairs between 1983 and 1995. The new stairs are shown in photograph 1 in ex. 23.
The critical evidence for the defendants is that given by Mrs Jill Kenyon. On the defendants' case she was the person to whom the plaintiff's wife relayed his admission that he suffered his injuries after an altercation with a bouncer connected with Twain's Nightclub at or near the top of stairs leading to the balcony near the access to the nightclub within about 6 weeks of his injury.
She said that she and her husband had been very friendly with the plaintiff and his wife for some time prior to the plaintiff's injury. Indeed, they had employed the plaintiff's wife in a fish and chip shop which they ran in earlier times. She said after the plaintiff's injury she drove his wife each day to the hospital where the plaintiff was in intensive care. She said that about 7 to 10 days after he regained consciousness she accompanied his wife one day to hospital and on the way she informed her that the plaintiff had told her he remembered how the accident had happened. Mrs Kenyon said that the plaintiff's wife said:
"Tony had gone to measure or inspect a block of land. He came back from there. He called into the Benowa Hotel. From the hotel he went to Papillons and from Papillons he went to Twain's Nightclub. He was very drunk at the time he got there. He had thrown a glass of drink over somebody. The bouncer asked him to leave. He subsequently left, the bouncer stood at the top of the stairs, put his hands on his shoulders and said 'on your way mate'. Tony stumbled down the stairs. He got down there and in his drunken stupor he decided the bouncer wasn't going to do this to him so he came back up the stairs, went to take a swing at the bouncer, the bouncer king hit him and sent him over the railing."
She said that the plaintiff's wife told her that the bouncer had been at the top of the stairs and that the plaintiff said that he had gone over the railing at the top of the stairs.
Internal stairs from the balcony to the nightclub on the next level did not have handrails.
Mrs Kenyon said that after the plaintiff's discharge from hospital she and her husband, Sam had visited the plaintiff quite often at his apartment on the Gold Coast and had, on a number of occasions, discussed with both the plaintiff and his wife how the plaintiff had suffered his injury. She said that the plaintiff was normally there when they visited the apartment, although his wife was working and from time to time she was not there. Sometimes however she was. She said that on a number of occasions the plaintiff had informed her and her husband that a bouncer had "put him over the railing". She said that on one occasion she remembered that the plaintiff's wife had said "Well aren't you glad that they didn't do a blood test on you because you were pissed". She said that the plaintiff laughed on this occasion.
On another occasion after an article had appeared in the Gold Coast Bulletin concerning another man injured near the "Top of the Mark" building she said to at least the plaintiff's wife "There is another guy gone over the Mark building. This guy has subsequently died and this person [Hall] the bouncer is up on manslaughter" and she said that the plaintiff's wife said "Yep. That's the guy that did Tony". Mrs Kenyon was unable to recall whether or not the plaintiff was present at the time of this conversation. She said that what stuck in her memory was the observation that his wife made. I consider that this evidence goes to the reliability of the evidence of the plaintiff's wife.
Mrs Kenyon gave evidence that while still at High Surf, the apartment block where the plaintiff and his wife were living, the plaintiff said that he was going to seek compensation for the injury, but remarked that he could not sue the bouncer because the bouncer did not have any money. She said that he said that he was going to sue the body corporate, the architects, the builders and he was going to try to bring the Council in as well, because the balcony railing was under the building regulations' standard. She said he said "I am going to say I had new shoes on, they were slippery, I stepped back to allow some people to go past and I went over the balcony railing". She said that the discussion as to how the plaintiff had suffered his injury was really a dinner topic over several years and that she and her husband, Sam and the plaintiff and his wife would talk about it at dinner and laugh about how the bouncer had "biffed him". She said that both the plaintiff and his wife used observe that they were glad that no blood test had been performed on the plaintiff when he was taken to hospital. She was unable to say how often such conversations had occurred. She said that they certainly occurred more than once or twice, but eventually those sorts of dinner party discussions ceased and that the plaintiff's wife would say to the plaintiff when he embarked upon discussions of this sort "keep you f'ing big mouth shut". On another occasion Mrs Kenyon recalls there was an article in the Gold Coast Bulletin about a robbery that had been committed by a man named Hall at Bartlett's Barn. She said she said to the plaintiff and his wife "The bouncer that put you over the railing has just robbed Bartlett's Barn", to which the plaintiff replied "Well I can't sue the bouncer because he doesn't have any money", to which Jill Kenyon replied "Well he's got plenty now". She said that this occurred about Christmas time and in fact there was a newspaper article relating to that incident published on 27 December 1984.
Not surprisingly, Mrs Kenyon was subjected to a long and forceful cross-examination in which it was put to her that she had completely fabricated the evidence she gave. It was put to her that she was deliberately and maliciously attempting, by a false story, to prevent the plaintiff from recovering damages, to which he was entitled. It was said that she suspected or believed that the plaintiff's wife had written a letter to the solicitors for the defendant in an action which her husband had brought for injuries he sustained when he fell in a shop advising that her husband's claim was fraudulent. There seems to be little doubt that somebody wrote such a letter which indeed was not denied by either Mr or Mrs Kenyon. It is also clear, I think, that the plaintiff's wife was one of the persons suspected of being responsible for writing that letter. The upshot of all that was that Mr Kenyon settled his action for about $40,000, whereas he had actually claimed $200,000, the maximum sum claimable in the District Court.
The same attack was made on the credit of Mr Kenyon who gave evidence as to admissions made to him by the plaintiff over the years concerning being put over the rail by a bouncer. Indeed, the tape recorded conversation between the plaintiff and Mr Kenyon was obviously directed to induce the plaintiff to admit that in that conversation. The plaintiff did not clearly admit in the recorded conversation that any bouncer had had put him over the rail. Indeed, he asserted that no bouncer had been involved at all in his injury and that he had only had contact with a bouncer up in the nightclub itself, well away from the balcony from which he says he fell. Nevertheless, it is noticeable that the plaintiff did not deny that he had ever asserted that to be the fact as was constantly put to him by Mr Kenyon. As a matter of commonsense, one would wonder why Mr Kenyon might attempt to obtain from the plaintiff on tape admissions that he had been "assisted" over the balcony by a bouncer by referring to occasions upon which the plaintiff had made those statements, if the plaintiff had never made those statements. However. that is a matter which I observe merely in passing because it has only a peripheral relevance in assessing the credibility of Mrs Jill Kenyon. It does have some relevance of course because it is inappropriate to examine the reliability of evidence given by each witness in isolation. The evidence given by each witness must be considered in the context of evidence given by all the other witnesses as to admissions etc.
Mrs Jill Kenyon in fact had a telephone conversation with the plaintiff's wife a couple of months before the trial started. She recorded this conversation. The tape (and a copy of the transcript) is ex. 50. She says it was her practice to record social conversations and indeed there are all sorts of recorded telephone conversations on the tape containing the conversation she had with the plaintiff's wife. When she gave evidence Mrs Kenyon was cross-examined about this conversation and its suggested content was put to her as going to her credit. She then said she had taped that conversation and had the tape on her. After giving some consideration to the matter, counsel for the plaintiff called for the tape, had it played and then cross-examined Mrs Kenyon as to its contents asserting inter alia that in fact she had dishonestly interfered with the tape to excise something on it which may have reflected adversely upon her. As Mrs Kenyon said, she had brought the tape with her to court voluntarily. It would hardly have been admissible at the instance of the defendants having regard to its content. I am unpersuaded that Jill Kenyon did maliciously or deliberately interfere with the tape record of the conversation she had with the plaintiff's wife. I must say a careful listening of the tape persuades me that it was the plaintiff's wife who suggested to Mrs Kenyon that it was likely that Mrs Kenyon would be called to give evidence and when Mrs Kenyon said that she would have to tell the truth and recount the version of events that the plaintiff's wife had given her at the hospital, the plaintiff's wife denied ever having relayed any explanation of her husband as to events leading to his injury and then embarked upon what in my view was a thinly disguised threat as to what would be put to Mrs Kenyon (and her husband) if she persisted in giving evidence to the effect that she indicated over the telephone. She then asserted that various people had told her of Mrs Kenyon's intention to destroy whatever prospects the plaintiff had of recovering damages. She named various persons - even related to Mrs Kenyon - and made it clear that if Mrs Kenyon did give evidence along the lines she intimated those matters would be raised against her. Mrs Kenyon did give that evidence and those matters were raised against her and indeed her husband. The plaintiff called no evidence from the various persons named to establish bias against Mrs Kenyon.
I am uncertain on the material whether Mrs Kenyon took the record of conversation she had with the plaintiff's wife with a view to making use of it in the plaintiff's action. I am persuaded on the probabilities that she did suspect that the plaintiff's wife was or may have been responsible for the letter written with a view to affecting Mr Kenyon's claim in the District Court. I find that Mr Kenyon also approached the insurer a few months before the trial was to commence and informed its agent what he asserted the plaintiff had told him concerning the events leading up to his injury. The probability is that he did this with a view to putting obstacles in the way of the plaintiff succeeding in his action.
