Strachan v McPhee
[2010] QSC 439
•22 November 2010
SUPREME COURT OF QUEENSLAND
CITATION:
Strachan v McPhee & Ors [2010] QSC 439
PARTIES:
GRAHAM EDWARD STRACHAN
(plaintiff)
v
IAN ROSS MCPHEE AND ELIZABETH MARGARET MCPHEE
(first defendant)
DAYGOLD PTY LTD
ACN 010 621 404
(second defendant)
FILE NO/S:
BS8920/07
DIVISION:
Trial Division
PROCEEDING:
Trial
DELIVERED ON:
22 November 2010
DELIVERED AT:
Brisbane
HEARING DATE:
15 – 17 November 2010
JUDGE:
Douglas J
ORDER:
Action dismissed with costs, including reserved costs, if any.
CATCHWORDS:
TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – WEIGHT AND CREDIBILITY OF EVIDENCE – where the plaintiff suffered a head injury on the defendants’ property – where the head injury eventually caused him to suffer a retinal detachment, leaving him almost completely blind in his right eye – where the plaintiff’s case was that he fell and hit his head against the wall of a house because of a dangerous hole in the driveway leading to the entrance to the house – where it was not disputed that the defendants, as occupiers of the premises, owed a duty of care to the plaintiff – whether the evidence established on the balance of probabilities that the accident occurred in the circumstances alleged by the plaintiff
DAMAGES – MEASURE AND REMOTENESS OF
DAMAGES IN ACTIONS FOR TORT – MEASURE OF
DAMAGES – PERSONAL INJURIES – METHOD OF
ASSESSMENT – GENERALLY – where the plaintiff’s evidence was that he was a bricklayer and had been one for approximately 28 years – where there was no reliable evidence of the plaintiff’s history of earnings – where there was no independent evidence of the plaintiff working regularly – what damages should be allowed for past economic lossCivil Liability Act 2003 (Qld)
Civil Liability Regulations 2003 (Qld), Sch 3 s 2, Sch 4Personal Injuries Proceedings Act 2002 (Qld)
Fine v Geier [2003] QSC 73, cited
Jones v Bartlett (2000) 205 CLR 166, followed
Munzer v Johnston [2008] QSC, cited
R v Neal [1947] ALR (CN) 616, applied
Waller v McGrath [2009] QSC 158, citedCOUNSEL:
P Lott for the plaintiff
J Rolls for the defendants
SOLICITORS:
Winchester Young & Maddern Solicitors for the plaintiff
Barry & Nilsson Lawyers for the defendants
[1] Douglas J: Mr Strachan’s claim is for damages for an injury he says he suffered on 30 October 2004. His case is that he fell and hit his head against the wall of a house on the defendants’ property because of a dangerous hole in the driveway leading to the entrance to the house. The blow eventually caused him to suffer from a detached retina making him almost completely blind in his right eye.
One of the most significant issues in the case is whether the accident in which he claims he suffered his injuries occurred in the circumstances alleged by him in the pleadings. Another major issue is what the effects of the injuries he suffered were on his ability to work. He says his previous occupation was as a bricklayer.
The defendants were the occupiers of the premises, the first defendants, Mr and Mrs McPhee, owning the property as trustees of their own superannuation fund and the second defendant, a company controlled by them, being their lessee as the operator of a business on the land.
The evidence
Employment
Mr Strachan’s evidence was that he was a bricklayer and had been one for approximately 28 years since he left school after year 10 in 1974. He was born on 12 March 1959 which now makes him 51. He was 45 on 30 October 2004, the day he says he was injured. His father was a stonemason and his uncle a bricklayer also. He trained with his father, completing his apprenticeship in 1979. He had worked for other employers whom he did not name and also as a self-employed subcontractor, most recently, before the incident, for a man called Darren Singlewood. Mr Singlewood had also previously worked for him for about a year but during the two years before the incident Mr Strachan had worked for Mr Singlewood.
Mr Strachan said that he worked in the role of a foreman for $30 per hour and that Mr Singlewood would normally pay him by cheque. The relationship between him and Mr Singlewood was difficult to ascertain clearly. He said that Mr Singlewood was his employer on a permanent casual basis but also said that he worked as a subcontractor. The invoices he said he provided to Mr Singlewood each month contained his ABN number and he said that he had taken his own insurance to cover himself against accidents. He also said that Mr Singlewood deducted PAYG tax from the payments to him but nothing appeared in the tax returns he produced for the relevant period to disclose any such payments. It seems more likely that the position he described was as a subcontractor.
He had not filed tax returns for the financial years ending 30 June 2002 to 30 June 2009 until this year, 2010, partly, he said, because of problems he faced coping with the introduction of GST, and partly because of the consequences of his accident. He was only able to produce the returns for the years ending 30 June 2002, 2003 and 2004. The defendants suggested that his real motive for filing returns this year was to try to establish some basis for his claimed economic loss. The information on which the tax returns were based was sketchy at best as I shall discuss in more detail later. The defendants’ argument was that he had only filed the returns to assist him in this case and that the lack of supporting documentation for his claimed income and expenses was highly suspicious.
Injury
On the day of the incident Mr Strachan said he had been staying at home with his mother who suffered from Alzheimer’s disease. He met a friend called Jamie Goodman-Jones at the Lord Stanley Hotel at Woolloongabba at about 6:00 pm and started drinking there about 6:10 pm. He drank Hahn light beer and had drunk about six stubbies with Mr Goodman-Jones when they decided to go back to Mr Goodman-Jones’ residence nearby as Mr Goodman-Jones wanted to eat. Mr Goodman-Jones lived in a flat on the first floor of a nearby house on the defendants’ land where a service station was being renovated The house was on a construction site on a cleared block of land with a temporary fence around the front of it. Its only access was from Didsbury Street, which itself ran off Stanley Street.
He said that there was no light in the driveway and that, as he was walking down the driveway towards the back stairs of the old house in which Mr Goodman-Jones lived, he stepped with his right foot into a hole where a slab of concrete used to be and stood on a piece of concrete which threw him into the side of the house. He said he hit the top front part of his head against the house. As he gave that evidence he pointed to the crown of his head approximately 10cms above his hairline. He said that Mr Goodman-Jones picked him up from the ground, that there was blood on his head and that Mr Goodman-Jones provided him with a tea towel when they went into his living quarters to help him stop the bleeding.
