Toomey v Scolaro's Concrete Constructions Pty Ltd (in liq) (No 2)

SUPREME COURT OF VICTORIA AT MELBOURNE
COMMON LAW DIVISION	Not Restricted

MAJOR TORTS LIST

No. 4130 of 1997

CAMERON JOHN TOOMEY	Plaintiff
v
SCOLARO’S CONCRETE CONSTRUCTIONS PTY LTD (In Liquidation)	First Defendant
And
BIGRIDGE PTY LTD	Second Defendant
And
ANDREW DUNCAN SMITH	Third Defendant
And
NEIL EVANS & NOEL McKERNAN PTY LTD	Fourth Defendant
And
BODY CORPORATE STRATA PLAN 334479D And ANDREW YOUNG And DAVIDSON HUGHES ESTATE PTY LTD And GREGORY STEPHEN MOORE And DAVID RICHARD SPREADBOROUGH And HUDSON CONWAY MANAGEMENT LTD	Fifth Defendant Sixth Defendant Seventh Defendant Eighth Defendant Ninth Defendant Tenth Defendant

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATES OF HEARING:	12 – 16; 19 – 23; 26 - 28 February 2001; 1, 2, 5 – 9, 13 – 16, 19 – 23, 26 – 30 March 2001; 2 – 4 , 18, 23, 24, 26, 27, 30 April 2001; 1 - 4, 7, 8, 16 - 18, 21 - 25 May 2001
DATE OF JUDGMENT:	17 August 2001
CASE MAY BE CITED AS:	Toomey v Scolaro Concrete Constructions and Others (No.2)
MEDIUM NEUTRAL CITATION:	[2000] VSC 279

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Negligence – Damages – plaintiff falls over balustrade within stairwell in block of flats – whether height of balustrade in breach of clause D2.16 Building Code of Australia 1990 – whether low balustrade nonetheless served “to restrict” falls – whether cl. D2.16(b) required a balustrade on a landing to be built to a height of 1000 mm – whether height of balustrade permitted to be less than 1000 mm over a transition zone of 500 mm along a landing - Building Act 1993, ss. 16, 24 - whether any liability of owner/developer, project manager, builder, surveyors, architect, building inspector – whether delegable and/or non-delegable duty of care owed – whether a statutory duty created by cl. D2.16 – statutory duty imposed on owner and builder, but not on project manager and consultants - causation - whether fall solely due to skylarking of colleagues of plaintiff on stairway – plaintiff severely intoxicated – volenti non fit injuria - contributory negligence – ss. 128, 238 of Building Act – statutory immunity of surveyor – whether valid certificate of compliance was issued: Reg 15.7, Form 14, Building Regulations 1994 – whether surveyor relied in good faith on certificate of inspector – whether surveyor owed duty of care to plaintiff to check the performance of duties by the building inspector – whether owner/project manager liable for negligence of builder and consultants – whether project manager/owner under non-delegable duty to oversee work of builder and to inspect for Code compliance - whether project manager had actual knowledge of defect - whether owner and project manager were liable as joint venturers/builders - quantum of damages - plaintiff quadriplegic – 25 year old, world-class athlete at time of injury – loss of earning capacity – whether benefits allowed to family business on account of plaintiff’s labour were earnings of plaintiff – relevance of pension repayable to Commonwealth.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Terry Casey QC with John Philbrick and Chris O’Neill	Rennick Briggs
For the First Defendant (Scolaro’s Concrete Constructions Ltd (In Liquidation))
For the Second Defendant (Bigridge Pty Ltd)	Ross Gillies QC with Brendan Griffin	Middletons Moore & Bevans
For the Third Defendant (Andrew Duncan Smith)	Richard Stanley QC with Chris Blanden	Ebsworth & Ebsworth
For the Fourth Defendant (Neil Evans & Noel McKernan Pty Ltd)	Michael Wilson and Mark Settle	Solomon & Associates
For the Fifth Defendant (Body Corporate Strata Plan No. 334479D)	Peter Cawthorne	Price Waterhouse Legal
For the Sixth Defendant (Andrew Young)	Michael Thompson	Connery & Partners
For the Seventh Defendant (Davidson Hughes Estate Pty Ltd)	George Watkins	Phillips Fox
For the Eighth Defendant (Gregory Steven Moore)	David Curtain QC with Frank Saccardo	Ligeti Partners
For the Ninth Defendant (David Richard Spreadborough)	Klaus Meuller	Wisewoulds
For the Tenth Defendant (Hudson Conway Management Ltd) For the Third 3^rd Party (CIC Insurance Ltd)	Peter Riordan with Neil Murdoch David Beach	Blake Dawson Waldron Craig Terrill & Associates

Table of Contents

THE ISSUES BETWEEN THE PLAINTIFF AND THE DEFENDANTS.................................................................. 5

THE BUCK’S PARTY AND EVENTS LEADING TO THE FALL OF THE PLAINTIFF................................ 12

FROM WHAT PLACE DID THE PLAINTIFF FALL?................................................................................................ 17

(A): The evidence of persons attending the Buck’s party........................................................................... 17

(B): The evidence of residents at Balmoral Apartments............................................................................ 25

(C): Some other arguments..................................................................................................................................... 30

(D): The expert evidence relevant to the site of the fall.......................................................................... 32

(E): Summary: The site of the fall..................................................................................................................... 41

WAS THE HEIGHT OF THE BALUSTRADE A FACTOR IN THE FALL?........................................................ 41

STATUTORY DUTY: THE BUILDING CODE OF AUSTRALIA......................................................................... 43

The Code: Issue (a) – Did it create an enforceable statutory duty, at all?........................................ 46

The Code: Issue (b) – On whom was the duty imposed?.................................................................................... 50

The Code: Issue (c) – Did it require a rail at 1000 mm?.................................................................................... 55

The Code: Issue (d) – Was a low rail permitted above the first 500 mm of a landing?...................... 60

The Code: Issue (e) – Was the height of the balustrade a cause of the fall?....................................... 63

PRELIMINARY ISSUE (A): WAS THE BALUSTRADE BUILT BY REFERENCE TO PLAN 18B?........ 65

PRELIMINARY ISSUE (B): WHO KNEW THAT THE BALUSTRADE WAS BELOW 1000 MM?......... 66

THE ROLE OF THE ARCHITECT.................................................................................................................................... 79

(a) The defects in Plan 18B.......................................................................................................................................... 79

(b) A failure to inspect?............................................................................................................................................... 84

Design Intent Inspections........................................................................................................................................... 85
Defects inspection........................................................................................................................................................ 89

THE ROLE OF THE CORPORATE SURVEYOR......................................................................................................... 89

(a) The claims brought against Bigridge Pty Ltd.............................................................................................. 89

(b) The Role of Bruce Thomas as to Plan 18B..................................................................................................... 90

(c) The Surveyor’s Statutory Immunity............................................................................................................... 93

(d) Was a valid Form 14, Certificate of Compliance, ever issued?.............................................................. 95

(e) A Question of Good Faith..................................................................................................................................... 98

(f) The Negligence Alleged against the Corporate Surveyor, Bigridge:............................................. 102

(g) Was There a Breach of the Surveyor’s Duty of Care............................................................................ 103

(h) The Surveyor’s Duty of Care – Was it Delegable?.................................................................................. 104

THE ROLE OF ANDREW YOUNG................................................................................................................................. 112

THE ROLE OF THE BUILDER......................................................................................................................................... 113

THE ROLE OF ANDREW SMITH................................................................................................................................... 115

THE ROLE OF DAVIDSON HUGHES AND HCML.................................................................................................. 124

Was the Duty of Care of Davidson Hughes/HCML Delegable?..................................................................... 128

The evidence as to a non-delegable duty held by HCML/Davidson Hughes............................................ 130

The law relating to the duties of care owed by Davidson Hughes/HCML................................................ 142

THE ROLES OF GREGORY MOORE AND DAVID SPREADBOROUGH....................................................... 151

DID RITCHIE TOOMEY CAUSE THE ACCIDENT?: THE EVIDENCE OF DR WIRTH........................ 153

THE PLAINTIFF’S ALCOHOL CONSUMPTION: WAS THE PLAINTIFF INTOXICATED?................ 158

THE INTOXICATION OF THE PLAINTIFF: VOLUNTARY ASSUMPTION OF THE RISK?............... 163

THE RESPECTIVE LIABILITY OF THE DEFENDANTS...................................................................................... 163

CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF........................................................................................ 168

DAMAGES................................................................................................................................................................................ 169

General damages.............................................................................................................................................................. 169

Special damages................................................................................................................................................................ 175

Loss of earning capacity – Past.................................................................................................................................. 175

Griffiths v Kerkemeyer claim: Past voluntary care...................................................................................... 184

loss of future earning capacity................................................................................................................................. 185

Griffiths v Kerkemeyer Claim – Future needs...................................................................................................... 189

Aids and equipment.......................................................................................................................................................... 191

Housing Requirements.................................................................................................................................................... 192

Future Medical and Like Expenses............................................................................................................................ 195

Summary as to Damages................................................................................................................................................ 196

HIS HONOUR:

The plaintiff, Cameron John Toomey, was born on 26 September 1970. On the evening of Friday 1 March 1996 he attended at residential units known as Balmoral Apartments, situated at 188-198 Riversdale Road, Hawthorn. His brother, Ritchie Toomey, shared a unit with Richard Turner on the second floor of Block 3 of Balmoral Apartments. Access to the apartment was gained by stairs which commenced in a basement car park, but had a main entrance at ground floor level. On the first and second floors the stairway gave way to a landing from which entry was gained to two flats on each floor.