It may be the case that Mr and Mrs Kenyon were motivated to give evidence against the plaintiff by reason of a falling out which they had - particularly the one between Mrs Kenyon and the plaintiff's wife. Indeed, they seem to have had several arguments over the years which were traversed in cross-examination. Perhaps they may have desired to "pay back" the plaintiff and his wife who they suspected may have led Mr Kenyon to compromise his claim.
The real question however is not what motivated Mr and Mrs Kenyon to give the evidence which they did, but whether that evidence is true. In determining whether the evidence is true and particularly the evidence given by Mrs Kenyon as to the statements made by the plaintiff's wife to her at the hospital as to what the plaintiff's version of events leading to his injury then was, that evidence must be considered in the context of all the other evidence. I decline to adopt the approach for which counsel for the plaintiff contends and simply disregard it as unreliable and probably perjured because of the undoubted disaffection which existed between the plaintiff and his wife and Mr and Mrs Kenyon at the time the Kenyons assisted the defendants in preparation for the trial ,which was probably in June - July 1995. I reject the evidence of the plaintiff and his wife to the effect that Mr Kenyon demanded $174,000 for assistance he had given to him after his injury. I take the view that this assertion was made simply to discredit the Kenyons because they refused to cooperate with the plaintiff in making out a false case. Nobody alleged to be present on the occasion (apart from the plaintiff and his wife) was called to support the allegation and Mr Kenyon, when cross-examined about the occasion, said that he had a tape recording of the conversation that actually occurred in court. However the plaintiff did not call for it.
In determining the weight to be given to the evidence of Jill Kenyon I will review it in the context of other evidence, in particular the recorded conversation between the plaintiff and her husband and the evidence of Mr Crothall and the evidence of her husband, Sam Kenyon, both of which relate to admissions allegedly made to them by the plaintiff concerning the involvement of a bouncer with the injuries he sustained in December 1983.
With respect to Mr Crothall, I must make some preliminary observations before descending to any analysis of the evidence which he gave and the recorded telephone conversations in which he made statements quite inconsistent with his evidence and which suggest very strongly that not merely did he believe that the plaintiff had fabricated the case he made out before this court, but that he was willing to assist him in that endeavour.
It is perfectly plain from the terms of the telephone conversations and particularly that between Mr Crothall and Mr Draydon on 22 June 1995 (ex. 39A) and Mr Kenyon on a date not long after 22 June 1995 that Mr Crothall, and I presume the plaintiff, were well aware that should he be called to give evidence he would be cross-examined to establish facts which he clearly asserted in his telephone conversation with Mr Draydon on 19 June. Those assertions in my view lend strong support to the evidence given by Mrs Kenyon as to statements made by the plaintiff's wife in the hospital grounds shortly after the plaintiff recovered consciousness relating to admissions the plaintiff then made of the involvement of a bouncer with his injuries. The statements made by Mr Crothall to Mr Draydon on 19 June 1995 did not recount admissions by the plaintiff on all fours with those recounted by the plaintiff's wife to Mrs Kenyon, but they were so similar in effect as to give the lie to the plaintiff's version of events in Court. Similarly, the telephone conversation recorded between Mr Kenyon and Mr Crothall, which I assume took place a few days subsequent to 22 June 1995, apart from suggesting strongly that Crothall was attempting to persuade Kenyon to depart from the truth, should he be asked to give evidence concerning admissions made by the plaintiff to him, also to my mind confirm that indeed the plaintiff did tell Crothall that he suffered his injuries as the result of an altercation with a bouncer.
I was quite unimpressed with Crothall as a witness. I believe he was evasive and deliberately attempted to mislead the Court concerning discussions that he had had with the plaintiff concerning his injury prior to giving evidence. He did this in accordance with a strategy which he attempted to use when departing from the story he initially gave to Mr Draydon on 19 June 1995 in his second telephone conversation with him on 22 June 1995, which is recorded in ex.39A. He suggested the use of this same strategy to Mr Kenyon in the telephone conversation recorded in ex. 41A.
Having made those preliminary observations I will deal briefly with the evidence given by Crothall. It is not feasible to deal with it in great detail. I can only observe that the evasion in and unreliability of most of the evidence given which emerges clearly enough from reading it in the transcript was confirmed and indeed enhanced by the demeanour of the witness in the course of his cross-examination.
In the vernacular of the witness in his telephone conversation with Mr Kenyon, the evidence he gave was to help out his mate because he was sorry for him. In my view, he was prepared to say anything which he thought might help the plaintiff, whether true or untrue, and it is clear from the content of the discussions he had, particularly with Mr Kenyon, that he had taken advantage of whatever legal knowledge he may have had and whatever legal opinion may have been available to him by reason of his employment as a law clerk to tailor his evidence to assist the plaintiff to the extent that he was able to do so.
Mr Crothall was called to give minor evidence on the question of the plaintiff's economic loss. In the course of cross-examination however, not surprisingly and I am satisfied in accordance with his expectation, he was asked whether the plaintiff had ever told him how he had sustained his injury. He said that he could recall "various stories from Tony so I mean I don't - there have been various stories about the accident". He was asked specifically to tell what he had heard from the plaintiff. To this question he replied:"Probably the one I have heard more than anything Tony was trying to exit out of this club and moved aside to let some people out and slipped, lost his footing and at one stage mentioned on a couple of occasions that he had new shoes on. They were very slippery and he slipped over this balcony. That would be the main story that I have discussed with him in the past."
He said that another story that he had heard was that the plaintiff was talking to someone on the balcony and he looked down and tumbled over the balcony. He said that they were the only two stories he had ever heard personally from the plaintiff. He was asked whether the plaintiff had ever told him about a bouncer being involved in the incident and he said that the plaintiff had told that he had had a heated discussion with a bouncer on another floor in the club, which was on a floor above the level from which he actually fell over the railing. He said that from what the plaintiff had told him he had suspected that that event on a different floor and away from where the plaintiff fell, had happened something like an hour before the accident happened.
The terms of the account which he had given to Mr Draydon by telephone on 19 June 1995 were then put to Mr Crothall, not once but on a number of occasions. He said that he did not recall saying the things put to him and that if he did say them he must have been drunk. He said that he had no recollection of the plaintiff saying anything to him about involvement with a bouncer anywhere near the rail over which he said he fell; the only mention of a bouncer had been with respect to an event that had occurred on another floor altogether and nowhere near the railing in issue.
When the precise terms of the recorded conversation were put to Crothall and in particular his observation that the bouncer "had assisted Tony over the balcony", he said that he had had a conversation with Mr Draydon, but that it was Mr Draydon who had suggested to him that those things had happened.
It is absolutely clear from the terms of the recorded telephone conversation that Mr Draydon had made no such suggestion, and that indeed it was Mr Crothall who had volunteered that version of events as having been told to him by the plaintiff on a dozen occasions over a period of 7 years. However, when pressed in cross-examination he said that he did not believe that the plaintiff had actually told him what he may have said to Mr Draydon. This was at a time when it was not known, I think, to Crothall that his first telephone conversation had been recorded, although I have little doubt that by this stage in cross‑examination he suspected that it had been recorded. He certainly suspected that the second telephone conversation that he had with Mr Draydon on 22 June 1995 had been recorded because he said so to Mr Kenyon in a later recorded telephone conversation with him. Having had the recorded statement made to Mr Draydon put to him once again he said that he did recall the plaintiff telling him that he had an altercation with a bouncer against a wall, but certainly not against a railing.
It is clear from the evidence that in fact Crothall did tell the plaintiff between the time of his first telephone call with Mr Draydon on 19 June, and 22 June, the time of his second telephone call with him, what he had said to Mr Draydon on 19 June. In that conversation of 22 June 1995, Crothall denied having had any conversation with the plaintiff concerning what he had said on 19 June; it is equally clear from the recorded conversation between Crothall and Kenyon that he had told the plaintiff and, indeed, that when informed of what Mr Draydon had been told the plaintiff had become "paranoid" and said - "Oh shit mate, oh shit no that didn't happen at all", to which Crothall replied "Well that was one of the many I've heard, but that seemed the most logical one to me." When asked why the plaintiff would have become paranoid if he had nothing to worry about, Crothall replied:
"Well his solicitors told him yesterday he called him and said listen don't you worry about a thing. He said they'd be more concerned about what you're up to and how much you're making to get taken off your claim then anything else ...".
In considering this aspect of the recorded conversation between Kenyon and Crothall, it is convenient to keep in mind the recorded conversation between Kenyon and the plaintiff touching on this very issue because in my view the tone of voice and the manner of delivery of the plaintiff recorded when he dealt with this topic is more consistent with him informing Kenyon what "the story" was to be than what the true facts were.
It is convenient now to recount the admission proved against the plaintiff which is contained in the first recorded telephone conversation between Mr Draydon and Mr Crothall. After a couple of introductory remarks which to my mind in no way suggested any version of the events leading to the plaintiff's injury, he was asked:-
"DRAYDONWell, I gather that he's mentioned in your presence and ...
CROTHALL Yes, he has actually, yeh yeh.
DRAYDONThat he was in the nightclub, there was some sort of disturbance and he was asked to leave ...