His evidence about the area where he says he fell was that there was a hole in the driveway about 300mm deep which was about 3 metres wide and between 2.5 and 3 metres in length. He also said that there was a small spoon drain against the side of the building and small pieces of rubble in the hole.
That description differed from his statement of claim which described him walking into a trench formed across the concrete driveway causing him to trip and fall against the building.[1] Significantly the defence filed on 13 November 2007 described a trench that was dug in the driveway during November 2004 after the event claimed by him and denied any other obstacle in the driveway which may have caused him to trip.[2] The existence of that trench was established by photographs from the first defendant, Mr McPhee, who also produced a quotation and an invoice to establish that the work was done after 3 November 2004.
[1]See para 7 of the statement of claim.
[2]See paras 7(b) and 7(c) of the defence.
The reply filed on 28 November 2007 alleged that the trench extended across the width of the driveway such that a length of approximately two metres of the concrete driveway was missing to a depth of approximately 30 centimetres, a description more consistent with his evidence but which gives a different impression from the description in the statement of claim. Other versions of the dimensions of the hole that he gave differed markedly in his estimate of its width. I shall mention them in more detail later.
Apart from the first version of the accident given to a Dr Prestopino, which was that he fell against a fence while drunk, his earlier version of the accident given to Dr Hilton on 6 June 2007 referred to him having fallen into a trench and hitting his head on the side of a house. By 3 December 2008, more than a year after the delivery of the defence, Mr Strachan’s version given to Dr Burke changed to describe the area where he fell as a space where concrete had been removed and broken into pieces. He told that doctor that he stepped on a piece of concrete, fell to the right and hit the right parietal region of his skull against a windowsill.
On Mr Strachan’s evidence, Mr Goodman-Jones and he had some food after his injury and went back to the Lord Stanley Hotel but he said he had nothing more to drink and only stayed there about 15 minutes. He then went back to the house and put a tea towel on his head again for about 20 minutes after which the bleeding had stopped. He then only felt a small amount of pain and did not go to hospital to seek treatment at that stage.
Mr Goodman-Jones also gave evidence about the injury. He lived in the premises on the corner of Stanley Street and Didsbury Street and was there for about six months altogether living with Mr Philip Price and paying $50 per week to him which he believed Mr Price paid to the landlord through Mr McPhee. He believes he met Mr McPhee once or twice.
He and Philip Price lived upstairs in the house. He said there was an old 1970s arm chair which was in the house which was padded on the sides, another arm chair and a two-seater. He did not describe a wooden chair.
He said there was a concrete driveway allowing entry to the house with a gap in the concrete about two metres long and three metres wide and about 200mms deep. He said there was dirt and bits of sand and little rocks in the bottom of that gap. There was a street light near the entrance to the driveway and the gap in the concrete was about 8 to 10 metres from where the driveway joined Didsbury Street.
On the day in question he said that he had arranged to meet Mr Strachan at 5:30pm to 6:00pm at the Lord Stanley Hotel. He arrived a bit earlier and was drinking XXXX Gold beer. Mr Philip Price was there also and Mr Strachan arrived about 6:30pm. He said that Mr Strachan was drinking Hahn Light beer. They left the hotel about 8:00pm as Mr Goodman-Jones said he was feeling hungry and wanted some tea. He proposed to make some corned beef sandwiches.
It was dark when he returned to his premises with Mr Strachan. He said nobody else was there. He walked in front and reached the area where the missing concrete hole was. He was familiar with that area and said that Mr Strachan had visited a number of times before with him. One concludes therefore, that Mr Strachan should have been aware of the existence of the hole as well, if it existed.
He was in front and heard Mr Strachan stumble and then a thump. He said that he had a bit of a laugh and helped Mr Strachan up. He saw him on the ground apparently in a squatting position facing back towards Didsbury Street and very close to the wall of the house. He observed that he was bleeding, got an old towel and put pressure on his head. Mr Strachan kept that pressure on the head through the old towel for about half an hour, had a sandwich and then they went back to the hotel. Mr Strachan did not stay long there because he began to bleed again. He said he had not worked with Mr Strachan since then.
He saw a gash in Mr Strachan’s head the next day which he described as being on the top of his head to the right near the crown. He said that Mr Andrew Price, Philip Price’s half brother and a recent arrival in Australia, was not present that night at the house but was present at the Lord Stanley Hotel later with Philip Price after the accident. He has not seen Mr Strachan working as a bricklayer since then.
In cross-examination Mr Goodman-Jones said that he had walked the driveway with Mr Strachan on most weekends since about June 2004. He said the concrete was missing since June and that the slab removed was about 100mms thick and that there was about another 10cms of dirt removed as well which had been done when he arrived at the premises. He said that he made ramps into the space to allow him to move his motorcycle through it. He gave no evidence of any complaint made to Mr McPhee about the presence of the hole in the driveway.
He admitted that he did not see Mr Strachan fall but saw him on the ground crouched down after the fall. He had also told the defendants’ solicitor in May 2008 that he, Mr Goodman-Jones, was about to step onto the stairs into the house when the fall occurred. He believed that Mr Strachan fell down and hit his head on the window sill but it is unlikely that he actually saw that happen. Mr Rolls for the defendants submitted he placed himself in three different locations at the time of the fall. His submission was that in evidence in chief he said that he was about a metre in front of the plaintiff. Later, he said that he was through the hole[3] which would place him, having regard to his estimate of the length of the ditch, two and a half to three metres away.
[3]See T2– 48.30
I am not so sure that the evidence establishes that he was that distance ahead then but it is true that later he says that he was about to step onto the stairs when the fall occurred.[4] It was submitted that none of these statements should give me any confidence in accepting the evidence of Mr Goodman-Jones as to the circumstance of the accident.
[4]See T2-49.40
He denied any occasion on that evening when he and Mr Strachan engaged in play fighting in his flat or that Mr Strachan lost his balance and hit the top of his head on the wooden arm of an arm chair in the flat. He also disagreed with the allegation put to him that crusher dust had been placed in the gap from which the concrete had been removed and that the area there was essentially level with the remaining part of the concrete path. He only stayed at that flat a couple of weeks after the event when he went to Hamilton Island to work there.