On the evening of Friday 1 March 1996 a “buck’s party” was held for Andrew Hogg at the flat of Ritchie Toomey. Hogg was a friend of Ritchie Toomey and Richard Turner, and also of Cameron Toomey, the younger brother of Ritchie Toomey. The bucks’ party was to commence at about 7.30 pm at Ritchie Toomey’s unit and the guests – some 15 in all – were primarily drawn from the ranks of lacrosse teams with which the plaintiff and his brother were associated. At some time after about 10pm the group walked to a nearby hotel, the Riversdale Hotel, on the corner of Riversdale Road and Auburn Road, where they continued the celebrations. They went to an upstairs bar known as “Uncle Buck’s”, some of them playing pool on its pool tables. On the ground floor there was a bar with poker machines, where one other invitee, David Mounsey, was already present when the main group arrived at the hotel. Mounsey had enjoyed a long lunch with some of his workmates, who were with him in the ground floor bar. He later joined the main group; his workmates went their own way. In common with a couple of other attendees, who also arrived at the hotel during the evening, Mounsey had not first attended at the unit. Throughout the evening much alcohol was consumed, although the rate and quantity of alcohol consumption varied among the participants.

Soon after 1 am on Saturday morning Uncle Buck’s bar was in the process of closing and some of the participants went to the bar on the ground floor. Some participants had earlier departed the function, but those remaining at Uncle Buck’s took their time before departing. The co-tenants of the unit, Ritchie Toomey and Ritchie Turner, did not demur when a consensus emerged, at about 2 am, among those still present at the hotel, that the party goers should return to the unit at Balmoral Apartments. Ritchie Toomey, however, held an unstated anxiety that the revellers might make too much noise upon their return, thereby disturbing his neighbours in the apartment blocks. He would have preferred that most of them had gone to their own homes from the hotel.

Thus, at about 2 am on the morning of Saturday 2 March 1996, those intending to return to the unit commenced to make their way there from the hotel. It seems likely that they formed more than one group and did not all depart at the same time, nor did they all take the same route back to the unit. Some walked west along Riversdale Road and entered the Block of apartments from the main entrance in Riversdale Road. Others retraced their steps along the same route they had taken when first attending the hotel, namely, walking south along Auburn Road and entering the blocks of apartments from a rear entry which was reached from Inverleith Street, a small street running west off Auburn Road.

Balmoral Apartments was a very large complex comprising three separate blocks of units forming a U shape, with an attractive courtyard and ornamental pool in the centre of the complex. Virtually all of the units had windows looking on to the courtyard, which was hidden from view from Riversdale Road by virtue of the presence of Block 1, which abutted Riversdale Road. Block 3 was on the eastern side of the complex and to its eastern side there was a factory, the high wall of which abutted the rear of the units in Block 3. Block 2 was on the western side of the complex.

Those who chose to enter the complex from the rear entrance included the plaintiff, Cameron Toomey, and his brother, Ritchie. Walking a short distance ahead of them was the eighth defendant, Gregory Moore, a serving police constable, and the ninth defendant, David Spreadborough. Almost certainly, there was another group even further ahead, and probably some others, again, had already entered the apartment complex from Riversdale Road before the plaintiff and his brother did so, and had either reached the second level or entered the unit by the time that the remaining members of the party entered at ground level.

The Turner/Toomey unit was on the second floor of Block 3. Access was gained by a stairway, the main entrance to which was located on the ground floor and was reached from the courtyard. The entrance door to the stairway was self locking, but it seems likely that it had been propped open by those who had first used it to gain access to the unit. On the journey back from the hotel Moore and Spreadborough had been engaging in loud, but good natured, horseplay. The sound of persons shouting as they approached the apartments from the rear entrance was sufficiently pronounced as to waken one of the residents in Block 3, whose open bedroom door on the ground floor faced east.

Rather than walk the approximately thirty metres from the rear entrance to the entrance doorway to Block 3, Moore and Spreadborough ran into the courtyard and past the doorway, with Moore chasing Spreadborough. They ran towards the ornamental pool. The chase stopped briefly and one or both sat on the edge of the pool.

Noise from the courtyard woke another resident, Murray Saunder, whose second floor bedroom window in Block 2 gave a clear view of the courtyard and a good view of the entrance to Block 3. He looked out of his window and saw, he thought, three or four people in the vicinity of the pool. It is probable that Moore and Spreadborough were two of the people he saw. Whether there were others in close proximity and whether the plaintiff and his brother were there are matters to which I will return.

Those members of the party who gave evidence before me denied (with the exception which they noted as to one of the guests) that their members were drunk or behaving in an inappropriate manner, but some neighbours in other apartments in the blocks of flats thought otherwise, and became concerned, to differing degrees, by what they regarded as being raucous conduct of members of the party, in the courtyard and in the stairwell. Probably at least two neighbours telephoned the police to complain about the noise and behaviour of the group.

There is considerable dispute as to the events which followed the entry to the stairwell at the ground floor level of Moore, Spreadborough, Ritchie Toomey and the plaintiff. What is not in dispute is that very shortly after he had commenced to move up the stairway towards his brother’s apartment, the plaintiff fell, either from the stairs leading towards the first floor landing or from the landing itself. The precise place from which he fell is critical to the outcome of this case. Having fallen over either a sloping handrail on the stairs or a horizontal balustrade rail on the landing, the plaintiff entered a void, or gap, between the flights of stairs, and landed on his head on the concrete stairs of the basement. But for prompt action to resuscitate him, the plaintiff would undoubtedly have died from the injuries he had sustained, but the severity of his injuries was such that he is now confined to a wheelchair with incomplete quadriplegia.

After the accident the plaintiff was taken to Box Hill Hospital where a blood sample was taken within an hour of his arrival, which later recorded an alcohol concentration in his serum blood sample of 0.25%. The plaintiff’s counsel contended that that reading could not have been accurate and was at odds with the quantity of alcohol which the plaintiff had drunk, and with observations which others had made of him during the evening. As I will discuss, a second blood sample, taken at Austin Hospital an hour or so after his transfer from Box Hill Hospital, also produced a very high blood alcohol reading.

The plaintiff has brought a claim for damages for negligence and breach of statutory duty against ten defendants (the claim against one of the defendants - the fifth defendant - was compromised between the parties soon after the trial commenced). The events which led to the plaintiff’s crippling injuries took place in a matter of moments but the legal and factual issues raised have been complex and multifarious, and the trial before me of the plaintiff’s claim occupied some 57 sitting days.

At the time of the fall the plaintiff was a supremely fit athlete, 25 years old, and a member of the Australian lacrosse team, which within a month or so was due to travel to the United States for World Championships, where it was anticipated that, as he had in the past, he would excel. The fall devastated the plaintiff’s life, confined him to a wheelchair, with constant pain and immense disabilities. The fall was a disaster too for the family of the plaintiff, his parents assuming a huge responsibility for his care and support, his siblings and his friends (two of whom are defendants) distressed by his suffering and disabilities. The fall, I am quite satisfied was and remains also a matter of acute distress and anxiety for most if not all of those who have become defendants to these proceedings and whose alleged negligent conduct or omissions are claimed to have contributed to the plaintiff’s calamity.

The issues between the plaintiff and the defendants

The plaintiff himself has little or no memory of the events which occurred prior to his injury. The plaintiff’s case relies on the accounts of others - in particular those of Moore, Spreadborough and Ritchie Toomey – all of whom had been present within the stairwell area at the time of his accident. It is the plaintiff’s case that as he walked up the stairs, he had to pass his friends Moore and Spreadborough, who were wrestling, vigorously but good humouredly, on the carpeted surface of the first floor landing. No one, including Moore, says that he actually saw the plaintiff commence to move past the wrestlers, but the plaintiff contends that it is probable that as he eased his way past the wrestlers, with his back to the balustrade railing which ran along the landing, Moore accidentally came into contact with him.

Moore said that as he was pushed upwards from a prone position on the landing by Spreadborough his attention was suddenly drawn to the plaintiff - possibly by a very slight contact – and he saw the plaintiff was behind him and against the balustrade rail and in the process of slowly falling over the rail, whilst gripping the rail with his right hand. The impact, small as Moore contends it must have been, caused the plaintiff to lose balance and to tip backwards over the balustrade. He then fell approximately two floors, entering the void or gap in the centre of the stairwell before landing, headfirst, on the basement steps.

At the point where it was alleged the plaintiff fell over the balustrade the height to the top of its highest horizontal rail was 933.5 millimetres above the carpeted floor of the first floor landing. It is the plaintiff’s case that the Building Code of Australia 1990 (which applied at the time, but has since been replaced by the 1996 Code) required that the height be 1000 mm if the balustrade was to be deemed to satisfy the requirement in the Code that a balustrade must restrict persons from accidentally falling from the floor of the landing. It is the plaintiff’s case - reliant on a considerable body of expert evidence - that not only was the rail incapable of being deemed compliant with the Code, the reduced height had a critical effect on the plaintiff’s response to the knock from Moore. The rail would have come into contact with the body of the plaintiff at a point, so it was submitted, which not merely failed to restrict his falling, as the Code required, but positively facilitated his fall.

The sloping handrails alongside the stairs themselves, leading up to the landing, it is conceded by the plaintiff, were compliant with the Code, those rails being above the deemed compliant height of 865 mm for stair rails. Thus, the plaintiff’s case against those who designed, built or were responsible for checking the dimensions of the safety rails within the stairwell (and whom I will described as “the builder defendant”) must fail at the outset if I am not satisfied on the balance of probabilities that the plaintiff fell over a balustrade rail on the landing rather than over a stair rail adjacent to stairs leading towards the landing.

The owner of the land, and developer of the project, was Davidson Hughes Estate Pty Ltd, the seventh defendant (hereinafter referred to as “Davidson Hughes”), a company which was part of the Hudson Conway Group. Davidson Hughes, in turn, informally engaged as its agent to act as project manager, the tenth defendant, Hudson Conway Management Limited (hereinafter called “HCML”), a company with identical shareholding and the same directors and company secretary as Davidson Hughes. Those defendants deny that they owed any duty of care to the plaintiff with respect to the handrail but, if they did, they deny that they acted in breach of any such duty, having delegated the work to competent independent contractors. The plaintiff contends that they owed both statutory and common law duties of care and breached those duties.