CROTHALLHe was on a landing and I understand with a bouncer and the bouncer had him,his back to the wall as such, the wall that he ultimately toppled over, but Tony told me in the past that he had new shoes which were rather slippery and the rail was considerably lower than the rails would normally be. He is a tall fellow and I, I didn't know him on his toes, but I believe he was well over six feet, and he was held against this rail and the bouncer supposedly let him go, but I that's all I've ever been told.
DRAYDONBy Tony, that the bouncer just what?
CROTHALLI don't know the bouncer, I mean I heard he was subsequently jailed for some other matter but, this particular bouncer.
DRAYDONThat's a fellow called Malcolm Hall.
CROTHALLIs that right?
DRAYDONAnd did a robbery on Bartlett's Barn.
CROTHALLOh really, the same fellow that assisted Tony over the balcony.
DRAYDONAssisted him over the balcony. How did he describe how he got assisted over the balcony? What he held him over the side or something?
CROTHALLHe held him by the scruff of the neck, as I understand it, and was pushing him you know.
DRAYDONWas pushing what?
CROTHALLPushing him against the railing.
DRAYDONYes.
CROTHALLAnd then let him go, but I'd say Tony might have had a few drinks. I think it was Christmas Eve wasn't it?
DRAYDONYes.
CROTHALLAs I understand it.
DRAYDONAnd this is what Tony told you?
CROTHALLYes, but then I,through business some years ago ..."
Mr Draydon then drew the attention of Crothall to what he had been told by the plaintiff:
"DRAYDONAnd what,Tony sort of describes the bouncer as having held him ...
CROTHALLHaving held him.. as I understand it above the scruff of the neck, leaning up against the rail, and you know Tony was obviously almost sitting on the top of this rail, if the rail was a bit around his buttocks wasn't it, supposedly the height of the rail, and he just let him go.
DRAYDONSort of was holding and ...
CROTHALLHolding by the scruff of the neck and just let him go, yeh. Apparently Tony was throwing a few fists around to and let me go, I, you know, I think there was a bit of a ruckus there in terms of a bit of fisticuffs but by the sounds of things ...
DRAYDONHow do you know that there were fisticuffs? Is that what Tony described?
CROTHALLWell Tony said he, yeh, that he was trying to eject him from the hotel or the club and they were grappling with one another apparently outside and Tony was then spun around toward the balcony and pushed up against the balcony and Tony was trying to push himself forward you know, to get at this fellow and he just slipped. He said his feet went out from under him and the guy let him go. It just happened, I guess something like that would happen in a couple of seconds, but that is the way he has always described it to me.
DRAYDONYes, what, more than once?
CROTHALLOh more than once, definitely more than once. I've heard the story probably a dozen times over the years. I've known him probably seven years now and ...
DRAYDONFrom Tony?
CROTHALLHmmm."
In the telephone conversation between Mr Crothall and Mr Kenyon on 28 June 1995, Mr Crothall explained in some detail to Mr Kenyon what he had said to Mr Draydon on 22 June to depart from or qualify the quite express and unequivocal assertions made a couple of days earlier. In the course of this discussion Mr Crothall said, inter alia:
"CROTHALL ... I've heard that many conflicting stories.
KENYONWell yeh, and one of the stories, well, the initial story when I first heard it was that the bouncer biffed him."
CROTHALLThat's right.
KENYONWhich I would say would be the bloody ...
CROTHALLThe truth.
KENYON.Possibly the fair dinkum one.
CROTHALLMaybe ?? It is.
KENYONDid he tell you that?
CROTHALLYeh, well I've heard that story but then he said to me well, did you hear the story about Tony having a scuffle with a bouncer, see. Well I actually heard that and he said, and what happened. I said well I just heard that he had the bouncer by the scruff of the neck, bouncer had him by the scruff of the neck and well, they were shuffling around on the balcony and ah, the bouncer pushed him over. I said that's the story I heard and that's the first time he rang me you see. And he said did Tony tell you. Well, I said, in conversation with other chaps that we were drinking with. He didn't say no, so I always assumed that's how its happened.
KENYON.Yeh, yeh.
CROTHALLSee what I mean?
KENYONYeh.
CROTHALLHe virtually put words into my mouth and later on I thought Jesus, you know, he called me back and said you've been talking to Tony. I said no look I haven't seen Tony for ages and I haven't spoken to him at all. I said I just thought about it and thought it was a bit unfair of me to ... agree to that when I wasn't even there and I said I've heard that many stories bandied around ...".
Later in the course of the discussion:
"KENYONWell I don't know this blokes going to buckle me for sure. He's going to find out where I am (i.e. Mr Draydon).
CROTHALLRight Yeh, but as Tony pointed out when I went to see him yesterday afternoon. you know.
KENYONOh did you?
CROTHALLAnd he was going to call you up and tell him that I was going to call you but he said, he's told me that he's told you to say look he's a mate of mine and you know, I've known him fifteen years and that's about it.
KENYONYeh.
CROTHALLBut you're probably better to say look Tony you know was a chatsy. We've heard heaps of conflicting stories about how, how it happened, but there's no evidence of that. And he wants to know what Tony actually told you, that's what he's after. What Tony told you.
KENYONWell Tony told me the bloody bouncer put him over.
CROTHALLPut him over. Yeh.
KENYONYeh.
CROTHALLIs that what he originally told you?
KENYONYeh.
CROTHALLYeh, well that's changed now.
KENYONYeh.
CROTHALLThat's changed now.
KENYONWell yeh, because the bloody .. you know you wouldn't know what he's bloody told and who he's told.
CROTHALLBecause those bouncers are independent you see. They're um, they didn't work for Twains, they were an independent mob, security mob
...
So they can't pin they can't pin a tail on them can they?
KENYONHardly.
CROTHALLThey're not in business any more you see, so, and who ran the business at that particular time. I guess they can find those things out, but the original owners could be dead or they could be overseas or they could be ah, anything. I mean how are they going to ... how are they going to get insurance money from them, if at the time they were insured but they're not any longer and the insurance company they used is defunct, you know.
KENYONYeh
CROTHALLI mean its so messy. It's very complicated. As I pointed out to Tony in getting advices from the office here from two of the lawyers, that the railing is the answer to the whole thing. I mean the railing was below and ... the regulation height and they built it up some 2 months later and they admitted that they have got admissions there from the engineers and council that it was too low.
KENYONYeh.
CROTHALLAnd they went and built the thing up a couple of months later so ... that's his main thrust in his.. in his claim."
In the further course of discussion:
"CROTHALL He knows it so don't worry, he knows it so he needs support from mates and that's why he's ... but you know, had he said to me, a month or two ago, and said look you may be contacted, you might be asked you might be called as a witness.
KENYONYeh.
CROTHALLFor whatever reason, but you could be subpoenaed.
KENYONYeh.
CROTHALLIf anybody calls you at all, actually his lawyers are remiss in not telling him.
KENYONYeh right.
CROTHALLTo do that a couple of months ago. Get onto your mates who have known you some years and just tell them that I know nothing. Tony's a good mate of mine, but I know nothing.
KENYONYeh, but you wonder what he's told his solicitors.
CROTHALLOh, mate, he'd be chopping and changing all the time.
KENYONI doubt that he told them the bloody true story.
CROTHALLI think what happened down the track is that he did actually tell them the true story.
KENYONYou reckon?
CROTHALLAbsolutely, I reckon he did some years ago. And they have looked into it further over a couple of years and found that they can't get anywhere at that level because ah, the guy was working as a subcontractor or something and you know what I mean?
KENYONYeh, yeh.
CROTHALLAnd said, well we can't pin the tail on him. So we're going to have to take another tack. And I reckon that's what they're after you see. I reckon the other side know this is what's happened. Pretty cunning.
Later in the conversation Crothall observed:
"CROTHALL But, you know, as the lawyers said to me here, they said, you know, by doing what you've done or saying what you've said, you'll destroy your own credibility when they call you.
KENYONWell I am not going to get up on a witness and perjure myself.
CROTHALLNo way, no.
KENYONAre you?
CROTHALLNo way, no. No you can't refuse not to give evidence if they call you.
KENYONWell if they subpoena you, you're buggered.
CROTHALLYou're buggered. And Tony reckons its going to happen to me for sure. So, I mean, the first conversation when I had with this guy, um, this bloody, I tell you what very, very messy, very messy let me tell you, um, as if we were old pals, you know.
KENYONYeh right. Well they're good operators these buggers.
CROTHALLI told Tony, very good operators. I told Tony I said, I'm sorry, but that's what was said, and ah,
KENYONYou thought you were doing him a good turn.
CROTHALLI thought I was doing ... yeh, that's right. Oh Jesus he says, why didn't you tell me. I said I didn't know. He started dropping Mike and your name and everybody else's name ... So he's called me back, say about a week later and maybe to record it. I don't know. You're supposed to tell somebody if you're going to record the conversation. And I said look I said I had a lot of thought about it and he said you've been speaking to Tony. I said I haven't been speaking to him at all. He said are you sure? I said of course I'm sure. He said, well you do work for a solicitor. I said, well yes, of course I do, but there have been that many conflicting stories from various people.
KENYONYeh right.