Mr Strachan’s first attempt to seek medical treatment occurred a week later on 6 November 2004 when he visited Dr Roberta Prestopino. He worked as a bricklayer during the week before he went to see Dr Prestopino and her evidence of what she was told by him is significant although, unfortunately, only able to be obtained from her note as she has since died. Her note of what she was told by Mr Strachan is that he “fell last Saturday against fence while drunk” and the note goes on to indicate that he said he suffered no loss of consciousness and had a large gash on the right side of the right parietal area.
It is likely that there was no fence in the driveway on 30 October 2004 although there were probably fence posts there in preparation for the erection of a timber fence which is likely to have occurred shortly after that date. If there had been a fence it would have been on the opposite side of the driveway from the house that he now claims he hit.
He took photographs of the driveway after his second operation but said that they did not show it as at the date of the injury because the driveway had by then been dug up and gravelled.
He had been to the property about six times before the incident and was aware that there was a hole in the pathway. As I have discussed earlier, he had described the nature of the hole in different terms over the years since he initiated this claim. His evidence before me was that there were two pieces missing from the concrete in the driveway. He agreed that he would not describe it as a trench but as a hole because the use of the word trench implied a neat cut in the surface.
He said he put his right foot in the hole first and hit the top of his right head while heading towards the stairs of the building on his left hand side. Mr Goodman-Jones was about a half a metre ahead of him but did not fall in the hole itself. He says that at the time there was no temporary fence at the premises in spite of what he was recorded as having said to Dr Prestopino.
He also gave differing versions of the size of the hole. His description in his notice of claim under the Personal Injuries Proceedings Act 2002 was that it was 2 feet wide rather than 3 metres wide. Another description by him in a statutory declaration made 10 May 2005 was that it was one metre wide rather than 3 metres wide. He could not explain the differences in the estimates he gave of the width of the hole but sought to explain his earlier descriptions of it as a trench by saying that that word appeared to be understood more easily by his lawyers as a description of the feature. He also said that he told Dr Hilton in July 2007 that he had fallen into a trench because he found it easier to tell people that to help them understand what it was.
By late 2008, however, as I mentioned earlier, he told Dr Burke that it was a space where concrete had been removed and broken into pieces leaving concrete debris in the hole. The suggestion was made to him, with which he agreed, that he had made no earlier reference to concrete debris causing the accident before that version he gave to Dr Burke. The relevance of these discrepancies became more significant because of evidence to which I have already referred that no trenching had been done on the property until after the accident.
It was put to Mr Strachan in cross-examination that by 30 October 2004 part of the concrete slab in the pathway had been taken away and that crusher dust had been placed there and no hole in that location. He denied that, saying that occurred after his accident.
It was also suggested to him that his version had been altered from referring to the existence of the trench to now describing a piece of the driveway as being missing because of his later awareness of the allegations as to when trenching was done on the site and when concrete dust was laid there. He denied that, asserting that there was no trench there when he fell. He also gave evidence that the slab that had been removed was itself about 10cms deep and that, to make the hole deeper a further 20cms of dirt had been removed. Mr Rolls later argued for the defendants that the removal of such a quantity of dirt would have been likely to remove concrete debris too. That may well have been the case even if the submission was necessarily speculative.
Mr Strachan agreed that he did not tell a Dr Dal Pra that he had fallen into a hole and denied assertions that a Mr Andrew Price had seen him and Mr Goodman-Jones engaging in playful pushing and shoving in the apartment where Mr Goodman-Jones lived, leading to him being shoved into an arm chair against which he hit his head causing it to bleed. He also denied that he then went back to the Lord Stanley for a few drinks.
It was also put to him that Louise Cameron, a sister of Philip Price who occupied the premises where Mr Goodman-Jones lived, spoke to him at the Greenbank RSL sometime about December 2004 when he was said to have told her that he hit his head on an arm rest. He denied any discussion with her.
Mr McPhee, one of the first defendants, gave evidence that the premises were being renovated at the time of the accident claimed by the plaintiff. The land was used as a service station but also had a timber residence on it with access to that residence through a stairwell adjacent to the driveway. He agreed that concrete had been removed from the driveway but said that crusher dust had been put down there at the level of the concrete driveway.
The living quarters upstairs in the residence were rented by him to Philip Price whose mother worked for him. He said there was a timber rocking chair on the premises which he gave to Mr Price.
He said he filled in the depression left after the concrete slab was removed and always made sure it was trafficable for his tenant. There was no height differential that he was aware of between the level of the concrete and the area where concrete, crusher dust and gravel had been laid.
He also produced documentary evidence in respect of the laying of pipe in the driveway in November 2004. He received a quotation for that work dated 3 November 2004 and paid for it by the end of that month. He said that the work occurred during November. That work involved trenching near the entrance to the residence. He produced a photograph of that trenching taken in November 2004 and also a photo taken after that work was done which he said looked like the scene before the work was done. A timber fence shown in the second of those photographs, Exhibit 13, was not in existence on 30 October 2004 although there had been a chain wire fence along the boundary at some earlier time.
He said that he attended the premises every day and was conscious of health and safety issues through his experience as a company director. He first became aware of the injury asserted by Mr Strachan when he gave notice pursuant to the Personal Injuries Proceedings Act 1992, about six months later. He also said that the lighting in Didsbury Street allowed him to see where he was going on the driveway at night.
In cross-examination he said that the concrete slab was removed about six months before the trenching job was done in November. He also said that a smaller bit was removed closer to 30 October 2004 but that the gap left by it was filled straight after it was removed. He said that the hole left by the removal of the concrete was not left without gravel dust in it. He impressed me as a careful witness, not least because he had kept records and photographs of the work done on the property.
Andrew Price also gave evidence. He was the half-brother of Philip Price and said that he visited him regularly at the time because he had just arrived in Australia. He believed that he arrived in Australia on 2 November 2004, six years ago when he was 19. That was several days after the claimed accident and it was difficult to relate the incident he described which he believed occurred about four weeks after his arrival to the date of Mr Strachan’s injury, which he reported to Dr Prestopino on 6 November 2004. He struck me as a witness who was doing his best to recall what had happened but who may have been unreliable in respect of smaller details such as the dates when events happened.