The plaintiff also contends that Davidson Hughes and HCML were, in effect, joint venturers/builders on the project and were negligent in choosing the builder Scolaro Concrete Constructions Pty Ltd, and in failing to exercise what were said to be their own duties of supervision and inspection of the work done on the project. Alternatively, or in addition, the plaintiff contends that the tenth defendant became aware that the balustrade rail failed to comply with the Code and deliberately chose to ignore, rather than correct, the deficiency. The plaintiff contends that as agent for the seventh defendant the knowledge held by the tenth defendant makes the seventh defendant also liable to the plaintiff.

The building, including the stairwell, was designed by Neil Evans and Noel McKernan Architects Pty Ltd, the fourth defendant (hereinafter the company and one of its principals, Noel McKernan, will be referred to, interchangeably, as “the architect”). Among the plans which were drawn by employee architects at that company, under the direction of Noel McKernan, was Plan 18, which specifically addressed the design and construction of the internal and external balustrades and stair rails in the apartment blocks. At the time of the plaintiff’s accident the original Plan 18 had been modified twice and was designated Plan 18B. It is the plaintiff’s case that the Plan, as drawn, contained ambiguities and inconsistencies, which misled both the builder and others into believing that the height at which the balustrade was to be built was 950 mm, measured from the unfinished floor surface, and not to a height of 1000 mm (measured above the carpet over the concrete floor), which McKernan says Plan 18B, properly read, required, and which, the plaintiff contends, was the requirement of the Code.

It was the case for the architect that although the Plan did have some ambiguities and errors it should not have misled any competent builder, since it was clear that the intention was to adopt what McKernan said was the universally recognised and long standing requirement of the Code, and of the building regulations which preceded it, namely, that the balustrade be 1000 mm above the finished surface at a landing. The plaintiff also contends that the architect had a common law and contractual duty to conduct inspections of the finished stairwell, and if it did not learn that the balustrade rail was below the Code height, should have done so. In fact, however, the plaintiff contends that the architect had actual knowledge of the defect in the balustrade but chose to do nothing to ensure that the fault would be corrected.

The architect denies that it had a duty of inspection, save for the limited purpose of ensuring that, in cosmetic terms, the final building was in accordance with the design intent of the architect. The architect denies that it knew or discovered before the plaintiff’s accident that the rail was below the Code requirement.

Assuming that there were ambiguities in Plan 18B, and that certain details on the plan mistakenly suggested that the balustrade should be built to a height contrary to the requirements of the Code, then the system of checks and balances which were obliged both by statute and contract to be put in place should have ensured that the errors or ambiguities would have been picked up and corrected by the surveyor whose job it was to check the plans for compliance with the Code, and/or by the building inspector whose job it was (on behalf of the surveyor) to ensure that what was built was in compliance with the Code, if any deficiency had not already been corrected by the builder, applying his own knowledge, and undertaking his statutory and contractual obligations to ensure that he built in compliance with the Code.

The Building Act 1993 specified that the building could not be constructed unless its architectural plans had first been examined to ensure their compliance with the relevant Building Code and Regulations. Only then could a building permit be granted. Once the building was completed occupation would not be permitted unless and until it was certified that the finished product had in fact been built in compliance with the Code and Regulations. The regime introduced in July 1994 by the new Building Act replaced that which had hitherto relied primarily on certification by surveyors and building inspectors employed by municipal councils. The new regime meant that many former employees of councils ceased to be so employed, and some of them commenced their own businesses as surveyors and inspectors and sought registration as building practitioners under the new Act.

On 1 December 1993 Davidson Hughes engaged Bruce Thomas & Associates to perform the functions of building surveying required for the project. The principal of that firm, Bruce Thomas, was already performing surveying work for Hudson Conway on the Crown Casino project. The Building Act provided that the person with statutory responsibilities as surveyor could not be a company, but had to be an individual who was a licensed building practitioner. Having performed the initial surveying work on this project, Thomas determined that his own involvement in the Crown Casino project necessitated that someone else in his office take the statutory responsibility for this project and he invited Andrew Young, a surveyor who had previously worked with him for about two years, to rejoin his company. In due course Young was made a director of the company Bigridge Pty Ltd (hereinafter called “Bigridge”) - the second defendant - under which corporate name the firm of Bruce Thomas & Associates conducted its business.

The new legislation provided, by s. 24, that building permits and occupancy permits could be issued by the person designated “the relevant building surveyor for the project”, in this case Andrew Young, the sixth defendant. In July 1994, Young signed a building permit, thus certifying that the plans complied with the Code, without querying or correcting the ambiguities in Plan 18B. The plaintiff contends that in so doing Young was negligent, and that Bigridge Pty Ltd was vicariously liable and was also independently liable because Thomas himself had had the opportunity to identify the ambiguities and errors in Plan 18B.

Additionally, Young was required to issue an occupancy permit and for that purpose was required by s. 34 to “cause” the building work to be inspected. By s. 238 the building surveyor was entitled to rely on a certificate by another building practitioner that the building work complied with the Act and the Regulations (which are defined to include the Code). Young relied on a certificate of inspection signed by Andrew Smith, the third defendant, which purported to state that the building work in Block 3 complied with the Code. By s. 128 the surveyor was declared not to be liable for anything done in good faith in reliance on such a certificate.

The plaintiff alleges that in certifying that Block 3 complied with the Code and in failing to discover and raise with the surveyor the fact that Plan 18B was in apparent conflict with the Code, or at least was arguably so, Smith was himself negligent. Furthermore, the plaintiff alleges that neither Young, nor, in turn, Bigridge Pty Ltd, could rely upon the statutory immunity of s. 128 because they did not act in good faith in relying on Smith’s certification. Smith denies that he was negligent in making his certification. The plaintiff also contends that Bigridge had its own contractual obligation to conduct inspections, and could not escape that responsibility by relying on the statutory immunity which applied to Young.

The stairwell from which the plaintiff fell was constructed by the builder, Scolaro’s Concrete Constructions Pty Ltd (“Scolaro’s”), the first defendant, and a company now in the hands of a provisional liquidator. The balustrades and handrails to the public stairs were constructed by a metal fabricator, EFT Welding Fabricators (“EFT”), which was engaged as a sub-contractor by Scolaro’s. That firm is not a defendant, but there can be no doubt that if EFT was negligent in the performance of its work, Scolaro’s would be vicariously liable for any such deficiency. Scolaro’s was essentially a concrete construction company, which had some limited building experience but no previous experience in the construction of such a large scale prestige building. As will emerge, its principal, Mr Orazio Scolaro, read Plan 18B as requiring a height of 950 mm, measured from the concrete. In fact, not one balustrade in any of the stairwells in the entire Block was built to a height of 1000 mm above the carpet, and in some instances the height was as low as 920 mm. It is the plaintiff’s case that in failing to ensure that its sub-contractor built the balustrade in compliance with the Code Scolaro’s was negligent.

The eighth and ninth defendants, Gregory Moore and David Spreadborough, advanced an explanation for the circumstances of the accident which exonerated the plaintiff but rendered themselves potentially responsible, in part at least, for his fall. They did not concede that they owed a duty of care to the plaintiff, in all the circumstances. If they did owe such a duty, however, then these defendants contended that the primary cause of the accident (indeed, so they contended, the sole cause) was the fact that the balustrade was built and remained at an unsafe height, contrary to the requirements of the Building Code. Responsibility for that state of affairs, they contended, was shared jointly between the other defendants (whom I will jointly identify as “the builder defendants”).

The plaintiff’s case against the builder defendants depended on my making a finding that he fell over the balustrade when he was standing on the landing on the first floor. If he fell when he had been standing on the stairs then it is common ground that his claim must fail as against the builder defendants.

The evidence that the plaintiff fell from the landing primarily comes from the eighth defendant, Moore, and the plaintiff’s brother, Ritchie Toomey, and their account is also supported, in significant parts, by Spreadborough. The builder defendants submit that I should reject that evidence, it being inherently unbelievable and concocted, or, at the very least inherently unreliable, and in conflict with other evidence, which I should accept. It was submitted that it is probable that the plaintiff fell from the stairs, and not when on the landing, and that when he fell he was engaged in boisterous and drunken behaviour and was largely the author of his own misfortune.

Alternatively, were I to conclude that the plaintiff did fall from the landing then, so it was submitted by the builder defendants, he could only have just stepped on to the landing from the steps of the stairway, and thus would have fallen at a point at the balustrade within 500 mm of the commencement of the landing, and at a point where the balustrade was permitted by the Code to be at the height it was.

Having broadly outlined the main issues between the parties, I return, then, to the circumstances which led to the plaintiff’s tragic fall, and to the question of the precise place from which the plaintiff fell.

The Buck’s party and events leading to the fall of the plaintiff

Before attending at his brother’s flat the plaintiff first went home, showered and changed after a day’s work as a landscape gardening labourer.

The plaintiff arrived at the flat of his brother at appropriately 7.30 pm. Alcohol was being provided for those who attended the function. One carton of light beer and one carton of heavy beer had been purchased, most likely in stubbies. Little if any alcohol was brought to the flat by the guests. After drinking together, those then present at the flats resolved that they should transfer to the Riversdale Hotel which was only a short walking distance east from Balmoral Apartments. To get to the hotel the group exited from the rear of the apartments through an open-air car park, crossed Auburn Road and entered the hotel. One other intended guest had already arrived at the hotel having not previously been at the flats. That person, Mr Mounsey, was the brother-in-law of the plaintiff and Ritchie Toomey. The party went to the first floor of the hotel where a bar and pool room existed. Those premises were known as “Uncle Buck’s”. They arrived there at about 10.30 pm and the group departed at about 1.30 am on Saturday 2 March 1996. On leaving Uncle Buck’s many in the group went downstairs to a bar which had poker machines, but remained only a short time, not exceeding half an hour. The group or groups then left and walked back in the direction of Balmoral Apartments.