CROTHALLThat how would I know what was right and what I said was probably totally wrong. It was only hearsay, my friend I said and I really can't make any comment at all. And then I've heard lots of stories. Well, more stories than you told me the other day.
KENYONYeh, well.
CROTHALLYou know what I mean?
KENYONYeh."
Mr Crothall then gave an account as to how he had endeavoured to qualify what he had initially told to Mr Draydon. Later on after discussing what might happen while witnesses were being cross-examined in court, the following conversation took place:
"KENYONAnd then the next witness comes up and he says oh well I know how it happened and they say well you've been telling fucking lies Kenyon.
CROTHALLThat's right, yes.
KENYONAnd they'll say the same about you.
CROTHALLI'll only say I heard that story, you know, I mean if its run by me, which it will be I'll say look I heard that story, but it could well be hearsay. I don't know how true it is because I wasn't there. That is one of the stories I heard, but then I've also heard another story that he, he walked through the door which was facing to the right and the balcony was to the left, there was a big group of people on the balcony and as he squeezed through on the balcony side he fell over the balcony, over the balcony, that's another story I've heard.
...
CROTHALLAnd he, yeh, and his hip was rubbing up against, you can remember his hip rubbing up against the rail right, as he was squeezing through the crowd to go down the stairs and leave, and just went over the edge. Now that was another one. Umm, so it's difficult, isn't it.
KENYONYeh, of course.
CROTHALLBut what it's going to come down to.
KENYONAnd if perjury puts you in the can ...
CROTHALLYeh, I know it does. But you know what it's going to come back to, credibility in terms of his drinking
...
CROTHALLThe point with perjuring yourself though.
KENYONOh shit, I'm not going to do that and I don't think anybody else will.
CROTHALLBut I'm gonna just stick to that story and the story that he was also walking, he can recall, see what he's saying is that the bouncer incident happened on another floor and then they the bouncer said right, get out, I'll give you one more chance. Get out, I'll let you go now, and if you don't leave well I'm going to do something about it. Right.
KENYONYeh right.
CROTHALLSo he then walked down to the next floor, went to the exit door, the exit door was open to the right of whole people, a lot of people on the balcony trying to get in and out or whatever he can't remember, scraped along the railing with his hip, you know trying to get through and just hoppled over the edge because he had slippery shoes on. That's another story, I mean."
It is convenient now to turn to part of the recorded conversation between Kenyon and the plaintiff which occurred on 27 June 1995 - the day before the conversation between Kenyon and Crothall. Obviously by this time the plaintiff was aware of what Crothall had told Mr Draydon on 19 June 1995 and of course it was the day before Kenyon had the telephone conversation with Crothall, to which I have just referred.
Obviously the discussion between Kenyon and the plaintiff concerned what Kenyon should say to Mr Draydon if approached by him. The following are excerpts only from a very long conversation:"KENYONSo you know, what the bloody hell do I, what do I tell him. I don't want to ...
PLAINTIFFNothing.
KENYONWhat do you mean nothing?
PLAINTIFFYou know what you know, nothing.
KENYONHow do you mean, I can't be your bloody mate for 12 years and know nothing.
PLAINTIFFOh no, just that I fell off, fell off the Mark.
KENYONYeh, but what story do I tell him, I mean, you know, do I tell him the same as Crothall did?
PLAINTIFFNo.
KENYONWell, what did Crothall actually tell him?
PLAINTIFFHe told him that fucking bouncers were involved and all that sort of shit.
KENYONWell, wasn't there a bouncer involved?
PLAINTIFFNo, I was leaving the place in a hurry because there was a bouncer chasing me, but that was by the by. I came out the place and leant against the railing and went over the railing. I fell.
...
KENYONOh, Jesus Christ. What happens if I bloody get in the witness box and they ask me what happened?
PLAINTIFFWell you weren't there."
Then later in the conversation referring to the knowledge of another of the plaintiff's friends, the following conversation occurred:
"PLAINTIFF Well if he phones him he phones him. What's he going to do?
KENYONWell I don't know. What's he going to do. What story has he got?
PLAINTIFFThe same story.
KENYONWhat, that you fell over the balcony.
PLAINTIFFYeh.
KENYONNot that the bouncer bounced you off the balcony.
PLAINTIFFNo.
KENYONJesus Christ mate. What happens if they put me in the bloody witness box? They come up with somebody that comes up with a bloody story that the bouncer put you over the bloody balcony.
PLAINTIFFBut the bouncer didn't put me over the balcony.
KENYONBut that's one of the stories that you told me, that he put you over the bloody balcony.
PLAINTIFFBut he didn't.
KENYONOh shit. Well what if somebody gets up there and says.
PLAINTIFFBut I have seen another bouncer who was there that particular night and I've lost his bloody card. He was working at the Honda dealership and he, he knew all about it and he said that there were.. he was upstairs when I went over the balcony and that was John Hall
...
KENYONOh shit, I don't know mate, far out. This bloke's going to bloody chase me for sure. I'm buggered if I know. What did Crothall do when he when he's when you went back to him. Did Crothall talk to your solicitor?
PLAINTIFFHe's going to yes.
KENYONHe's going to go to.
PLAINTIFFYeh..
KENYONAnd what's he going to say because you know if his story's different to bloody mine, um, phew...
PLAINTIFFWell Crothall doesn't know you.
KENYONOf course he bloody knows me.
PLAINTIFFWell yeh, but not that well. You only met one another once or twice
...
PLAINTIFFSee the situation is this that if it turns into a criminal charge, um, I get fuck all.
KENYONWell, is that why you didn't sue the bouncer?
PLAINTIFFYou can't sue the bouncer, the bouncer hasn't got any money.
KENYONWell sue the bouncer employed by the bloody ...
PLAINTIFFBut the bouncer had nothing to do with it. I actually fell over the balcony.
Later on the conversation proceeded.
PLAINTIFFNow he was the guy that rang the ambulance.
KENYONWho?
PLAINTIFFThat John Hall.
KENYONWhat the bloke that put you over the ...
PLAINTIFFBut he didn't put me over the balcony.
KENYONYeh but you told me he put you over the bloody balcony.
PLAINTIFFBut he didn't ... he ... what he did I went down the stairs in a hurry and I turned right and I caught the railing with me hip and over I went.
KENYONOh shit, I'm more bloody confused. I don't know what to tell this bloody bloke. I mean you've told me several times that he's bloody put you over the bloody balcony, the arse hole. What have you told you bloody solicitor?
PLAINTIFFExactly that.
KENYONWhat that he put you over the balcony?
PLAINTIFFNo. That I came out of the club, I turned right I lent against the railing, me feet went from under me and I went over the balcony. That's the statement I made in an Affidavit."
Later the conversation proceeded:
KENYONOh right. Right. Alright mate, well I.. all I can do is sit back in the bloody traces and hope.
PLAINTIFFThere's nothing to hope. All you gotta do is ah, tell them the truth and the truth is that I walked out the door, I turned right and fell over the balcony. It's as easy as that.
KENYONYeh, yeh, yeh. I don't know. Who else is he likely to dig up this bloke?
PLAINTIFFI don't care who he digs up, but he can dig who he likes up but he's ... as far as I'm concerned the truth is that I came out the place, I turned right and I fell over the bal.. over the railing."
Later the conversation proceeded:
KENYONWell, I.. I wouldn't have a bloody clue who he's gonna go and talk to but he's.. he's probably digging up a few bloody ghosts that are crook on you.
PLAINTIFFWell it doesn't matter.
KENYONYeh, but you don't know what they're going to bloody tell him.
PLAINTIFFWell I don't care. As long as ... You're my mate. And we've known one another as you said for 12 years. Robin Tiffin, as far as he's concerned I never mentioned anything like that to him and he's known me for 15 years. So if I was going to tell anybody I'd be telling you guys. Crothall I've only known for 5 minutes.
KENYONHmm, Hmm Alright mate. Alright. I'll let you know what happens.
PLAINTIFFBut Crothall is going to rescind it anyway.
KENYONHe's going to what?
PLAINTIFFWell, have they.. what he's going to do is he's going to wait and see if he gets a.. a subpoena.
...
And if he gets a subpoena then he's going to go see my solicitor.
KENYONYeh.
PLAINTIFFOr my barrister.
...
Well, they can't go nothing to you and they can't do nothing to me and they can't ... its our word against theirs.
Later on the conversation proceeded:
KENYONIf he digs some bastard up like you know, bloody Crothall, that you don't know of. Like Crothall's come out and said yeh, the bloody bouncer biffed him and knocked him arse over head over the balcony.
PLAINTIFFNo he didn't say he knocked me over the balcony.
KENYONWhat did he say?
PLAINTIFFThat I ripped away from him and I fell backwards over the balcony.
KENYONOh, that's what he said.
PLAINTIFFYeh.
KENYONHe didn't say that the bouncer biffed you?
PLAINTIFFNo.
KENYONOh right, Alright. Alright mate, Alright, I'll talk to you later. I'd better get back down there.
PLAINTIFFBut, there was, that is an untruth as well.
KENYONBeg your pardon?
PLAINTIFFThat is an untruth as well.
KENYONYeh. Yeh, Hmmm.
PLAINTIFFI fell over it."