He knew Mr Strachan because he used to come to his brother’s flat regularly. He observed an incident involving Mr Strachan and Jamie Goodman-Jones when they were play fighting. He placed the incident in the morning and said that Mr Strachan ran at Mr Goodman-Jones who palmed him off and Mr Strachan hit a big wooden arm chair. His head hit the arm on the centre to the left of the top of his head. He did not know of him having an injury to his head earlier than this. He observed quite a lot of blood seeping out from Mr Strachan’s head and there was talk that he should go to the hospital. He did not but then went to the Lord Stanley Hotel with his brother, Mr Strachan and Mr Goodman-Jones. He said that Mr Strachan appeared fine then and that the bleeding appeared to have stopped. He was at the hotel for about another hour.
In cross-examination he said that he may have stayed at his brother’s flat the night before and agreed that he had previously met Mr Strachan and Mr Goodman-Jones several times. He had not been in the country long. He said that his brother was in the kitchen and did not see the episode where Mr Strachan was injured and denied the allegation put to him that the incident did not occur.
His half-sister, Louise Cameron also gave evidence. Initially she said that she had no memory of the events beyond the fact that she met Mr Strachan at lunch for her mother’s birthday about six years ago on about the 27th November 2004 at the Greenbank RSL. She remembered that he wanted her to touch his head because of a dent in it on the right side but said initially that she could not remember anything that happened. When Mr Rolls, for the defendants, who had called her, sought to have her declared hostile I allowed him to examine her in respect of the written statement she had given his solicitors along the lines recognised by Dixon J in R v Neal.[5]
[5][1947] ALR (CN) 616, discussed in R v Thynne [1977] VR 98, 101-103 and in Cross on Evidence, Australian Edition at para [17160].
When taken to the content of that statement she agreed that Mr Strachan had told her on that occasion that he was play fighting with Mr Goodman-Jones when he cut his head on a chair. She also agreed that he was playful when he asked her to touch his head.
In cross-examination it was put to her that her mother worked for the defendants with which she agreed and it was suggested to her that her evidence was coloured by that fact. She disagreed, saying that her mother was not particularly friendly with the defendants. She said that she was not any particular friend of Mr Strachan and denied that she had lied about the conversation with him. She queried rather convincingly why she would lie and said that she mainly did not want to be involved. She explained her earlier lack of memory on the basis that she was a busy young mother with three teenage daughters, the lapse of time since the events and her lack of involvement in the issue.
Neither party called Philip Price to give evidence. His evidence could have been relevant to each side’s case and, in the absence of an explanation of the fact that he did not give evidence, I do not feel that I should draw an inference adverse to either side.
Detached retina
In February 2005 Mr Strachan went to an optometrist because he was beginning to have problems with his right eye. The optometrist referred him to a specialist. He was then admitted to the Princess Alexandra Hospital for surgery and underwent five operations. He now cannot see from his right eye. He said that had a devastating effect on him and that it has also affected his ability to work as a bricklayer because he can no longer lay bricks accurately to a line.
Dr Hilton was an ophthalmologist who reported on his retinal detachment. There had been five operations in an attempt to reattach his retina which were unsuccessful leaving him with practically no vision in his right eye but normal vision in his left eye. Mr Strachan described the blow he received to Dr Hilton as one to the top of his head at the back, the vertex or the crown of the head. Dr Hilton’s view was that such a blow could certainly cause a retinal detachment.
The effect of the loss of vision in his right eye, in Dr Hilton’s opinion, was that Mr Strachan lost binocular function which gives depth perception. He said that the effect of that was that Mr Strachan could still carry out the tasks he needed to do but with more difficulty. He thought it may take him longer to do some things than he would have taken previously. He believed it did not limit his capacity to work except, for example, if he wished to obtain a heavy vehicle licence or to work at heights. He believed that he should be able to work as a bricklayer and that if he had persisted at attempts to continue as a bricklayer he would have been able to adapt within a few months after the loss of vision in his right eye.
He believed he was capable of producing a flush line while working as a bricklayer although he said it may take him more time to do that depending on his individual characteristics. He believed that work on a building site would only pose a risk for him if he was working at a height. He also believed that he should be able to park and reverse park a vehicle although it might take him a few seconds longer than it would if he had normal vision. He believed he would adapt, however. He pointed out that many people drive with one eye. He also believed that he could do work such as maintenance work, the operation of a console and some labouring work.
Subsequent attempts to obtain employment
Mr Strachan said that attempts he made to work with Mr Singlewood after his operations resulted in work that had to be pulled down because it was too rough although it appeared to him to look pretty good. Mr Singlewood said he had known Mr Strachan for about 10 to 12 years through working for him as a bricklayer and then engaging him as a subcontracting bricklayer between about 2002 and 2004. He believed he was one of the best bricklayers he had known and said that he paid him at an hourly rate by cheque and received invoices from him every month.
He said he kept a record of hours worked by bricklayers working for him and that at the end of the month he would tell them what he had paid them. He used to pay them weekly or fortnightly by cheque and asked them to give him an invoice for the amount owed to them. He did not produce any of his payment records for Mr Strachan or cheque stubs or bank statements recording payments to him.
He had observed a head wound on Mr Strachan on the top of his head slightly to the right before he stopped working at the end of 2004. He said that Mr Strachan came back to work for him later in 2005 after his eye operations. He observed that Mr Strachan was not laying his bricks accurately, placing them a long way away from the string line used to try to ensure accuracy in laying bricks. He had to pull down a whole corner erected by Mr Strachan because of the poor workmanship he displayed. He believed that he worked for him for about a week or perhaps less before he decided that he could not continue to use him as a bricklayer.
If Mr Strachan could lay bricks now he said he would be able to earn $40 per hour as a subcontractor with him at Bundaberg at the moment. Mr Singlewood did not have a trade qualification as a bricklayer but said that he had about 25 years experience through having been taught by his father.
Mr Goodman-Jones was also a bricklayer who worked with Mr Strachan and Mr Singlewood. He met Mr Strachan about four months before 30 October 2004 through working in a group where Mr Strachan was the most experienced bricklayer. He said Mr Strachan was a hard worker who did not take time off. His evidence about his own current rate of pay was that he was on $35 per hour paid fortnightly.
Mr Strachan also said that he made attempts to find alternative work through the Commonwealth Rehabilitation Service and, more recently, through Centrelink but has not been able to find such work. His own attempts to find work when he was seeking the assistance of the CRS do not appear to have been extensive. He discussed with its officers the possibility of working with Australia Post but says that he never received an offer of employment with Australia Post.