The eighth defendant, Gregory Moore, said that after he and the ninth defendant, David Spreadborough, had entered the courtyard they sat on the edge of the ornamental fountain and began skylarking, and Spreadborough caused Moore’s hand to enter the pond water when trying to resist Spreadborough’s attempt to dunk him. Spreadborough then ran off and Moore chased him into the entrance of Block 3. Moore’s intention was to grab hold of Spreadborough and drag the latter back to the ornamental pond and to dunk him. As the pair moved swiftly up the stairs it became apparent that that result could not be achieved, but on the first floor landing, as Moore caught up to Spreadborough, the latter either stumbled on the last stair before the landing or else was caught by Moore, but in any event he fell to the floor, with his body coming to rest on the landing and possibly his feet overhanging the last step before the landing. In that position Moore fell on top of him, both of them lying on the landing but with Moore’s body being closer to the balustrade and Spreadborough being closer to the wall.

They commenced to wrestle and Spreadborough managed to roll from being on his stomach to his side – with his back to the wall, and Moore was alongside him, also lying on the ground, and with his back to the balustrade. In that position there was limited room for any person to pass by the two struggling men. At the top of the stair to the landing the width between the balustrade and the wall measured 98 cm and thereafter the landing widened to 118.8 cm at the point of the first upright post on the balustrade.

Ritchie Toomey said that he and the plaintiff had lagged behind Moore and Spreadborough as they had walked back to the flats from the hotel. He did not see any skylarking at the fountain but as he and his brother entered the courtyard of the flats he saw the eighth defendant, Moore, chasing Spreadborough from the fountain towards the entrance to the flats. He quickly followed them, leaving the plaintiff to fall behind. Ritchie Toomey was concerned about neighbours being disturbed by the noise of the two men but when he came upon them wrestling on the first floor landing he did not remonstrate with them or otherwise tell them to be quiet, but he passed them and ran up the next flights of stairs towards the second landing, where his own flat was located. He said that he did so because he could hear the sounds of others in the party who were outside his own flat and he was concerned that they could not gain entry to the flat and would themselves disturb residents.

To pass by Moore and Spreadborough, Ritchie Toomey said that he had to place his lower back against the balustrade and edge sideways past them. He said that as he passed the two men Moore was above Spreadborough, holding the latter’s arms with his own hands.

Moore told me that as he and Spreadborough had been playfully struggling, Spreadborough had been lying with his back twisted partly towards the wall, on an angle to the balustrade, but substantially parallel to the wall, and he, Moore, had been above and to the side of Spreadborough, but also facing the wall, to some degree. Moore did not recall holding the arms of Spreadborough, but said that when they first went to the ground Spreadborough had grabbed him in a head lock and pushed Moore’s head down, and Moore had attempted to break free of that hold. Moore said that he had not been aware of Ritchie Toomey passing by him.

Moore said that as he managed to pull his head out of Spreadborough’s hold he moved up to a position on his knees and then he believed that he felt a very slight sort of contact, so slight that he was not sure if he actually felt it or simply deduced that he must have made contact, having regard to the movement of the plaintiff which he then observed. He turned his head and saw the plaintiff facing him but leaning backwards over the balustrade and slowly tipping over it. As he was tipping, the plaintiff had his right hand gripping on the balustrade rail, by his right hip. The plaintiff’s hand was about one or two inches from a weld in the balustrade at which point the sloping handrail from the stairs met the horizontal balustrade rail over the landing.

When Moore had turned towards the plaintiff, the plaintiff’s feet had left the ground and he was very slowly tipping over the balustrade. The plaintiff then disappeared from view. As the plaintiff fell Moore heard several “clunk” type sounds coming from below the landing. Moore rushed downstairs, and having been alerted by yelling, so too did Ritchie Toomey. When Moore and Ritchie Toomey got to the basement, two floors below, the plaintiff’s head was on the concrete landing at the bottom of the lowest steps and his legs were still on the steps.

In his evidence David Spreadborough gave a different account to Moore of the lead up to events at the courtyard fountain. He said that he and Moore had been talking on the way back from the hotel and that when they entered the courtyard from the rear entrance Moore had chased him towards the fountain, where the chase had stopped, until splashing took place between them and he then ran into the stairwell pursued by Moore. Spreadborough, however, substantially confirmed the account given by Moore as to the events on the stairway preceding the plaintiff’s fall, although there were variations in his recollection to that of Moore as to some detail of events.

Spreadborough said that not only did he not see Ritchie Toomey pass by, he did not see the plaintiff either, save for observing the plaintiff’s feet and lower legs disappearing from his view as the plaintiff’s body was falling from the landing towards the basement. His attention had been attracted by a noise from the plaintiff as he fell, and just before he saw the plaintiff’s feet disappearing he saw Moore motion as though he was trying to reach out in the direction where the plaintiff would have been as he started to fall. When he made his observations of the plaintiff falling, Spreadborough said that he was then still prone on the floor and looked behind the kneeling Moore and through the vertical bars of the railing on the landing. Immediately prior to these events he had been on his back and had been attempting to remove Moore from on top of himself, by pushing Moore’s upper body and arms with his own hands. He had forced Moore back so that Moore ended on his hands and knees alongside Spreadborough. He had pushed Moore upwards from Spreadborough’s position on his side, and with his back to the wall. Although his account of the wrestle was similar to that of Moore, he denied that he had had Moore in a headlock, as Moore had claimed.

The account of Greg Moore as to the plaintiff’s fall was strongly challenged during the trial, as were Ritchie Toomey’s and David Spreadborough’s accounts. It was submitted that Moore was not a witness of truth; that he had advanced an account which while trying to minimise his own involvement sought to advance the plaintiff’s claim for damages against other defendants by having the fall take place at a location where it was known that the height of the balustrade was in breach of the Building Code of Australia. Moore’s account should be rejected, it was submitted, because he was himself probably drunk at the time, and because his version of events conflicted with earlier accounts that he had given. Furthermore, so it was submitted, it was improbable that the fall could have occurred while the plaintiff was on the landing, but more probably occurred while the plaintiff was on the stairs (where the sloping handrail was higher than the Code required). Equally strong criticisms were directed towards the evidence of Ritchie Toomey and Spreadborough.

The possibility that the fall may have occurred over a sloping stair rail was fuelled by Ritchie Toomey’s evidence that some weeks after his brother’s accident he caused an architect and a builder to inspect the stairwell and discovered as a result of their measurements that the balustrade over the landing was below the Code requirement of 1000 mm. He also discovered that the sloping hand rail was compliant with the Code. (Although evidence of the witnesses Elliot and McLachlan was not entirely clear it tended to confirm that Ritchie Toomey had said to them when they attended for this purpose that it was at the landing, not the stairs, where his brother fell.) Counsel for the builder defendants explored the possibility with witnesses that the fall was not from the landing and when the defendants’ cases commenced the builder defendants located and subpoenaed other participants in the buck’s party, who had not been called by the plaintiff. Additionally, they arranged for some residents of Balmoral Apartments to give evidence. The technique adopted for the buck’s party participants was that counsel for the third defendant would call each such witness, usually without a statement having been taken in writing from the witness, and counsel for the second defendant would then cross examine the witness. Among the witnesses called in this way was Ashley Davidson, whom the builder defendants contended was an eye witness to the plaintiff’s fall and whose evidence, so it was submitted, contradicted that of the witnesses who claimed that the plaintiff had fallen from the landing, not the stairs.

There are particular reasons why I must exercise care in assessing the evidence of Moore, Ritchie Toomey and Spreadborough. In the first place, they are very close to the plaintiff and well appreciate the importance to him and his family of his success in this litigation. Moore and Spreadborough are also defendants, and have an interest in ensuring that it is the builder defendants against whom the plaintiff succeeds, rather than themselves. Additionally, all three had been consuming alcohol over a long period of time on this evening and their accounts are likely to be impaired to some extent by the effects of intoxication, notwithstanding the fact that they have an interest in minimising the estimates of their alcohol consumption, so as to minimise their own responsibility for the plaintiff’s fall (especially Moore, as a serving police officer). It is necessary that I critically examine this evidence and not lose sight of the fact that notwithstanding the severity of the plaintiff’s injuries, it is he who carries the onus of proof in this action. It is appropriate to remind myself, too, that the consequences of an adverse finding of negligence would also be significant for any defendants, especially those with continuing engagement as professionals within the building industry.

From what place did the plaintiff fall?

The issue of the place from which the plaintiff fell is to be determined first by direct and indirect evidence of witnesses who were at or about the scene of the accident on the night of the plaintiff’s fall. Secondly, on both sides of the debate as to the location of the fall, the parties sought to gain support from the evidence of experts in fields such as biomechanics and anatomy. I will deal with that expert evidence later, but I first assess the accounts of those who were present at the scene on the night of the plaintiff’s fall.

(A): The evidence of persons attending the Buck’s party

Moore, Spreadborough and Ritchie Toomey swore that the wrestling had occurred when the wrestlers were on the first floor landing. For them to be wrong about that would require an extraordinary congruence of - presumably alcohol induced - erroneous recollection, or else they must be deliberately lying. Mr Gillies, for the builder defendants, submitted that the latter explanation was correct, although he also contended that they were each much more affected by alcohol than they were willing to admit.

It is notable that counsel for the plaintiff chose not to call many of the persons who were present with the plaintiff during the evening celebrations. Most of the missing participants in the buck’s party, and also a number of residents from the nearby apartments were, instead, called by one of the defendants for the purpose for exposing that witness to cross-examination by other defendants whose interest coincided with those of the party calling the witness. Counsel for the plaintiff did not, of course, contend that the defendants should be precluded from calling such evidence. They contended that none of those witnesses had observed the accident and thus had no relevant evidence to give. I consider that their evidence was of relevance but I recognise that for a witness to be called in that manner - without him (in the case of most of the buck’s party participants) having had any legal advice, and in most instances without the taking of any statement from the witness, in advance - the approach adopted was likely to have unsettled the witnesses, especially where the witnesses were to be serially questioned by many counsel (as I permitted at that stage of the trial, but not later). I make allowance for the circumstances of their being called to have diminished their ability to recall details when questioned for the first time, in such circumstances, some five years after the traumatic events of this night. On the other hand, it was also necessary to make allowance for the fact that the persons at the buck’s party were all close friends of the plaintiff and would have had a natural sympathy for his plight.