The first observation I make about this long telephone conversation between the plaintiff and Kenyon is that at no stage did the plaintiff deny that he had, as Kenyon asserted, informed him on earlier occasions that he had been involved with a bouncer which had led to him falling from the balcony level resulting in his injury. Listening carefully to the manner in which the plaintiff was speaking, I infer that he did not deny what Kenyon asserted because he could not. He regarded Kenyon as a friend who would be willing to assist his case by not giving evidence as to the explanation the plaintiff initially gave for his injury; indeed that he would be prepared to falsely deny that such an explanation had been given. The plaintiff was obviously aware of what Crothall had said and that it was likely that in some fashion the defendants would attempt to use what Crothall had said against him. The plaintiff had obviously discussed with Crothall the way in which Crothall might qualify what he had said to Mr Draydon and had set about to "firm up" friends of his, among whom he numbered Mr Kenyon at that stage at least, to control the damage which he must obviously have perceived had been done to his case by Crothall's disclosure to Mr Draydon.
Before leaving the evidence of Mr Crothall, I observe merely that I reject the evidence he gave as to suggestions made by Mrs Kenyon on the occasion that they met in a Chinese restaurant that she would do her best to destroy what prospects the plaintiff had of succeeding in his action. The likelihood in my view is that this evidence was given merely in an attempt to support the case mounted on behalf of the plaintiff which relied mainly upon the evidence of the plaintiff's wife to destroy the credibility of Mrs Kenyon with respect to the evidence which she gave about admissions made by the plaintiff concerning the origin of his injury and in particular the version of events given by the plaintiff's wife to Mrs Kenyon within a very short time of the plaintiff's regaining consciousness and discussing with his wife the circumstances of his injury.
As well as the admissions proved against the plaintiff I refer also to the statement he made to the police officer investigating his injury in May 1984 to the effect that he could not recall the circumstances in which he fell to sustain his injury and to the statement which he made to a reporter apparently from Gold Coast Bulletin a couple of days later to the effect that he had fallen backwards over the balcony rail. These versions are inconsistent with the evidence which he gave in court. Indeed, the newspaper report (ex. 37) was tendered by counsel for the plaintiff who contended that it was not merely the photograph in it but also the version of events said to have been given to the newspaper reporter by the plaintiff that was admissible in evidence. Some argument occurred as to whether it was admissible for or against the plaintiff. In the view that I take it was certainly not admissible against the defendants with respect to the facts asserted. To the extent that it is admissible because the plaintiff tendered the document, I take the view that it may be used in determining his reliability as a witness because it is yet another statement that he made inconsistent with the evidence which he gave in court.
A critical question for consideration in this case to my mind is the effect to be given to s.101 of the Evidence Act 1977. On the facts of this case that section must be read with s.18 of the Act.
It is convenient to state the provisions of that Act which must be considered in this case.
Section 18 provides:"(1) If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceedings and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it.
(2) However, before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement."
Section 101 of the Act provides, inter alia:
"(1) Where in any proceedings -
(a)a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section ... 18 ...
that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible."
Section 102 of the Act provides:
"In estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this Part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including -
(a)the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and
(b)the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts."
For a discussion of the effect of s.101 of the Act, I refer to the judgment of McPherson J in Savanoff v. Re-car Pty Ltd [1983] Qd R 219 at pp.231-232. There can be no doubt that a previous unsworn statement made by a witness proved, pursuant to s.18 of the Evidence Act becomes evidence of the facts contained in that statement pursuant to s.101 of the Evidence Act - even in proceedings of a criminal nature. In this respect I refer to R v. Lawrie [1986] 2 Qd R 502, per Connolly J at 503; R v. Siedofsky [1989] 1 Qd R 655, per Thomas J at 658; R v. Hoang Nguyen [1989] 2 Qd R 72, per Matthews J at 74; and R v. Parkinson [1990] 1 Qd R 382, per Macrossan CJ at 383 and per Ryan J at 387-388.
Prima facie, in my view, where a witness denies a former out of court statement going to the issue and inconsistent with his evidence then upon proof of that statement under s.18 of the Act, it may be given the same evidentiary effect as would have been given to evidence given by that witness to the effect of that statement.
It goes without saying of course in giving weight to such a statement proved under the Act one must consider the matters specified in s.102 of the Evidence Act.
Upon the facts of the present case, I do not accept the evidence given by the plaintiff as to the circumstances in which he sustained his injury in respect of which he brings this action. There are four reasons why I do not accept it.
He has given a number of versions of the circumstances of his alleged fall. Each version to my mind is inconsistent with the other and each I find improbable. I come to this conclusion not merely upon an analysis of each version given but also having had regard to the demeanour of the plaintiff when he gave evidence.
I am persuaded that the plaintiff did indeed state to his wife the version of events which, although denied by her, was proved to my satisfaction by the evidence of Mrs Kenyon. That version of events was given by the plaintiff to his wife within a relatively short time of his regaining consciousness after the accident. Although not contemporaneous with the events recounted, it was close in point of time to those events and I see no reason why the plaintiff would have said such things had he not then believed them to be true.
I accept that the plaintiff gave a version (or versions) of events to both Mrs Kenyon and Mr Kenyon along the lines which they swore to. On one view that version may be regarded as slightly at variance with the version the plaintiff gave to his wife, which she passed on to Mrs Kenyon initially. The version given to Mr and Mrs Kenyon by the plaintiff after his discharge from hospital made no reference to the proximity of the plaintiff to the stairs at the time he was "biffed" or pushed by the bouncer.
The version given by the plaintiff to Mr Crothall in terms proved to my satisfaction by the first recorded telephone conversation between Mr Crothall and Mr Draydon pursuant to s.18 of the Evidence Act involved statements by the plaintiff that he had been allowed to drop over the railing by the bouncer who had "assisted him" over. In my view this may arguably differ to some extent from the version of events first given by the plaintiff to his wife concerning his proximity to the stairs when he was propelled over. It is not necessarily inconsistent, but it may be. The plaintiff denied making either statement when they were put to him in cross-examination and I get no assistance from his evidence sufficient either to confirm or to resolve any possible inconsistency.
Stated shortly, the plaintiff has not satisfied me of the truth of his evidence. There is no evidence apart from that of the plaintiff which clearly demonstrates that he suffered his injury from a fall from the balcony or from the top of the stairs. This fact was never expressly conceded by the defendants and in the absence of evidence from the plaintiff or some other witness that he did indeed sustain his injury after he fell from the balcony or from the top of the stairs there is just no evidence that he did so. The evidence of the ambulance driver does not place the plaintiff in sufficient proximity either to the stairs or to the balcony in issue to permit an inference that his injuries found when the ambulance officers arrived at the scene in the early hours of the morning of 23 December 1983 were sustained in a fall from it. If he had been found within a couple of feet of the edge of the balcony it may have been permissible to infer that he fell from it having regard to his injury. However, for all the evidence shows, he may have been 10 to 15 feet away from the balcony and/or the stairs leading up to the balcony. Unless some of the plaintiff's evidence on the issue of causation be accepted as reliable, and I am unprepared to so accept it, it is difficult in my view properly to infer that the balcony was necessarily involved in the plaintiff's injury unless weight is given to parts of the admissions proved against him.
The whole case of course was conducted (by the plaintiff) on the basis that he fell from the balcony.
The next matter that must be considered then is whether having regard to all the admissions proved against the plaintiff which involved his being propelled over the balcony rails or the balcony "wall" (Crothall) or over the rail - or wall - of either the balcony or the stairs, according to the version of events he gave to his wife, that is sufficient evidence upon which I may safely find that indeed the plaintiff was propelled over the balcony rail or perhaps over the stair rail or the balcony rail near where the stairs joined onto the balcony. If it is permissible to treat those admissions by the plaintiff as evidence not just against him but also against the defendants who after all proved the admissions quite deliberately after preparing their case to do so, then it will be necessary to determine whether the issue of causation may be determined against the defendants on the basis of one or more of those admissions they proved against the plaintiff.
Section 101 of the Act does not make the facts asserted by the plaintiff in the admissions proved against him, evidence against the defendants. What s.101 does do is make the out of court statements by the witnesses called for the plaintiff proof of the truth of those statements. The only effect of ss.18 and 101 of the Evidence Act is to enable the defendants to prove that the plaintiff did on the occasions specified make admissions to those witnesses that he suffered his injury as the result of involvement with a bouncer at the top of the stairs or on the balcony giving entrance to the nightclub.
Stated shortly, I accept the evidence of Mr and Mrs Kenyon that the plaintiff did make statements to them to the effect that a bouncer had been involved in events on the balcony of the "Top of the Mark" building leading up to his injury. Those statements made no specific reference to the balcony at or near the top of the stairs leading to that balcony.
I treat the contradiction of Mr Crothall under s.18 of the Evidence Act on his denials of admissions made to him by the plaintiff as to the involvement of the bouncer with his injuries as the equivalent of direct evidence by Crothall that the plaintiff did make statements to him of the sort and to the effect of those recounted to Mr Draydon in the recorded telephone conversation of 19 June 1995 which were proved.