He also sought to train to be a sales representative selling motor cycles, curiously also for Mr Singlewood who, by then, says that he had branched out into that line of business. Mr Strachan did not pursue the possibility of obtaining a salesman’s licence apparently, on his evidence, because he perceived it to be difficult to find work in the area. He was unable to give any significant detail about the type of training he received.
Mr Singlewood’s evidence on this topic was that he had opened a business called “JD Custom Cycles”, a motorcycle dealership. He tried to get Mr Strachan a salesman’s licence through a 13 week training course which he said was supported by the Red Cross making a payment to him to help train Mr Strachan. He said he could not afford to pay Mr Strachan during that course but gave him training, basically through encouraging him to observe Mr Singlewood himself selling motorcycles. He said that Mr Strachan was unable to obtain qualifications as a motorcycle salesman because the body supporting his training would not pay for his licence.
Mr Strachan says he put in an application to Bunnings for work at one of their stores but did not receive any offers from them. His evidence was that he placed that application with a neighbour and he later produced what he said was the original of the application which had no obvious connection to Bunnings on its face. The document he produced that he said was a job application was directed to “Sunstate Personnel”.
He also said that he had helped out some people from time to time including, for example, one person whom he helped to build a concrete driveway. That was not for any income.
On his evidence he has done very little work since 30 October 2004 although he agreed that a number of occupations were theoretically able to be done by him. He had performed some work as a tree lopper. He said that occurred over a period of two days when he was paid $150 per day but it appeared from records kept by the CRS that he had told that body on a number of occasions that he was performing such work.
He said that the CRS tried to find jobs for him but he agreed that he had missed 29 appointments with it from January 2006 to May 2008 and that he was warned on a number of occasions about his failure to comply with his obligations with that service. On 19 July 2006 he had a discussion with his case officer at the CRS about the possibility of doing light maintenance work for MiniMovers. He was not interested in that possibility, he said, partly because of problems with depth perception arising from his loss of sight in his right eye. He believed that the work would require him to change light bulbs while using ladders.
He also discussed the possibility of working for Australia Post with a case officer at the CRS and said that he spoke to someone at the Underwood Mail Centre but received no job offer. One indication he gave his case officer was that the work did not match his financial expectations as he used to earn good money as a bricklayer.
He denied the assertion that he did not try to obtain work but the indications on the evidence are that he was very casual in seeking to obtain employment at least up until recently when he has been required to apply regularly to employers in order to maintain his benefits from Centrelink.
He also said that his ability to work had been inhibited because he lost his licence in about December 2007 for three months from drink driving. His ambitions for future work included getting into the earthmoving business which he believed he could do if licensed and trained properly. He said that he had great difficulty in obtaining work now because of his limited experience, only having worked previously as a bricklayer, the difficulties his eye injury had caused with him doing that work and the lack of work generally for people of his age.
More recently he has been applying to employers for work as required by Centrelink at the rate of 6 employers a fortnight. The employers he approached shown in a Centrelink Participation Activity Record he produced did not have work available for him at the time. Apart from the Sunstate Personnel document it was the only document he was able to produce evidencing personal attempts by him to find work since his injury.
Dr Burke is an occupational physician who examined Mr Strachan. When he interviewed him Mr Strachan told him that he stopped work because “the work ran out”. This squares with Mr Singlewood’s evidence that his work generally decreased in the lead-up to Christmas. Mr Strachan told Dr Burke that he hit his head on the right side just above the ear. He also told Dr Burke that he had not applied for jobs of his own volition since the accident.
Dr Burke expressed the view that many people with monocular vision adapt over time and that behavioural changes in the brain allow adaptation with such people to permit them to work. He believes that Mr Strachan should have no major difficulties with bricklaying and said in his report that a supervised work trial would be good for Mr Strachan. He thought it most likely that he could have adapted if he wanted to.
He also believed that he should be able to drive and do courier work and that he could do labouring at a building site but would need to take precautions at height. He also believed he could do maintenance and cleaning work. He said that it could take up to 12 months for people who had lost the sight in one eye to adapt and estimated that a reasonable period after his last surgery in July 2005 to allow him to adapt would have been by July 2006.
He had only seen two patients in his experience, including Mr Strachan, who had not returned to their occupations after losing sight in one eye. He said most such people who adapt simply keep going in the same occupation. He believed that Mr Strachan would have a reasonable ability to line up bricks as true but that he may take three or four months of being slow at such work before his skills improved. He believed that after that period he would be efficient and that he should have been able to work around that period of adjustment.
In re-examination Mr Strachan described difficulties he said he had with reverse parking and said that he was poor at judging distances.
Past economic loss
Mr Strachan was only able to produce a limited range of documents relevant to his tax returns which were filed late for the years 2002 to 2009 in July 2010. He said that his accountant had the relevant source documents but the documents produced from the accountant were not complete by any means. They included some invoices and bank statements limited to the financial years ending 30 June 2002, 2003 and 2004 but no evidence apart from some withdrawals shown in the bank statements relevant to expenses likely to have been incurred by Mr Strachan in earning his income. It may be that the accountant based those figures on standard percentages of gross income for people in his industry but the evidence about that was sketchy.
He did not have receipts for the expenses during these periods either, explaining that initially by saying that they were with his accountant, but when the accountant’s documents were produced they did not include receipts for his expenses. The only documents produced were the bank statements and some invoices to which I have referred together with some working documents from the accountant. Some entries on the bank statements may have been for business expenses but no attempt was made to marry them up with the expenses claimed in the tax returns.
Curiously the invoices were made out simply to Mr Singlewood in an unbroken numerical sequence and contained very sparse detail about the work claimed to have been done, not even breaking it down into the number of hours worked or the dates apart from identifying the month. Mr Strachan said he had worked for other employers than Mr Singlewood but no invoices to any other employer were produced.
It seemed to me to be significant also that none of the invoices matched up with any deposits shown in the bank statements that were available for the three years of tax returns before his injury occurred. Nor were any of the deposits shown in the bank statements, some of which were in the thousands of dollars, linked to any source of income by Mr Strachan. When asked in his evidence in chief where he deposited his cheques from Mr Singlewood he said he did not always deposit them. “Sometimes I'd take them to the bank and cash them straight away.”[6] That should still have left cheques which were banked but it was not possible to link any of the invoices with any deposit on the sparse material that was available.
[6]T1-19 ll32-35.
These issues all added to my concerns about the extent to which I could rely on his evidence.