There is no doubt that there are some differences between the accounts of the three witnesses, Moore, Spreadborough and Ritchie Toomey, and some internal inconsistencies in each account, and also some differences as between their accounts and those of the witnesses called by the defendants. I will deal first with the challenges made, and the responses, concerning the reliability of the three critical witnesses.

Moore’s account departed from (or, at least, added to) that which he had given to police officers who attended the scene. He agrees that he did not tell them that he had been wrestling and that he had apparently come into contact with the plaintiff. He told one police officer, Constable Franklin, that the group was involved in “skylarking”. Counsel, when cross examining Franklin, converted that description to “fooling around, pushing and shoving, that sort of thing”, and upon the witness not demurring, then asserted that “Moore told you that Cameron Toomey was involved in that pushing and shoving, didn’t he?”. The witness said that he would have to say yes. In context, I did not understand that answer as necessarily being that the plaintiff was one of those “pushing and shoving” so much as being one of those “skylarking”, in an unspecified manner. Moore told a second police officer, Constable Ellaz, that “they” were mucking around “in the stairwell”, and running, when the plaintiff fell “off the side of the stairwell”.

Neither police officer had made a note of what was said by Moore, and neither was purporting to have a precise recall of anything he said. Certainly, it was not suggested by the witnesses that anything had been said by anyone at the scene that was inconsistent with the account that the plaintiff had fallen from the landing. Nonetheless, it is clear that Moore did not give an account which might have caused the police officers to take their investigations further. Moore denied that he was trying to minimise his involvement, lest his own conduct be the subject of investigation which might be embarrassing to him as a police officer, but I consider that that must have been one consideration in his mind at the time.

Mr Gillies contended that Moore’s evidence was replete with deliberate vagueness and evasion, and that his account in evidence differed significantly from accounts earlier given at a time prior to his joinder as a defendant to Mr Dalton QC, who was then acting for the plaintiff, and in his synopsis of evidence filed prior to the trial. There is no doubt that Moore was vague in some of his evidence, but given the passage of time, the consumption of alcohol and the panic of the moment after the plaintiff’s fall, that is not necessarily a product of deliberate evasion or dishonesty. Indeed, Mr Gillies sought to rely upon the accuracy of Moore’s account as to the manner and speed at which the plaintiff fell in order to support his contention that the plaintiff must have been falling over the sloping stair rail and not the balustrade on the landing. The divergences between the various accounts which Moore had given in the past and in his evidence did not seem to me, however, to be at all significant, including the omission from earlier accounts that Spreadborough had placed him in a headlock (a manoeuvre which Spreadborough did not recall having occurred).

Moore would not concede that his admitted behaviour in splashing and chasing Spreadborough in the courtyard, and on the stairs, at 2 am, was unacceptable. In so responding Moore was at the very least showing a lack of insight, and more than likely was demonstrating an anxiety, either conscious or instinctive, that his conduct as a police officer, even now, not be open to criticism. Although his response to this question was less than frank it was not of such weight in the context of the lengthy questioning to which he was subjected as to lead me to conclude that his evidence as to the location of the fall was intentionally false.

I think that to varying degrees the evidence of each of Moore, Spreadborough and Ritchie Toomey may have understated the amount of alcohol they had themselves consumed that night, but I am not persuaded that any such understatement was a deliberate attempt to mislead the court. I do not think that any of them intended to get drunk during the evening and I believe that each of them believes that he did not do so. The objective evidence - including the inappropriate behaviour at the apartments, both that admitted by them and that which on the evidence of the independent residents and others at the scene I am satisfied did take place – suggests that the members of the group were all significantly affected by alcohol to an extent that they had become boisterous, but not to such an extent that they were all or any of them so drunk as to be staggering and incoherent.

Moore’s description of his own condition, namely, that he was only slightly affected and would on his own estimate have only been at about .05% level, was probably an underestimation, but there is a body of evidence that demonstrates that immediately after the accident he was alert and capable in assessing the plaintiff’s condition and in providing life-saving CPR to him. That was not the conduct of a person who might be described as being drunk and incapable. It would be consistent, in my opinion, with his own estimation that he had two to three cans of “Cold” beer in the flat and three or four pots of heavy beer at the hotel. Constable Franklin agreed that he had not formed the opinion that Moore was very intoxicated. Mr Tarrant described Moore as “a little bit more sober” than the others who were present at the scene after the accident. Ritchie Toomey said that he had drunk three cans of beer at the flat prior to departure for the hotel and then eight to ten pots of heavy beer at Uncle Buck’s and one in the downstairs bar, a rate of consumption which I do not consider was matched by Moore.

It is of importance in my assessment of the evidence of these witnesses that Moore’s account of what took place in the courtyard upon their entry through the rear gate differs from Spreadborough’s but I consider it likely that Spreadborough was more affected by liquor than Moore. It is important, too, that Moore, Ritchie Toomey and Spreadborough all denied that conduct such as was described by Mr Saunder had taken place, and yet I am satisfied that Mr Saunder’s account is accurate.

Mr Gillies submitted that Ritchie Toomey’s evidence was inherently improbable in many aspects, and was, at times, demonstrably false. He submitted that it was improbable that Ritchie Toomey, concerned as he said he was about noise emanating from some of his guests from outside his apartment, should have passed by the wrestling Moore and Spreadborough without telling them to desist. It was improbable too, he submitted, that having passed them he did not see the fall occur, given that his then position on the stairway would have given him a clear sight of the landing below him. More significant, perhaps, was the denial by Ritchie Toomey that he was the author of some of statements recorded by ambulance officers and by staff at Box Hill Hospital to the effect that his brother was intoxicated. I agree with Mr Gillies that since Ritchie Toomey, alone, had accompanied his brother in the ambulance to Box Hill Hospital, he was probably the author of at least some of the statements which were recorded as to the circumstances of the accident and the state of sobriety of the plaintiff. Of course, the ambulance officers had obtained information at the scene from persons other than Ritchie Toomey and that could have been the origin of some of the recorded comments. But given the traumatic circumstances of his attendance at the hospital and of travelling in the ambulance it is not at all surprising if Toomey’s recollection was deficient in these respects. He did not deny that he would have been asked about his brother’s alcohol consumption but said of himself that he was “in some sort of shock” and that he just had snippets of memory of events at the hospital. His failure to behave towards and to observe events at the scene may in part be explained by his own consumption of alcohol. I deal later with remarks attributed to Ritchie Toomey by Dr Wirth and other staff at Box Hill Hospital. I have concluded that it is unlikely that Toomey did make some of the comments attributed to him.

In common with others who had attended the function, Ritchie Toomey’s evidence was at times vague or uncertain in some details. He considered that whilst he was himself affected by alcohol, and that his brother had glazed eyes and would have been unfit to drive a car, neither he or his brother were affected by alcohol to the extent suggested by the blood alcohol assessments of the plaintiff’s blood.

Although Ritchie Toomey was the subject of very firm cross examination (by multiple counsel) I was impressed by his evidence. Far from displaying an evasive manner, as Mr Gillies suggested he had, I regarded Ritchie Toomey’s evidence as being an honest attempt to respond to all questions, and whilst there were the sort of deficiencies and uncertainties which might be expected in such circumstances, having regard to the lapse of time, the consumption of alcohol and the trauma of the events which he was attempting to recall, nothing in his cross examination led me to conclude that on the critical question of the location of the wrestling, and fall, his evidence was unreliable or false. Indeed, whilst I have highlighted aspects of his evidence which produced criticism the totality of his evidence was clear and frank. (I note, too, that I have not dealt with his responses to the challenges to his evidence in any depth, although they often constituted a reasonable answer in themselves).

As to Spreadborough’s evidence, Mr Gillies submitted that he claimed to have a very clear memory of certain critical matters, such as the place where the wrestling took place, but was vague on many other matters. Mr Gillies contended that his conduct before and immediately after the accident when he ran around the back of the block of flats, and over fences of private flats, looking for an entrance-way which the ambulance officers could use, and later, again, in running aimlessly from the flat and for many kilometres in an apparent emotional state (and his denial that that was his state at the time), all suggested that Spreadborough was more affected by alcohol than he conceded. Spreadborough had no clear idea of how much he had to drink, but said that when he left the hotel he was in control of his actions and was not feeling the effects of alcohol at all. Spreadborough’s recollection of events after the accident was deficient to the extent that he could recall having had a conversation in the flat with Ritchie Toomey, at a time when Ritchie could not have been present. I accept that the shock of the accident was undoubtedly one factor in producing that deficiency in memory.

Observers at the scene, including Mr Tarrant, regarded Moore as having been less affected by alcohol than others, and I consider it likely Spreadborough was considerably affected by alcohol.

None of the other party goers, with the exception of Ashley Davidson, suggested that they had seen the events occurring at the time of the plaintiff’s fall.

Ashley Davidson, who was called by counsel for the third defendant, for the purpose of his being cross examined by Mr Gillies on behalf of all of the builder defendants, said that he was at the landing outside the Turner/Toomey flat on the second floor when he saw wrestling taking place on “the stair area” below and agreed to the proposition that the wrestling was on the “flight of stairs” below which he was standing. He said that he saw the plaintiff falling down the stairwell. The plaintiff had already gone “over the balustrade” when Davidson observed him. Davidson had not seen the plaintiff either on the stairs or the landing. He saw the plaintiff, only when he was falling, and saw him hit the “the bannister of the lower stairwell”. Not surprisingly, the builder defendants seek to rely on that evidence as demonstrating that the wrestling and the fall took place at the stairs, not adjacent to the landing.