I treat the contradiction by Mrs Kenyon of denials made by the plaintiff's wife as to statements made to her by the plaintiff concerning the involvement of the bouncer on or near the stairs to the balcony immediately prior to his sustaining his injury in the same way as I would treat evidence given by the plaintiff's wife that indeed the plaintiff did so inform her within a week or so of regaining consciousness after admission to hospital suffering from injuries, the subject of this action.
Turning now to the question of the use to be made of those statements by the plaintiff inconsistent with the evidence he gave in court, it is unnecessary to engage in a lengthy historical examination of rules relating to the use of self-serving portions of an admission made by and tendered against a party in proof of issues the onus of which is on that party.
The whole matter was considered by the High Court in Lopes v. Taylor (1970) 44 ALJR 412. There was a difference of view expressed by the justices in that case. However, the views expressed by Gibbs J, as he then was, at 421 have since been adopted and applied in this State. I refer only to what was said in R v. Cox [1986] 2 Qd R 55 per Thomas J at 63-65 and in R v. Beck [1990] 1 Qd R 30 per Macrossan CJ at 33.
Stated shortly, I treat all the statements of the plaintiff inconsistent with the evidence he gave in court proved against him either directly by Mr and Mrs Kenyon or indirectly through cross-examination of the plaintiff's wife and Mr Crothall, calling in aid the provisions of ss.18 and 101 of the Evidence Act as being evidence of the truth of the matters stated by the plaintiff on those various occasions. I proceed on the basis however that the weight to be given to various parts of those out of court statements made by the plaintiff and proved against him must be determined against the background of the whole of the evidence and importantly the presentation by the plaintiff of what I infer to have been a case largely fabricated to overcome the perceived problems which Mr Crothall discussed with Mr Kenyon in his recorded telephone conversation on 28 June 1995 which reflected those discussed in the recorded telephone conversation between the plaintiff and Mr Kenyon on 27 June 1995.
Looking at the whole of the material I am prepared to infer that the plaintiff did suffer injury when he fell from or near the level of the balcony giving access to Twain's Nightclub shortly before the arrival of the ambulance officers to render him assistance at about 2 a.m. on the morning of 23 December 1983.
In coming to this conclusion I have regard to the evidence of Mrs McCracken that some hours prior to his fall he was in the nightclub obviously affected by liquor. I reject the evidence of Mr Robbins called for the plaintiff. I am not persuaded that he ever saw the plaintiff in the nightclub. I take the view that Robbins like Crothall gave evidence which he believed would help the plaintiff without any regard for its truthfulness. He brazenly stood by what he swore in evidence even when contradicted by his recorded telephone conversation. I also give weight to the statement I am persuaded the plaintiff made to his wife when he regained consciousness about a month after he sustained injury. At that time in my view the circumstances make it likely that he would have had little incentive to conceal or misrepresent to his wife how he came to sustain his injury. The only possible reason to do so might be that he sought to blame some other person for his fall and subsequent injury rather than to acknowledge to his wife in the circumstances that it was entirely due to his own carelessness or intoxication that he fell. In making this observation I would assume that at the time he made this statement to his wife, the plaintiff would have had no reason to believe that any other person may arguably have been responsible for his injury by reason only of the height of the balcony rail. Indeed, on the evidence this appears to have made an impression on the plaintiff and in particular on his wife, when they visited the balcony upon the plaintiff's discharge from hospital. The plaintiff's wife seemed anxious to volunteer that she could not believe the "ridiculous" height of the balcony rail when she first observed it. Although she denied that she had ever discussed with her husband how he had come to go over the rail, I take the view that her unsolicited observation about the height of the rail is more than consistent with Crothall's observation to Mr Kenyon in the recorded telephone conversation "that the railing is the answer to the whole thing".
The next point for determination however is whether it should be inferred from the plaintiff's statements made to Mr and Mrs Kenyon, and to Mr Crothall that he was pushed backwards so that his buttocks were resting on top of the rail before he finally went over it with the assistance of the bouncer rather than that he had been "king hit" by the bouncer at the top of the stairs, from the statement which he made to his wife shortly after he recovered consciousness in the hospital.
As I have already intimated, it is my view that there is not necessarily an inconsistency between the version of events given by the plaintiff to Mr and Mrs Kenyon and Mr Crothall and that which he gave to his wife. On one view and if the various versions are each considered in isolation, it might be inferred that the plaintiff was propelled over the rail by the bouncer some distance away from the stairs. This version would involve inferring that the plaintiff became involved with the bouncer after leaving the balcony doorway giving access to the nightclub in a position upon the balcony between that doorway and the balcony rail and without the plaintiff reaching or at least walking up or down the stairway giving access from the street to that balcony. To the extent that one drew such an inference that would in my view be inconsistent with the version of events given by the plaintiff to his wife that he was king hit when he walked back up the stairs and took a swing at the bouncer after having been sent on his way by him.
If I were compelled to decide which of the admissions or statements made by the plaintiff was most likely to be correct, I would choose that which he made to his wife while in hospital. I would do so for substantially the same reasons as I would rely upon his statement to her that he had indeed fallen from a position at or about balcony level at the top of the stairs.
Accepting that prior to the plaintiff being "king hit" by the bouncer, he had "stumbled down the stairs" before deciding to go back up and become involved in "fisticuffs" (to use Mr Crothall's term), I think it likely that the bouncer would have been standing on the balcony at the top of the stairs and would have done his best to retain the advantage which that position would give him over the plaintiff, who was 6 foot 3 inches tall, as he mounted the stairs in a belligerent fashion to "take a swing at" him after just being sent on his way down the stairs. The evidence is very imprecise having regard to the way in which the admission has been proved. Both the plaintiff and his wife denied that he ever made any such admission. I reject those denials. However the denials leave the admission standing without the sort of detailed analysis and examination to which it may have been subjected had the plaintiff conceded that he did make it.
I have considered whether I might infer that indeed the plaintiff walked to the top of the stairs and took a swing at the bouncer from a position on the balcony beside or in front of the balustrade running from the top of the stairs towards the nightclub door. If I were persuaded that were probably so then I would give careful consideration to the evidence of Mr McDonald which was to the effect that had the balcony rail been constructed to a height of 1050 mm, instead of 850 mm, it may have been more difficult for a bouncer to push the plaintiff over it. The effect of Mr McDonald's evidence was that it may have been a little more difficult, although not much, having regard to the relative heights of the top of the balcony rail and the plaintiff and the distribution of his body weight. The problem however is that the plaintiff told his wife nothing about being propelled over a rail as he told Mr and Mrs Kenyon and Mr Crothall. He told her that the bouncer "king hit" him and sent him over the railing.
He may just as easily have been referring to the railing of the stairs shown in the photograph which is ex. 45. The same railing on the stairs is shown in the background of the photograph of the plaintiff in his wheelchair with his arm resting on the balustrade railing well away from the stairs in the Gold Coast Bulletin article, which is ex.37. It might be said that the stairs giving access from street level to the balcony at the time of the plaintiff's injury did not have a "railing". It is true to say that if one refers to the top of the wall at the side of the stairs as a stair railing, it is a railing of a quite different kind from that to be found on the balcony. However, in my view, in the context of the admission which is not merely unexplained by the plaintiff but indeed denied by him on oath, I have come to the conclusion that in making this statement which he did to his wife, he might well have been referring to the handrail on the side of the stairs shown in the photographs as the "railing". The essence of a stair railing is an enclosure of the side of the stairway to prevent people falling off it. The top of that enclosure is referred to popularly as the handrail of the stairs. I keep in mind also that the plaintiff told Crothall, inter alia, that the bouncer had him "with his back to the wall that he ultimately toppled over". Looking at the photograph of the balustrade and stairs, which is ex. 45, reference to toppling over "a wall" seems more apposite to the handrail of the stairs than the railing on the balustrade.
In the circumstances, if I were compelled to make a positive finding upon all the admissions proved against the plaintiff as to the site from which he probably fell, I would have difficulty in choosing between the rail on the balcony balustrade at the top of the stairs and the handrail on the side of the stairs some little distance removed from the balcony edge. I think it more than likely on the unsatisfactory state of the evidence and giving significant weight to what the plaintiff told his wife, that the altercation occurred with the bouncer while the plaintiff was still on or partly on the stairs and while the bouncer still retained the advantage of height, which he had while standing on the balcony at the top of the stairway. One must take care in situations of this kind where acceptable evidence is very flimsy to avoid becoming involved in speculation when attempting to draw inferences.
I am unpersuaded that it would be more probable that the plaintiff was standing on the balcony level and fell across the balcony railing to the ground level than it would be that he was standing or climbing on and near the top of the stairs near the balcony level when he was hit by the bouncer and fell across the hand rail of the stairs. I think the likelihood is that if he did fall across the handrail of the stairs giving access to the balcony from street level, it was that handrail which was closer to the door giving access to the nightclub from the balcony - that is the handrail to the right hand side of the stairs as one climbed them from ground level to the balcony.