Submissions on liability
The defendants did not dispute that they, as occupiers of the premises, having control over both the premises and the entry of persons onto the premises, owed a common law duty of care to those who suffer injury on those premises.[7] Nor did they dispute the assertion that Mr Strachan was injured on the premises on 30 October 2004. Nor, had he satisfied me that he fell and injured himself in a hole of the nature he described, were they likely to have contested the conclusion that leaving such a hole there was evidence of negligence. What was in issue was whether the accident occurred in the circumstances he alleged.
[7]See, e.g., Jones v Bartlett (2000) 205 CLR 166 relied on by the plaintiff.
Mr Rolls’ submission was that the inconsistencies in the evidence of the plaintiff’s versions of the incident mean that I should have no confidence in accepting his story. He also submitted that I could not rely on Mr Goodman-Jones’ evidence because he did not observe what happened. Consequently he argued that the plaintiff had not discharged the burden of proof on him to establish that the accident occurred in the circumstances alleged.[8]
[8]Ocean Harvester Holdings Pty Ltd v MIM General Insurance Limited [2003] QSC 262 at [145].
He also argued that Mr McPhee’s evidence and that of Andrew Price and Louise Cameron provided cogent reasons for the conclusion that there had been no accident as alleged by Mr Strachan and that he was injured in the event described by Andrew Price and described by Mr Strachan to Louise Cameron. In that context he submitted that it was difficult to see how the plaintiff could sustain a cut to the top of his head colliding, perhaps, with the windowsill of the house, and that a stumble into a timber armrest of a chair was more likely to produce a gash to the crown of the head. The plaintiff’s evidence of how he hit his head on the wall of the house was not specific.
Mr Lott for the plaintiff relied on his and Mr Goodman-Jones’ evidence and criticised Mr McPhee’s evidence as well as that of Andrew Price and Louise Cameron. In particular he submitted that Andrew Price’s evidence was unreliable and inconsistent with the case put in cross-examination as to when the “horse play” occurred. He criticised Louise Cameron’s evidence on the basis that all she had done was to agree that she must have said what was recorded in her statement without swearing to its truth. Her evidence did, however, in my view establish that Mr Strachan mentioned to her that he cut his head while play-fighting with Jamie Goodman-Jones in Philip Price’s lounge room.[9] I take the view, however, that her recollection was clearly not good and, in the absence of other corroborating evidence, it would be difficult to rely on it with confidence.
[9]See T2-101 l60 to T2-102 l26.
He argued that the evidence established the existence of a missing section of concrete in the driveway at the time of the plaintiff’s injury, that the lighting was poor and that the probabilities were that the accident happened as alleged by the plaintiff because of the defendants’ negligence.
Conclusion on liability
There are significant issues of credit relating to the versions given by Mr Strachan describing the area where he says the event occurred. The differences in description that are of significance relate to his early description of it as a trench, something consistent with the evidence that a trench was built in November 2004 but not consistent with the strong evidence that there was no trench there before 3 November 2004. His later varying descriptions of the dimensions of the hole and Mr Goodman-Jones’ description of it as a ditch lead to the strong inference that their evidence has been tailored to cope with the fact that there was no trench there on the occasion he said that he was injured. That suggestion is reinforced by the new version Mr Strachan gave Dr Burke in late 2008, after the defence had been filed, that it was a space where concrete had been removed and broken into pieces leaving concrete debris in the hole.
He also faces credibility problems because of the version given by him to the first doctor who treated him, Dr Prestopino, that he fell “last Saturday against fence while drunk”. That may not be such a major problem because of Dr Prestopino’s unavailability because of her death. It is always possible that she may have recorded what she was told inaccurately, but her note of what she was told adds to the pattern of inconsistency in the plaintiff’s version of events. The paucity and unreliability of his evidence about his past earnings as a bricklayer also poses serious issues of credibility about his testimony generally.
The evidence of Mr McPhee must also be taken into account. He seemed to me to be an impressive and careful witness, both reliable and credible, and I see no reason to disbelieve his evidence that there was no hole at the time because he had ensured that it was filled with concrete dust. He was not shaken in cross-examination on that point. He was criticised because he did not have available immediately in Court invoices relating to the removal of concrete in the driveway and filling of it with concrete dust. Those documents were not, however, necessarily directly relevant to the pleaded claim that Mr Strachan fell into a trench. The documents relevant to the claim relating to the making of the trench had been disclosed and were tendered.
No further disclosure was sought based on the case the plaintiff actually ran at the trial and no notice to produce any documents relevant to the removal of the concrete slab had been served on his solicitors until after the defendants’ case closed. They were not produced the next day during the addresses so I am left with his evidence that he believed that any invoices for that work were unlikely to have dissected out the expenses for the removal of the concrete and the filling with concrete dust from the general work being carried out on the premises. That does not seem to me to be unusual or implausible in the circumstances.
There was no obvious reason why Andrew Price or Louise Cameron should be regarded as liars. Their evidence lacked reliability in some respects, partly, at least, because of the passage of time, but they seemed to me to be disinterested and credible witnesses on the essential issue. The fact that their mother worked for the defendants was not shown to be a factor that should detract from that conclusion.
Although Mr Goodman-Jones appeared to be a more reliable witness than Mr Strachan he did not actually see the event described by Mr Strachan. Rather he saw its aftermath. Although he denied the “horse play” said to have occurred in his residence one must also bear in mind that that event appears to have occurred after and before a drinking bout at the Lord Stanley Hotel so that his memory of events may not have been reliable. It seems too much of a coincidence to me that Andrew Price had a clear recollection of such an event although at a different time of day and perhaps on a different date and that his sister was spoken to in the terms Mr Strachan used in late November 2004 for such an event not to have happened.
Mr McPhee’s evidence, together with the evidence of Andrew Price and Louise Cameron persuades me that the event did not happen as described by Mr Strachan. I have also formed the view that an event such as was described by Andrew Price and told to Louise Cameron is likely to have happened. My conclusion is that there was no hole in the driveway at the time of the injury. In the circumstances, therefore, I do not believe that an event of the nature described in the driveway on 30 October 2004 actually occurred. On another analysis, I am not satisfied that Mr Strachan has proved on the balance of probabilities that such an event occurred. The consequence is that his action for damages must fail.