I am not at all persuaded, however, that the evidence of Davidson does provide reliable support for the contention of the builder defendants. Indeed, a careful re-reading of the transcript of his evidence strongly confirms my impression at the time, that Davidson was not at all confident of the precise place where the wrestling took place. In questioning this witness Mr Gillies was anxious to have him agree that he was in a place where he could not have seen the wrestling unless it was taking place on the stairs. Rather than simply show the witness the many photographs of the scene which were in evidence and asking him to locate the positions of the plaintiff and himself, counsel sought to commit the witness to particular locations by a process of very leading and multi-part questions (often requiring the witness to make assumptions, for the purpose of the question, which the witness was unwilling to accept) before any photograph was shown to him. I recognise that he was being cross-examined by Mr Gillies but the manner of his questioning was an extreme example of an attempt by counsel to put words into the mouth of a witness, and yet Davidson constantly stressed that he was not confirming the contention, which was contained in the questions, that he had been standing where Mr Gillies suggested he must have been when he made his observations. As he later agreed when questioned by Mr Casey, he could well have been standing on steps leading to the second floor landing and thus have observed the wrestling taking place on the lower landing.

There were many aspects of the evidence of Davidson which would, in any event, cause me to be cautious before treating it as being accurate or reliable. Mr Gillies, for example, was forced to submit that it was false evidence when Davidson said that he had drunk not more than two beers at the hotel. Davidson could not remember if he had any alcohol at all at the flat; could not remember what route to the flat he had taken from the hotel, nor whom he was with; could not recall who he saw wrestling. I am not persuaded that Davidson’s evidence on the question of the location of the wrestlers is inconsistent with the accounts of Moore, Ritchie Toomey and Spreadborough, let alone that it is more reliable than their account even if it differs from theirs.

Thus, the evidence of the party goers, unless I disbelieve Moore, Spreadborough and Ritchie Toomey (or, more correctly, unless I am not persuaded of its accuracy on the balance of probabilities) places the location of the wrestling and of the plaintiff’s fall at the landing on the first floor. Mr Gillies submitted that the independent evidence of the residents of the Balmoral Apartments, whilst not being direct evidence of the place of the fall, is so much at odds with that of Moore, Spreadborough and Ritchie Toomey as to demonstrate that the accounts of those three witnesses are false and should be rejected outright. Alternatively, if the account of Moore is accepted as to the manner of the fall then, he submitted, it could only have occurred at the first flight of eight steps running from the ground floor towards the landing, and it was not possible for it to have happened at the landing.

(B): The evidence of residents at Balmoral Apartments

The accounts of Moore, Spreadborough and Ritchie Toomey are at odds with that of Murray Saunder, in some important respects. After observing a number of young men near the courtyard pool he had returned to his bed, but was shortly thereafter drawn back to his second floor window overlooking the courtyard and facing towards Block 3. He had heard loud banging sounds and laughter, and when he looked across towards the entrance to Block 3 he saw one person standing just inside the doorway holding the nozzle of a fire hose which was on a reel just inside the foyer. He was pretending that he was about to spray two people who were on their hands and knees on the first set of stairs which led from the ground floor area towards the first floor landing. The two people on the stairs appeared to be crawling or about to crawl, up the stairs. Saunder returned to bed. Two or three minutes later he heard shouting and having, again, arisen saw a police officer entering the courtyard and also noticed a person phoning from the Turner/Toomey flat, 19C, from which, I was told, the ambulance was phoned. There was an atmosphere of panic, and an ambulance soon arrived.

Moore, Spreadborough and Ritchie Toomey denied that any such conduct as described by Saunder had occurred on or near the stairway in their presence, or that they, or the plaintiff, had been participants in the conduct observed by Saunder. Saunder seemed to me to be a reliable witness and I accept the evidence which he gave. I can not entirely discount the possibility that the persons he saw within the stairwell did not include any of these three witnesses. There is considerable confusion in the evidence as to the sequence, timing, routes and makeup, of the groups of persons who made their way back from the hotel towards the apartment. Whilst there was certainly one group ahead of Moore and Spreadborough when they entered the stairwell, and that group had proceeded to the flat on the third floor (and some had entered it by the time the plaintiff fell), there is at least the possibility that Mr Saunder may have seen some members of that earlier group or else had seen some persons who had arrived in the courtyard after Moore and Spreadborough entered the courtyard but had entered the Block at a time when Moore, Spreadborough and the Toomeys were yet to do so.

Moore - who was never questioned about the account by Saunder (which was given later in the trial) - had told me that there were some people walking back to the apartments who were behind himself and Spreadborough and behind the Toomeys. I also heard evidence of some persons who returned alone to the apartments and some believed they may have entered via Riversdale Road and not by the back entrance (Davidson, Phillip Moore, MacLachlan). So the possibility that Saunder saw someone other than these four persons can not be rejected outright. However, when he observed the conduct within the foyer of Block 3 Mr Saunder did not say that he observed any persons still in the vicinity of the pool area where he had seen persons who probably included Moore and Spreadborough when he made his first observations only a few minutes earlier. Furthermore, although many were not asked the question, no one else at the function volunteered that they had acted in such a manner as described by Saunder, or had seen anyone do so, at or near the foot of the stairs.

I conclude, therefore that it is probable that more than one of the three or four persons whom Saunder had seen at the pool, if not all of them, were those later observed by Saunder to be acting in a good humoured but rather juvenile manner within the foyer. Why then has none of the three witnesses (the plaintiff has no relevant memory, at all, due to his injuries) acknowledged that such conduct had taken place? One possible explanation is that the witnesses have deliberately suppressed the evidence, because it is inconsistent with the detail of the account of Moore and Spreadborough of them running into the foyer and continuing to run up the stairs until they fell together on the first floor landing. Alternatively, is it a reasonable possibility that they might have forgotten such conduct as Saunder described?

Saunder did not see the persons actually crawl on the stairs and his observation at that time seems to have been very brief. Although it might suggest that the four persons were much more intoxicated than they thought they were, it could be that the conduct described by Saunder was so brief that in the context of continuing raucous and unruly behaviour, which I am satisfied had continued from the time of the journey from the hotel, that they simply do not recall this particular behaviour. That would require that all three of the witnesses, who have some memory – Moore, Ritchie Toomey, Spreadborough - suffered a similar deficiency in recollection, and if the recollection is so faulty as to this matter how reliable could it be as to matters such as the location where the plaintiff fell?

On the first floor of Block 3 Mr Keith Tan lived in apartment 17B which was one of two which were entered from the landing from which the plaintiff claims he fell. Mr Tan’s flat would have been on the opposite side of the landing to the location where the wrestlers said they were so engaged. Mr Tan was wakened by noise and the sound of voices in the stairwell. It sounded to him like a group of men coming home after a night’s drinking. The noise became louder and he heard people running up and down the stairs. He heard someone banging on a door and demanding, with swear language, that he be let in. That noise appeared to be coming from the level above his unit, that is, the second level where the flat of Toomey/Turner was located. At 2.33 am an anonymous caller rang D24 to register a complaint about youths “throwing rocks at each other” at Balmoral Apartments, and a patrol car with Constables Franklin and Ellaz was despatched to the scene. Mr Tan also phoned the police, and whilst he was on the phone he heard the sounds of horseplay, or scuffling, consistent with it taking place on the first floor landing. He heard a sound consistent with persons banging against the bannister “within the hallway” and against a wall. Shortly after that he heard someone call out for an ambulance, and a statement that a person had been hurt, and the sounds became much more serious in tone.

The evidence of Tan, whilst inconsistent in some details with that of the eye witnesses is not inconsistent with the account of there being a struggle on the first floor landing, and with the injury occurring at the time of that struggle. None of the party goers, however, accepted that there was noise and conduct of such loudness and persistence as described by Tan. They denied that persons had been running both up and down the stairs, and he accepted that it may have been the sound of persons running in one direction only, possibly as persons went to the second floor landing, as well as the sound of those who reached the first floor landing and then engaged in wrestling.

Mr Peter Tarrant, whose bedroom faced east from the ground floor of Block 3, said the sounds of the persons which first woke him were those of persons in good humour, skylarking. The sounds came from the direction in which many of the party goers were returning from the hotel. He returned to sleep and was awakened again by someone in his back yard. It was Andrew Hogg, who was desperately searching for an alternative entrance to the basement steps so that the ambulance could reach the plaintiff. Spreadborough said that he was accompanying Hogg in this rather futile exercise, and they had climbed over and onto walls between the rear gardens. Hogg, who said he had drunk three cans of heavy beer at the flat and then 4 to 6 stubbies or pots of heavy beer at the hotel, said he was functioning OK and was not really affected by alcohol. Mr Tarrant, an astute observer, said that Hogg was obviously affected by liquor, but noted that he was also distraught.

Having observed the many witnesses who gave evidence about the events on the journey back from the hotel and at the apartments I am persuaded that none of them were deliberately suppressing evidence or intending to mislead me. There were, however, significant deficiencies in their evidence. Some could not remember what route they took back to the apartments; many could not be sure who they accompanied on the journey. None thought that they were unduly noisy or boisterous on the journey; none thought (with the exception of Mr Mounsey who was identified by many as being drunk) that any of their group was significantly intoxicated. The witness Peter Tarrant, who impressed me as a very sensible and observant witness and who knew some of the young men and had seen many of them before, regarded them as “good lads”. The witnesses all seemed to me to be fundamentally honest young men, and despite the rigorous cross examinations to which they were all subjected I saw no evidence of collusion to produce a false account of the events of this night. That is not to say that because they were essentially decent young people their evidence was necessarily credible or reliable.