No evidence was led as to the height of the handrail on the stairs. Looking at the photographs however to which I have referred and particularly at ex. 45, it seems likely that the height of the handrail on the stairs was probably about the height which Mr McDonald said the balcony rail should have been above the balcony floor at the time of the plaintiff's injury. In any event it was no part of the plaintiff's case that he was put over the handrail of the stairs by a bouncer. Indeed, it was no part of his case that a bouncer had anything to do with him falling from approximately balcony level to the ground below, resulting in his injury.
It is possible that indeed the plaintiff's admission to his wife that the bouncer had "king hit" him was less accurate than assertions subsequently made to Mr Crothall for example that the bouncer had him by the scruff of the neck and held him over a railing and let him fall to the ground below. It may be that that version of events more accurately described what the bouncer did when the plaintiff was coming up the stairs to take a swing at him. The plaintiff of course had been a bouncer himself before he came to Australia and one might think had some knowledge of and experience in altercations involving bouncers. According to his statement to his wife he was very drunk at the time and I find that he was then significantly affected by alcohol. There is no suggestion the bouncer was affected by liquor at all. If the plaintiff in his drunkenness did swing a punch at a bouncer and missed him, it seems to me that it might well have been the case that the bouncer did take him by the scruff of the neck and push him, perhaps too vigorously, against the handrail on the side of the stairs resulting in his fall to the ground. Again, however, one must carefully choose between drawing inferences from very imprecise facts of the sort that might be extracted from the plaintiff's statements and merely speculating as to what is the true explanation of events leading to his injury.
I am really unpersuaded upon the whole of the evidence as to just how the plaintiff suffered his injury. I do not accept his evidence on the issue of causation and it is only by going through various statements which he made of the events leading to his injury - all of which he denied on oath - that it is possible to attempt to make out any case for him on the issue of causation. He did not attempt to make out such a case himself, which indeed would have been inconsistent with his evidence as to the circumstances in which he sustained his injury.
Upon the whole of the evidence of the plaintiff and upon all his inconsistent out of court statements proved against him, he has failed to satisfy me on the balance of probabilities just what were the events which led to his falling to his injury, whether he fell from the balcony floor near the stairs or from the top of the stairs near that floor to the ground below. To the extent that any one of the versions he gave to his wife or to Mr and Mrs Kenyon or to Mr Crothall is correct, I take the view that the version he gave to his wife is most likely to be true and that when the plaintiff was hit by the bouncer, the bouncer was on the balcony at the top of the stairs and the plaintiff was on the stairs near the top: if that was the way in which he suffered his injury the inadequate height of the balustrade railing on the balcony to which the evidence in his case was directed was not a cause of that injury.
I dismiss the plaintiff's claim for damages against each defendant for negligence based upon the inadequate height of the balcony rail shown in ex. 45.
A great deal of time and effort was spent in establishing the quantum of the plaintiff's claim. I was quite unimpressed with the evidence which he and his wife gave. I found both of them quite unimpressive witnesses. In my view, the evidence they gave was exaggerated and in some respects quite untrue. It is clear that the plaintiff's wife quite deliberately destroyed records which she had in her possession relating to the conduct of business by and moneys paid to the plaintiff after he recovered sufficiently to work in business. I infer that the destruction of these records was deliberately effected to assist the plaintiff's contention that he had suffered a complete loss of earning capacity as a result of his injuries. I infer that taxation returns tendered were prepared only for the purpose of making evidence to support his claim and I reject them as evidence of any value.
It is clear from the recorded discussion of Mr Crothall and Mr Kenyon that the plaintiff was alive to problems that he might have to overcome having regard to benefits that he had received while managing a video hire business for a couple of years. These benefits included the provision of cars for himself and his wife.
I treat with considerable reservation the evidence given by Mr Rodda as to the plaintiff's skill in real estate and his potential earning capacity in that area. Mr Rodda was one of the witnesses whose expected evidence was discussed by the plaintiff with Mr Kenyon in the recorded telephone conversation, the transcript of which is ex. 34A. Mr Robbins and Mr Tiffin, the accountant who prepared the plaintiff's taxation returns (ex. 27) are two of his other friends, to whose assistance in preparation of his case the plaintiff referred in this recorded conversation.
In the four years preceding his injury, while living in rented accommodation on the Gold Coast, the plaintiff had been unemployed for 13 months. His wife worked in a fish and chip shop for Mr and Mrs Kenyon and the plaintiff engaged in relatively unskilled work selling caravans for 12 months. He then sold cars for six months. He then commenced to sell real estate and did this for 12 months. This was the first occasion on which he had sold real estate, although apparently he had sold white goods, motor vehicles and other odds and ends before coming to Australia from England. He then became engaged in "the video business", where sales were made by "young men and women on a commission basis". He remained involved in this business for six or seven months and then became involved once more in real estate and was so engaged on a commission basis when he was injured.
At the time of injury the plaintiff was 39 years of age with only a basic education and no formal training or qualification. Neither he nor his wife appear to have accumulated any savings to that time.
I am quite unimpressed by the glowing outline of the plaintiff's skills, capacities and potential advanced on his behalf. There is nothing to indicate that he had achieved any but a very moderate standard of living up to the time of his accident or that he apparently had, apart from enthusiasm and confidence in his own capacity to sell things, much upon which to base his expectation of financial reward in the future.
The only business which the plaintiff managed on the Gold Coast was a video business which he managed to sell to Mr Jones. He and his wife lived off that business which he "managed", but which eventually went broke consuming all the life savings of Mr Jones. While undoubtedly the plaintiff and his wife made some income from that business, although the extent of that income was hidden, in my view quite deliberately in the presentation of the plaintiff's case, I do not regard that income as reflecting a business capacity in the plaintiff as much as his ability to manipulate trusting people to his own advantage at considerable expense to them.
It is clear on the evidence that the onset of atherosclerosis in the plaintiff had nothing whatever to do with the injuries he suffered in his fall. It is equally clear that the condition was seriously aggravated by his excessive smoking, even after he had been medically advised of the consequences upon his atherosclerotic condition should he continue this habit. In my view, there is no reason to believe that the plaintiff would not have smoked contrary to medical advice, quite apart from his paraplegia. I reject the contention that had it not been for the plaintiff's injury he may not have smoked excessively and therefore not arguably advanced the onset of atherosclerosis to the extent necessitating an amputation of his leg. In any event, the defendants could not be held responsible in any way for whatever effect the plaintiff's smoking played on his atherosclerotic condition. He made the decision to smoke contrary to medical advice and I reject the contention that his decision is some way attributable to the paraplegia he suffered in his fall. In this respect I refer only to the statement of principle in State Rail Authority of New South Wales v. Wiegold (1991) 25 NSWLR 500 and Beard v. Richmond (1987) Aust Torts Reports paras. 80-129.
Having said all that however it is clear that the plaintiff suffered very significant injuries which have rendered him paraplegic and which on any view have caused him a significant loss of earning capacity both pre‑trial and post-trial. The whole case is complicated by the fact that quite unconnected with his paraplegia the plaintiff has suffered atherosclerosis and this condition has deteriorated over the years that have passed since the time he suffered the injury which rendered him paraplegic.
In 1992 as the result of atherosclerosis the plaintiff had his right leg amputated mid way between the knee and the hip. There is some prospect that an amputation of the left leg might follow as the result of deterioration of his atherosclerotic condition.
Much of the medical treatment the plaintiff has received since the time of his injury in 1983 has been for his atherosclerotic condition which is quite independent of his paraplegia. I say that subject to this qualification that his atherosclerosis may have progressed marginally less rapidly than it has, had his paraplegia not prevented him from taking regular exercise using his legs.
According to Dr Mellick, had the plaintiff not developed paraplegia, his atherosclerosis would have reduced his life expectancy to about 30 years. According to Dr Dinnen with his condition involving both paraplegia and atherosclerosis, he has a life expectancy of 10 to 15 years. Dr Dinnen's view, however, must be considered in the light of a real prospect that complications could arise at anytime which might lead to the amputation of the plaintiff's left leg which with expected complications would make it more than likely that he would die.
What I propose to do therefore in assessing damages is to make a special discount for the plaintiff's atherosclerotic condition, that might at any time with only a few weeks or a few months notice, lead to the development of very serious and life threatening complications. I propose to apply a discount of one-third to accommodate this special risk under which the plaintiff will labour for the remaining years of his life which, for the purpose of assessing damages, I fix at a period of 12 years.
With respect to his pre-trial loss of earnings, I find that for the first three years after his accident the plaintiff was unable to earn income. I disregard the content of the tax returns tendered on behalf of the plaintiff. Upon the evidence, I am persuaded that they were prepared only for the purpose of this trial and are worthless. I assess his loss of earning capacity in the sum of $350 per week for this period of three years in the sum of $54,000.
With respect to the following three years after his injury when he was involved in various business activities, I am unpersuaded as to what, if any, loss he sustained then. It is in respect of this period that I am satisfied that there was a deliberate effort made by the plaintiff and his wife to mislead the court with respect to the plaintiff's earning capacity. All records which might have given any indication of his earning capacity were destroyed. A conscious effort seems to have been made to avoid the plaintiff being paid any recorded benefit for the work he did. He gave evidence that he would value that work at about $500 per week. As well as that, he and his wife each received the use of a car provided, maintained and presumably run by the business in which the plaintiff was involved. I am unpersuaded on the material that he suffered any loss of earning capacity in this period of time.