If I had been of a different view I would have concluded that a hole of the nature described evidenced negligence in the defendants as occupiers of the land, that it probably caused the injuries suffered by the plaintiff but that his damages should have been reduced to a modest extent, 15 per cent, because of his failure to take care for his own safety given that he should have known of the existence of such a hole. The evidence about his drinking was not sufficient for me to conclude that he fell there because of drunkenness or that inebriation was a significant factor in assessing contributory negligence.
Quantum of damages
General damages
After Mr Strachan saw Dr Prestopino he was subsequently referred to the Princess Alexandra eye clinic and attended on 10 February 2005. The diagnosis was of an inferior macular off retinal detachment. This was repaired with a sclera or buckle on 14 February 2005. However, the retina still remained detached inferiorly and on 20 February 2005 he underwent further review. It was noted on 10 March 2005, that he had a recurrent right inferior retinal detachment and he underwent further repair on 21 March 2005. He underwent further surgery on 6 June 2005 and was reviewed on 7 June 2005 when it was noted that he had a recurrent right retinal detachment and a further procedure was performed on 25 July 2005. Despite these multiple procedures, it does not appear there is any further prospect for further attachment surgery because of proliferative vitreo-retinopathy.
Dr Hilton’s examination showed that the right retina was very disorganised. There were numerous scars as a result of the retinal detachment and the five attempts to repair the retina and return vision to normal in that eye. Dr Hilton noted that the surgical procedures were not successful and have left the plaintiff with almost no vision in the right eye. Mr Strachan has suffered, according to Dr Hilton, an impairment of some 19 per cent. He will never recover vision in the right eye beyond what he presently has. Dr Hilton said that he would be able to work “but the incapacity is that he only has vision in one eye. This will mean he has no binocular or stereoscopic vision and any small visual tasks will be much more difficult for him in the future and it will take longer”.
The assessment of general damages in this matter is governed by the provisions of the Civil Liability Act 2003 and the Regulations. Pursuant to that Act and Regulations, I must select an Injury Scale Value (ISV) for an injury which reflects the level of adverse impact of the injury on the injured person.[10] Apart from having regard to the matters set out in the table forming the Fourth Schedule of the Regulations, I may have regard to other matters to the extent that they are relevant to the particular case. Examples of these other matters are:
[10]See the Civil Liability Regulations 2003, Sch 3, s 2
(a) Age;
(b) Life expectancy;
(c) Pain, suffering and loss of the amenities of life; and
(d) Difficulties in life that are likely to have emerged had not the injury occurred.
The parties submitted that Item 26 of Schedule 4 of the Civil Liability Act 2003 would apply to the plaintiff’s eye injury and the scalp injury ought be assessed as a minor head injury under item 9. It was also submitted that an ISV range of 26 to 30 should apply to the eye injury and 0 - 5 for the head injury and that the eye injury ought be assessed as the dominant injury.
With multiple injuries it is necessary to assess the dominant injury. The dominant injury for the purpose of the regulation is the injury having the highest range[11]. The question which arises in the case of multiple injuries is whether or not the other injuries can be accommodated within the range applicable to the dominant injury. The overriding purpose of the ISV is to reflect the level of adverse impairment of an injury on an injured person[12]. If the multiple injuries cannot be accommodated within the injury scale range applicable to the dominant injury, then there is a mechanism, contemplated by the regulations, which enables an uplift of the ISV to be made. Such an uplift should “rarely” be more than 25 per cent although s 4 of the regulations provides the clear power to uplift beyond that threshold.[13]
[11]See Sch 7 of the dictionary for the Regulations.
[12]See Sch 3, s 2(2) of the Regulations; Munzer v Johnston [2008] QSC 162 at para 8 per McMeakin J.
[13]See Munzer v Johnston Hibberd where there was an uplift of the dominant injury by 75 per cent and Clement v Backho [2006] QSC 129 where Dutney J applied 100 per cent uplift.
I was not asked to apply any particular uplift but Mr Lott pointed to the number of operations the plaintiff underwent, the effect of the injury on his ability to continue as a bricklayer and his age in arguing that an ISV of 29 was appropriate. Mr Rolls submitted that there was no evidence as to these matters which would affect the ISV. There was no evidence of any risk of sympathetic ophthalmia and no evidence of scarring. In those circumstances, he submitted an ISV at the bottom of the range, 26 was appropriate.
It seems to me that the injury was significant and did have some effect on his employability in his middle age. He also suffered an additional injury to his scalp of a relatively minor nature but which should be taken into account. I assess the ISV in the middle of the range as 28.
This produces an award of general damages of $41,000. Pursuant to s 60 of the Civil Liability Act 2003, no interest attaches to this award.
Special Damages
The plaintiff is entitled to recover his reasonable out of pocket expenses. He did not prove his medical and hospital expenses although the material admitted by consent from the CRS indicated that he had incurred an obligation to repay that body $5,631.00 for the vocational rehabilitation costs of the services it provided him.
Mr Rolls submitted I should not include that figure in his special damages because he did not take proper advantage of it. Nonetheless he has incurred the obligation to repay and the services were necessitated by the injury and would have been of some benefit to him even if he did not take full advantage of them. I would include this figure in the assessment.
Past Economic loss
The plaintiff is entitled to recover damages representing his diminution in earning capacity to the extent to which that diminution is or may be productive of financial loss.
I have already pointed out that the evidence of the plaintiff’s earnings before the accident is unsatisfactory and unreliable. The plaintiff gave evidence that his earnings were disclosed in the income tax returns for the years, 2002, 2003 and 2004 but there were no documents produced capable of verifying these returns reliably. He does not know whether or not those documents prepared in the middle of this year are accurate. There are no financial documents which have otherwise been disclosed which would enable any reasonable examination of his financial affairs to be undertaken to identify what, if any, earnings he generated as a result of his own efforts prior to the accident.
Mr Rolls’ submission that they appear to have been created for the purposes of providing evidence in this case of the plaintiff’s earnings was plausible. There are no supporting documents relating to the expenditure claimed. The only income is the invoices issued to Mr Singlewood. There is no record in relation to the invoices of Mr Singlewood that they were ever acted upon and paid by him. The plaintiff gave evidence of earnings from other people but none of this has been disclosed. The plaintiff gave evidence that he was unable to personally verify that the return was accurate. He relied on his accountant but Mr Rolls submitted that one can see from the accounting documents[14] that the accountant laboured under a significant handicap in endeavoring to prepare the returns based upon the material provided.