In my view, the probability is that to these fit, happy, young men, their conduct was merely good natured fun and nothing that could be described as unruly, excessive or unreasonable. Their assessment was different to those who had been woken by their noise, and the difference in perception was largely a product of the quantity of alcohol the members of the group had consumed, and the narrow perceptions of young men as to what conduct might be classified as being unruly, and the fact, also, that what to them might not have seemed to be loud noise would seem very different to those residents who had been woken late at night in what was otherwise a silent apartment complex. No doubt the stairwell would itself cause even modest noise to be accentuated.

In other words, the group had collectively and individually drunk more than they appreciated, and had been affected by the alcohol to a greater extent than they appreciated, too. Their conduct, to an objective bystander, was more unruly than they imagined. To the residents of the apartments they exhibited all the high spirited and noisy signs of a group of young men who had engaged in an evening’s excessive drinking, and the assessment of the witnesses in that regard were entirely apt in my opinion.

Those conclusions mean that I must be extremely careful when assessing the evidence of any of these witnesses. Not only would the amount of alcohol they had consumed impair the reliability of their recollection or events, but the extraordinary and traumatic event in which their close friend was crippled for life must also have been a profound shock, a circumstance which itself may have interfered with the reliability of their memory for details of events leading up to that occurrence. Additionally, these events had occurred five years before and the majority of the party goers had not made a statement or been asked to recall the events prior to taking their place, under defence subpoena, in the witness box. As many of the witnesses made clear, the shocking events of this night were not matters on which they were anxious to dwell or to be reminded over those years.

(C): Some other arguments

Although it is not necessary that I deal with all of the arguments and passages of evidence which were raised by counsel for the builder defendants in their written and oral final addresses, as to this issue, I will address some arguments which were given particular emphasis as discrete issues rather than merely forming part of a broader contention.

The builder defendants referred to statements recorded, first, in the report of the MICA ambulance officers who attended the scene, and secondly, in the report of the ambulance officers who transported the plaintiff from Box Hill Hospital to Austin Hospital, that the fall was over a reported distance of only three metres. The first report must have been the product of advice from those present at the buck’s party, most likely by Moore or Ritchie Toomey. The second report records that Ritchie Toomey escorted his brother in the ambulance.

The estimated distance is much shorter than would have been the case had the plaintiff fallen from the landing, so it was submitted. That therefore suggests that he must have been standing at a point lower than the landing, most likely on the stairs leading to the landing.

As against that estimate, the Austin Hospital Triage Assessment report noted on the same page both a “message” from the ambulance which was travelling to the hospital that the plaintiff had fallen “15 feet”, but also a note under the heading “nursing history/assessment” (which expressly records that this advice came from Ritchie Toomey) that the plaintiff suffered head injury “following falling down three flights of stairs (accidentally pushed)”. The history of a fall down three flights was also given to Dr Steele. Furthermore, the notes of Dr Wirth at Box Hill Hospital record that the plaintiff had fallen “three storeys”. Certainly, at the scene, neither the ambulance officers nor the police were given any information which would exclude the landing as having been the point of the fall.

Counsel for the builder defendants also noted the relative lack of injuries to the plaintiff’s body. They submit that the plaintiff’s injuries would have been much more severe than they in fact were had he fallen the approximately six metres to the basement from the first floor landing, and they were much more consistent with a shorter drop of perhaps approximately three metres to the basement from near the top of the eight steps which led from the ground floor towards the intermediate landing, on the way to the first floor landing.

Dr Burke agreed that the head injuries suffered by the plaintiff were less severe than he would have expected for a fall of about 20 feet from the landing, but he said that there could be an explanation for that since it was not known precisely how the plaintiff landed and it may have been that he hit something on the way down which made the impact to the head less severe. The plaintiff’s injuries, apart from his spinal injuries, were a sore shoulder, grazed toes to his right foot, a graze to his lower right leg, and a small wound to the back of his head and on his forehead. Those injuries, coupled with the sounds of him striking railings on his way down, and the finding of his shoe and watch, on the set of eight stairs opposite and below the landing all indicate that the proposition which Dr Burke postulated - of the plaintiff striking objects on the way down - was probably the case.

The total future loss of earning capacity would then be $1081,028. This figure requires adjustment for contingencies and for the plaintiff’s residual earning capacity. The plaintiff’s counsel allowed a total reduction of 20% for contingencies and for future earning capacity. Counsel for the defendants submitted that the plaintiff’s future earning capacity should be assessed at 25%, in other words, the calculated loss of future earning capacity should be reduced to 75% of the total. Furthermore, then a further reduction of 7.5% for contingencies should be made.

I will deal first with the question of the plaintiff’s future earning capacity. The plaintiff is a remarkably optimistic man, with a determination to succeed at whatever he tries, and a willingness to persevere and to put up with, but not be defeated by, disappointment. He has pursued coaching, conducted counselling and made speeches, he has travelled interstate in connection with the dog program. He has travelled overseas several times since his accident. He has skills with computers which he has used since his injury, and has earned some income. There is no doubt, however, that he was offered that work by persons who were sympathetic to his plight and anxious to do what they could to maintain his spirit and motivation. His future employment prospects are unlikely to offer many instances of such generosity. There are enormous difficulties facing his efforts to gain paid employment.

Not only does the plaintiff have the very severe physical injuries which I have discussed, he has also suffered brain damage. Dr Burke said that he was capable of sedentary employment, probably with computers, but it was doubtful that he could work away from home, and the range of vocations in which he could hope to gain employment had been significantly reduced. He regarded the plaintiff’s self assessment as being very realistic, namely that it would be near impossible for him to travel to and attend a place of employment, that he becomes very tired and has bowel problems which the plaintiff said meant he could realistically offer an employer only part time casual computer work, from home, and that it would take him a lot longer than able bodied persons to do any work assigned to him. He told me that the computer tires him and it is not something he would want to do for long periods, anyway. Mr Murphy’s assessment of his friend was that he would probably prefer to work in areas such as with the dogs or in counselling, and if in computers then in web design. He did not see much likelihood of the plaintiff working in the family business to any extent. Dr Burke said that the neuropsychological assessment of his brain injury suggest that that is a significant factor, and was a significant factor in his level of fatigue. He said that that injury alone was such that even if he did not suffer quadriplegia the plaintiff would in any event be facing difficulties in finding work that he could perform.

Occupational rehabilitation consultant Amanda Dudley said that he faced many barriers to employment, including the fact that employers would not make the allowances he would require. She did not think the family business was a viable long term option for him, and thought he could not work away from home. Whilst she concluded that he might be capable of working for up to 25 hours in a week, that would be an irregular occurrence. She said that she found it very hard to identify any work that he might be able to do; even his computer skills and training were limited.

In my opinion, it is completely unrealistic to assess the plaintiff’s retained earning capacity as representing 25% of the sum assessed as representing his loss of his future earning capacity. In my opinion, it is more like 10%.

In Lindhe v Royal Children’s’ Hospital[66] I discussed, in some detail, the application of the High Court’s decision in Malec v Hutton Pty Ltd[67], still the leading authority on the application of contingencies. In the present case there are a multitude of contingencies, some favourable to the plaintiff’s employment and health prospects, some not. In addition to the ordinary vicissitudes which all persons face there are additional ones the plaintiff faces. He has a reduced life expectancy by virtue of his quadriplegia, which Mr Burke assessed as being, at worst, a 10% reduction in his normal life expectancy. He faces the risk of infections which are potentially life threatening (those being taken into account in the 10% estimate of Mr Burke). His working life, assumed to be to 65 years, might have been cut short. Even the plaintiff’s sporting interest might have impacted on his future employment prospects; he may have travelled overseas often, thus disrupting his career; he may have been injured on the field. On the other hand, he may have succeeded in the family business in a way his father had not. His particular personality and enthusiasm, plus the sort of dedication to excellence and to training which made him excel in sport may have led him to a stellar career in sales or otherwise. These are just a few of the multiplicity of contingencies which would have relevance.
[66]Lindhe v Royal Children’s Hospital, unreported 28 August 1992, at 77.
[67]Malec v Hutton Pty Ltd (1990) 169 CLR 638, at 640, per Brennan and Dawson JJ.

All things considered, I consider it appropriate to reduce the sum which I have calculated by 15% for vicissitudes and by another 10% for retained earning capacity, a total reduction of 25%.

The sum allowed for loss of future earning capacity, therefore, is $810,771.

Griffiths v Kerkemeyer Claim – Future needs

The areas of dispute between the parties as to this head of claim are not substantial, and relate more to the question of contingencies and the weight that I should attach to the various imponderables of the plaintiff’s life.

Counsel for the plaintiff submitted alternative calculations based on different assumptions as to the deterioration of the plaintiff’s condition at or about the age of 50 years. Mr Stanley, making submissions for all the defendants, submitted that it was inappropriate to calculate the damages in that manner because it takes as certain that the deterioration will occur, and that it will occur at 50 years of age. He submitted that the appropriate course was to use the one calculation but to then have regard to the prospects of deterioration. I think that, notionally, the approach suggested by Mr Stanley is a more appropriate approach to adopt in the exercise of assessment of such damages when the questions of future prospects, favourable and unfavourable, can not be confidently assessed.

As earlier discussed, I consider that it is reasonable to assume that the plaintiff’s parents provide support in the order of 40 hours per week. The plaintiff contended it should be 45 hours. Counsel for the defendants have not challenged a 40 hours assessment as being reasonable. Will the plaintiff’s needs for care increase, decrease or remain static? On the one hand, Ms French contemplated the possibility of there being less need for attendant care in certain areas, if it proved to be the case that the plaintiff, by practice and perseverance, learned to perform some tasks for himself that require assistance at present. The sort of items included showering, drying himself, and moving himself to and from the shower. If the improvement occurred he might reduce the amount of assistance required from 1.5 hours on non-bowel mornings, to half an hour, and from 2.5 hours on bowel mornings to one hour. Ms French’s report was written in August 1998, and it did not appear to me that the improvement had in fact occurred that she anticipated might be possible.