With respect to the six years that has elapsed since he ceased to obtain income from any business activity, the matter is complicated by the fact that in 1992, as the result of atherosclerotic deterioration in his right leg, he had an amputation of that leg between the knee and hip. I am satisfied on the evidence that it is likely that he would have had that amputation as the result of the development of that atherosclerotic condition, quite apart of the paraplegia which he sustained in 1983. The evidence, in my view, is overwhelming that he suffered from a significant atherosclerotic condition which was greatly aggravated by the great quantity of cigarettes which he consumed - even after being advised not to. It is clear that quite apart from his paraplegia, had he sustained his amputation in 1992 in any event, it would have very significantly impaired his earning capacity in selling real estate or engaging in any other sort of business activity for which his education and experience suited him. Adopting a broad brush approach therefore, I fix his loss of earning capacity between 1989 and 1992 at $350 per week - $54,000.
Between the time of amputation of his right leg and date of trial the plaintiff had a great deal of trouble obviously with his atherosclerosis. Much of the medical treatment he has received over that period of time seems to have been devoted to treatment for that condition and not much for his paraplegic condition.
Adopting a broad brush approach therefore, I assess his loss of earning capacity between 1992 and 1995 - a period of three years in the sum of $150 per week, which amounts to $23,400.
I assess therefore his loss of earning capacity between 1989 and 1995 in the sum of $77,400.
Between date of injury and date of trial the plaintiff received Social Security benefits in the sum of $73,572.
The plaintiff did receive a small amount of income by making available to persons involved in real estate dealing, part of his residential premises. It does not seem to me that it would be appropriate to take this into account in determining upon what sum interest should be calculated on lost earnings.
There has been a significant unexplained delay by the plaintiff in the prosecution of his action.
With respect to future loss of earnings, the loss of $250 per week for a period of 12 years amounts to the sum of $117,750. By reason of the special risk at which the plaintiff will live during that period, I discount this sum by one-third to the sum of $78,500.
I assess special damages according to Schedule "A" to this judgment in the sum of $32,885.40. Hospital fees of $14,114 in respect of the treatment received for paraplegia are not payable under The Public Hospitals Fees and Charges Regulations in force at the relevant time.
I assess future capital outlays necessary to provide amenities for the plaintiff's paraplegic condition in the sum of $86,250 according to Schedule "B" to this judgment.
I assess the present value of future weekly expenses to be incurred by the plaintiff in accord with Schedule "C" to this judgment in the sum of $71,121. I discount that sum by one-third to the sum of $47,414.
With respect to assessment of damages for pain, suffering and loss of amenities of life, I take the view that although the plaintiff may well have had lots of disabling limitations on his enjoyment of life by reason of the development of his atherosclerotic condition, that condition has been made significantly more disabling by his paraplegia.
I assess for his pain, suffering and loss of amenities of life resulting only from his paraplegia in the sum of $100,000. I apportion 60% of that loss as pre-trial loss.
I assess interest at 2% on $60,000 for 9 years in the sum of $10,800.
With respect to the plaintiff's claim under Griffiths v. Kerkemeyer, adopting a domestic care rate of $5 per hour, I allow 8 hours per day for 7 days per week for the first two years after his injury. I assess that sum at $29,000.
With respect to the allowance from his third year to date of trial I allow $7 per hour for a period of 9.5 years for 2 hours per day, 7 days per week. In adopting only 9.5 years I take into account the time the plaintiff has spent in hospital and in receipt of treatment for his atherosclerotic condition. This amounts to $38,600. I assess therefore the plaintiff's pre-trial Griffiths v. Kerkemeyer allowance in the sum of $67,600. I award interest on that sum at the rate of 2% per annum for 9 years which is $12,168.
With respect to the plaintiff's future Griffiths v. Kerkemeyer allowance I assess his need at 2 hours per day, 7 days per week at $9.50 per hour, i.e. $133.00 per week.
The present value of this weekly expenditure for a period of 12 years is $62,643. Having regard to the imminent risk of death which, on the medical evidence, the plaintiff runs, I reduce this sum by one-third to $41,762.
On the evidence I find that the plaintiff's life expectancy may have been reduced to some extent by his paraplegia. On the medical evidence I think it more than likely that his atherosclerotic condition has had a far greater effect on his life expectancy than his paraplegia. The medical evidence is that it is likely complications arising from his atherosclerotic condition, which puts him at constant risk of further amputation and/or death. However, there is evidence to the effect that on one view of matters the plaintiff's life expectancy may have been reduced on some sort of statistical analysis by his paraplegia. On that basis I assess damages for loss of expectation of life in the sum of $1,500.
Stated shortly therefore I assess the plaintiff's damages as follows:
Loss of pre-trial earning capacity
1984 - 1986 (3 yrs) $54,000
1990 - 1992 (3 yrs) $54,000
1992 - 1995 (3 yrs) $23,400 $131,400.00
Interest at 12% p.a. on $57828 of that sum for 4.5 yrs $31,227.00
Loss of future earning capacity ($250 p.w. for 12 years discounted by _) $78,500.00
Special damages per Schedule "A" $32,885.40
Future capital outlay per Schedule "B" $86,250.00
Future weekly expenses per Schedule "C" (discounted by _) $47,414.00
Pain, suffering and loss of amenities of life $100,000.00
Interest at 2% on $60,000 for 9 years $10,800.00
Pre-trial Griffiths v. Kerkemeyer
$5 x 8 hrs per day for 7 days per week x first 2 years $29,000
$7 x 2 hrs per day for 7 days per week x 9.5 years $38,600 $67,600.00
Interest at 2% for 9 years $12,168.00
Future Griffiths v. Kerkemeyer (reduced by _) $41,762.00
Damages for loss of expectation of life $1,500.00
TOTAL $641,506.40
I give judgment for the defendants.
Schedule "A"
SPECIAL DAMAGES
Ambulance $403.50
Princess Alexandra Hospital - Paraplegia $14,114.00 (Not payable)
- Vascular $ 9,196.00 $0.00
Queensland Department of Health $5,920.14
Drainage Bags, Urocare Bags $598.76
Vehicle Handy Controls $470.00
Electic Hoist and Installation $1,250.00
Security Alarm and Installation $1,267.00
Garage Door Opener $520.00
Waterbed Factory $400.00
Dr Clarke $273.00
Blue Nursing Service - Paraplegia $4,474.00
- Vascular (not allowed $3,153)
Medicare $18,109 - Paraplegia say $9,000.00
- Vascular (not allowed)
Pharmaceuticals $4,884.00
Morris Surgicals $3,425.00
$32,885.40
Schedule "B"
FUTURE CAPITAL COSTS
* Electric Wheelchair (post 5 yrs) $6,268.00
(8,000 - 1 only every 10 yrs)
* Wymo Hoist (1 only) $1,450.00
* Flocon Auto Lifter (1 only) $1,800.00
*Carter Master Hoist (1 only) $8,000.00
* Mini Oxford Hoist (1 only) $2,405.00
* Over Bed Rings $238.00
* Modified Shower Chair $998.00
* Thermostatic Mixer $350.00
* Home Modifications $61,155.00
* Extra Cost Air Fares (1 trip) $3,586.00
$86,250.00
Schedule "C"
FUTURE WEEKLY EXPENSES
Manual Wheelchair (post 5 yrs) $10 per week
($2,600 every 5 yrs)
Maintenance on Wheelchair ($100 every year) $0.96
Maintenance on Electric Wheelchair (post 5 yrs) $1.28/wk
Monarch Hand Controls (500 every 8 yrs) $1.20/wk
Maintenance on Wymo Hoist $1.92/wk
The Slider $0.61
Maintenance of Carter Master Hoist $4.80/wk
Maintenance of Mini Oxford Hoist $1.92/wk
Jay Cushion $1.34/wk
Extra Jell Pads $3.25/wk
Back Rest $3.36/wk
Jay Protector $1.59
Sheepskins $240/yr $4.61/wk
Adjustable Medi-bed Plaintiff doesn't want one
Maintenance Shower Chair $0.96/wk
Shower Rose Included in Deshons
Catheters $3.08/wk
Leg Bag $11.91/wk
O/N Urocare Drainage Bag $0.91/wk
Assorted Connectors, Spigots & Syringes $0.57/wk
Disposable Bags $1.05/wk
KY Jelly $6.80/wk
Disposable Gloves $4.71/wk
Small Plastic Tray $0.19/wk
Milton Solution $2.00/wk
Incontinence Pads $1.40/wk
Catheter Packs $1.00/wk
Airconditioning - Included in Deshon's Report
Security System - Included in Deshon's Report
Duoderm, Betedene, Dressings etc $10.00/wk
House Maintenance and Cleaning and Garden
Maintenance $30.76/wk
Airconditioning in one Room Maintenance, Power etc
(Deshon's Evidence) $3.36/wk
Future Surgery/Hospitalisation ($5,600 every 5 yrs) $21.54/wk
Future Blue Nurses (No Vascular) say 1 visit/2 weeks $13.50
$150.58/wk
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