[14]Exhibits 7, 8 and 9
That also seems to me to be a correct analysis of the evidence and I do not propose to rely directly on the tax returns in estimating Mr Strachan’s past economic loss. Mr Rolls submitted that I should adopt a conservative approach analogous to where incomplete disclosure of income is made in taxation returns.[15]
[15]See Fine v Geier [2003] QSC 73 at [73] per M Wilson J
He also submitted that I should treat Mr Singlewood’s evidence cautiously, especially in his verification of the invoices submitted by Mr Strachan. He submitted the invoices themselves, being a consecutively numbered bundle of documents issued only to Mr Singlewood with no other employers in the picture, created more suspicion and raised more questions than they purport to answer. He argued that Mr Singlewood’s evidence was unsatisfactory. He gave evidence that as a business proprietor himself, he was prepared to accept at face value the bald statements made in Exhibit 2. He said that he knew what was going on as he was on the site but was reluctant to identify how many other persons were also present. He said that he knew what work they had done. He did say he kept his own diary but did not say that he consulted that diary prior to the payment of invoices. He submitted that the evidence of Mr Singlewood ought not be accepted with the result that there was no evidence that the invoices were in fact paid by him. Nor were these payments corroborated by any corresponding entries in Mr Singlewood’s accounts.
In the absence of reliable contemporaneous corroborative evidence of that nature I am not prepared to accept that the invoices in Exhibit 2 are a true measure of the earnings of Mr Strachan before he was injured. I was not impressed by Mr Singlewood as a witness and would not rely on his evidence unless it was independently corroborated.
His evidence was also submitted to be curious in respect of his provision of training in motorcycle sales to the plaintiff. He obtained the sum of $645 which he solicited from CRS to effect such training. Yet, the evidence of the training both from the plaintiff and Mr Singlewood was remarkably unsatisfactory. Nothing seemed to have been gained as a result of the payment by CRS to Mr Singlewood of $645. It was submitted by Mr Rolls that this was simply a sham to obtain CRS money for Mr Singlewood for which he gave no return. I am not prepared to make such a finding based on the available evidence but it is significant that Mr Strachan derived no discernible qualification or benefit from the 13 week “course” with Mr Singlewood.
There was no independent evidence advanced as to what bricklayers are capable of earning except through Mr Goodman-Jones’ evidence of his hourly rate. Nor was there any reliable evidence of Mr Strachan’s history of earnings. Nor is there independent evidence of the plaintiff working regularly.
It seems to me that the effects of the retinal injury have, to some extent, narrowed the plaintiff’s earning capacity but he is still capable of working in a wide range of positions including bricklaying. There would be difficulties for him in working at heights in that trade which I should take into account but his limited evidence about his attempts to return to his trade for a few days or a week provided no real help in ascertaining how significant that problem might be. His injuries probably would have inhibited him significantly during the time from late 2004 until mid 2006, about a year after the last of his operations, during which he would still have been adapting to his monocular vision on the assessment of Dr Burke.
He was able to work doing tree lopping and some concreting work. He was offered openings which may have led to employment in maintenance and at Australia Post. He did not pursue these avenues. He conceded that he could have undertaken work as a courier driver, console operator and perhaps in security. He could work as a labourer or a gardener. Yet, he has made no significant or sustained efforts to obtain employment.
Mr Lott referred me to information in the CRS records to the effect that no firm job offer was made to him through that service but there were clearly problems associated with his motivation in taking advantage of what was available to him and little indication that he did much to help himself either through the CRS or independently. There appear to have been potential difficulties in spending money on retraining him where jobs he was interested in may not have been readily available, but that is by no means a complete explanation for his inertia in pursuing work.
The evidence also suggested that work for a subcontracting bricklayer was not available all year, especially over the Christmas break. Mr Lott’s calculation of his client’s loss, admittedly based on what I regard as the unreliable tax returns and invoices, was that his nett wages were slightly less than $600 per week at the time of the injury. A nett earning capacity of about $30,000.00 per annum for someone with Mr Strachan’s apparent experience does not sound unrealistic to me but I would only allow it at that rate for the period when he is most likely to have been unable to work, effectively for about 18 months between early 2005 and mid-2006.
I would also assess some much less significant loss for the approximate period of 4.5 years thereafter on the basis that he should have been able to obtain work during that period, possibly at a lower level of income because of the loss of his eye. Approaching the issue globally I would assess his past loss of earning capacity as $70,000 which I have calculated as $45,000.00 for the 18 month period I have mentioned and approximately $5,000.00 per annum for the period of roughly 4.5 years since July 2006, rounded up to $70,000.00.
That figure is less than he received as Centrelink benefits so no interest would be assessable on it.
Past loss of superannuation
There was a claim for lost superannuation benefits at 9 per cent. Because of the uncertainty of his status – whether he was an employee or a subcontractor – and because the possibility of work as both occurred in the industry, Mr Rolls submitted I should assess that loss at the rate of 4.5 per cent rather than 9 per cent. That seems appropriate to me, so the loss under that head would be $3,150.00
Future Economic Loss
I would adopt a similar approach to the plaintiff’s future economic loss as for his past loss since mid 2006 except that I would assess it at a current loss of approximately $110.00 per week for a notional retirement in about 14 years at about the age of 65 using the multiplier on the 5 per cent tables of 529.3. He gave no evidence of when he expected to retire if the injury had not happened and I would not expect a bricklayer to be likely to work to the age of 67 as was advanced for him in argument. By the same token I would only reduce that assessment for the normal contingencies of life by 10 per cent.[16] The result of that calculation is $52,400.00.
[16]See Waller v McGrath [2009] QSC 158 at [50]-[53].
Future loss of superannuation
Adopting the same approach to this claimed loss as for the past loss of superannuation produces a figure of $2,358.00.
Calculation of damages
In summary, I assess the plaintiff’s damages as follows:
(a) General damages $41,000.00
(b) Special damages $5,631.00
(c) Past economic loss $70,000.00
(d) Past loss of superannuation $3,150.00
(e) Future economic loss $52,400.00
(f) Future loss of superannuation $2,358.00
Total $174,539.00
Decision and orders
Because of my conclusions about liability for the plaintiff’s claim his action will be dismissed. I shall hear the parties as to any further orders that are required including orders as to costs.
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