Mr Toomey is determined to do whatever he can to stay fit, but the evidence of Mr Burke suggests to me that the more probable course is that his condition will deteriorate in future. Mr Burke, a highly experienced rehabilitative surgeon, with specialist experience of the treatment of quadriplegics and paraplegics, pointed to the risk of arthritis developing in the shoulders, due to overuse in a wheelchair. He discussed also the condition of autonomic hyper-reflexia and the serious complications which it can produce, and also the likelihood of infections and complications therefrom. Mr Burke said that the deterioration of shoulders was quite common for persons with his condition. Mr Burke had examined the plaintiff’s claims for attendant care and agreed with his claims for what he would need once he lived independently of his parents, and said there would be a need not only to retain the amount of services his parents provided but there would be an increased need for attendant care. He said that the plaintiff’s expectation of life was reduced, but only “slightly”, and having regard to the risks of his life being cut short by virtue of such matters as urinary infections, renal failure, complications of spinal paralysis, and other matters, he assessed the reduced expectation of life as being “at worst” ten percent.

As Mr Stanley pointed out, it may be that the plaintiff will develop a permanent relationship and have a live-in partner, who might take over some of the household tasks presently provided by his parents or helpers. Since his accident the plaintiff has had two relationships, one of which ended after a period in excess of a year, and a more recent and continuing relationship, but where the woman concerned lives interstate. I do not consider that this prospect should be ignored; it is one contingency which, among others, requires some allowance.

In my view, the risk of future deterioration is a significant one and must be given weight, but whether it will occur at 50 years or later (or even earlier, given the considerable exercise regime and determination of the plaintiff to engage in as much physical activity as possible) is very difficult to estimate. Having regard to the fact that the 10% reduction in life expectancy estimated by Mr Burke was his highest risk estimate and having regard to the fact that I would expect there to be deterioration, I consider that the appropriate approach is to calculate the future care needs and then reduce them for contingencies by only 5%.

The figure for weekly costs accepted by the defendants (and it seemed to not be disputed by the plaintiff’s counsel that that figure of weekly costs was appropriate, when allowance was made for some reductions which Ms French agreed were appropriate) was $838.54 and applying the agreed multiplier for a male aged 30.6 years to death, of 1289.7, the total for future care would be $1,081,456, which is reduced by 5%, to be $1,027,391.7. In addition there must be added the agreed sum of $1200 for occupational one-off expenses. The total then, to nearest dollar, is $1,028,591.

Aids and equipment

Once again, the plaintiff’s counsel made calculations based on a change in the situation at age 50. Thus, based on items allowed for by Ms French the plaintiff claimed weekly costs of aids and equipment of $150.95 until age 50 and $186.62 thereafter. Counsel for the defendants did not contest most of the items but did dispute that allowance should be made for certain items.

First, as to a mobile telephone, it was not disputed that the plaintiff will need one, but it was submitted that had he not been injured he would have used one anyway. That seems to me to be probably so. The defendants contended that the weekly allowance of $15.15 for the phone should be deducted, and also the costs of a handset of $65. I do not dismiss this, wholly, as an expense attributable to the accident, however. It seems to me that I should make some allowance for the fact that a mobile phone has now become a vital necessity, and that use of a mobile is likely to be greater, in comparison to the situation which would have pertained but for the accident.

The provision of a reclining lounge chair, in my view, is a reasonable claim, not an “ideal” claim in the circumstances. The items, “night splints” do not appear to be used at the moment and should not be allowed. I see no reason why allowance for a pushbike and gymnasium equipment should be regarded as cutting out before death. Likewise, I see no reason to disallow the claim for a sports wheelchair, which seem reasonable given that the plaintiff and friends do use a chair for exercise.

The appropriate way to address this claim is to make an allowance after first allowing under contingencies a reduction for the risk of reduced life expectancy. Applying the figure of $150.95 per week to the multiplier of 1289.7 being the appropriate 3% multiplier for a male of 30.6.years, the figure is $194,680, which I reduce by 5% to $184,946. I would further reduce that sum to allow for items which I have rejected, to $175,000.

Housing Requirements

The plaintiff claims $283,347 being the additional costs of independent accommodation caused by virtue of his physical condition. The defendants contend that the figure should be $208,135. There are three disputed items which make the difference.

The expert evidence called by the plaintiff’s witness, Ms Kirsty Bennett, was generally accepted by Mr Jeremy Long who was called for the defendants. Mr Long is himself confined to a wheelchair and might be thought to have particular insight into the areas of dispute, but I was not persuaded that his evidence was to be preferred on that account over that of Ms Bennett.

As to the first items of dispute, Mr Long said that too much space had been allowed for the plaintiff’s needs for a gym, store area, home office/study. Mr Long suggested that the 30 square metres could be reduced to 20. Mr Long also challenged the size of the laundry, and suggested it be reduced by 3 square metres. Ms Bennett said that she had applied Cordell’s Building Cost Guide, Victoria, and said that she was not overgenerous in this allowance of space, and having heard her detailed explanation I accept that what she allowed was reasonable. In particular, Mr Long agreed that he had adopted an approach of not requiring adherence to the standards for circulation space recommended by the relevant Australian Standards. He thought a lesser circulation space might be achieved, but I see no reason why the specialist standard should not be followed. Mr Long also agreed that he had not been told what gym equipment was being used, and agreed that he had not allowed for the amount of equipment which was likely to be housed in the gym.

Mr Long considered that when allowance was made for the cost of a conventional home, Ms Bennett had not allowed for the extent to which space would be provided by a conventional home. Ms Bennett had taken her figure of 119 square metres from Cordell’s Guide, whereas Mr Long said the conventional home was more like more like 149 square metres, including garage/carport. He based that conclusion on looking at advertisements in the newspaper. It seems to me to be reasonable to use an industry guide such as Cordells and to apply its standards, throughout, as was done here, unless it can be shown to be inaccurate on any item. In my view, the approach adopted was reasonable by Ms Bennett.

The final areas of difference related to individual items. As to a dishwasher and microwave neither were allowed for in Cordell’s standard home, and it was appropriate for Ms Bennett to claim those. I do agree with Mr Long that acoustic treatment goes beyond reasonable compensation when it was to be applied in areas where there was already carpet, but Ms Bennett adjusted that claim in her final report. I considered the claim for wall protection was reasonable, but for the reasons given in his report I accept Mr Long’s contention that the door protection is not required when sliding doors are being fitted (a reduction of $8400). I accept that a cheaper home security system could be fitted than that claimed and reduce the claim by $5000.

The claim for hydronic heating is predicated on the need to ensure that the plaintiff avoids respiratory complaints. It would provide a high quality of air. Mr Long assumed that this heating was to be installed in addition to air-conditioning, but Ms Bennett said that was not so. The higher quality air, she said, was an important factor when a person was going to spend an abnormal amount of time indoors, and that seems a reasonable claim. Mr Long said this was the “Rolls Royce” of heating, but notwithstanding that comment it seems to me to be not an excessive item having regard to the special needs of the plaintiff.

Mr Long said the claim based on a full brick house was unreasonable. Applying a different industry guide, Rawlinsons, he said that the cost for brick in comparison to brick veneer was an additional $45 per square metre, not $94 as claimed. Ms Bennett said she used the Cordells guide but in fact had reduced the figure to $67 in her final report, and Mr Long appeared to accept that as reasonable.

Finally, there were some external items, none of which seemed to me to be unreasonable.

In the result, I would reduce the claim for the housing needs by $13,500. The total, then, is $269,847.

In addition, the plaintiff claimed maintenance costs of $36.06 per week. Mr Stanley contended that if I disallowed the electrical items, above, then the proportion of cost of that should be reduced, but I have not disallowed those items. I accept that painting, as a maintenance item, is a normal household expense, but it is not one that the plaintiff would now be able to meet himself. Some reduction from the claim should be made, however. He suggested a 50% reduction, but given the calculations made by Ms Bennett in her report, and making allowance for the fact that the plaintiff can make no saving by doing his own painting, I think 40% is appropriate. I will allow 5% for contingencies.

For maintenance I will reduced the claim of $46,507 to $27,904, which I will then reduce by 5%, to $26,609.

Future Medical and Like Expenses

The first item claimed under this heading was for a cost of $150 per week with respect to the attendance of Royal District Nursing Service staff. Mr Stanley submitted that the role of these nurses was already taken into account in the Griffiths v Kerkemeyer claim, which relied on the information provided by Ms French who took the hours of these nurses into account in calculating the plaintiff’s future needs.

Upon re-reading, the evidence is not entirely clear as to this, but on balance I think Mr Stanley is correct. Certainly Ms French both in her report and evidence expressly referred to the duties of the nurses who attended for the important morning routine. Although that service is not being paid for at the moment it will be charged for hereafter if the plaintiff succeeds in his claim for damages. It is for the plaintiff to establish his loss[68] and I am not persuaded that this loss has not already been provided for elsewhere in his claim.
[68]See Watts v Rake (1960) 108 CLR 158, at 159, per Dixon C.J.

As to the balance of items for future treatment, first, the defendants argue that only six visits per annum to Dr Crick should be allowed, not eight as claimed. Dr Crick attends frequently on the plaintiff for catheter changes and for attendances for infections. He charges $50 for home visits. It seems to me that his attendance rate at the moment justifies a claim for eight visits per year, and I will allow that. That is $400 p.a. or $7.65 per week.

The defendants agreed to the claim of $25.60 per week for annual reviews at Austin Hospital, , pathology for urine and blood tests, urea and creatine blood tests, reviews at the spinal clinic and by a urologist.

The defendants agree to an allowance of $4 per week for medication.

The total allowed, then for recurring future medical expenses is $37.25 per week. The multiplier for life is 1289.7, giving a total of $48,041. I will reduce that by 5% for reduced life expectancy, to $45,639.

The defendants concede the plaintiff’s claim for $20,000 representing a one-off claim for the risk of future operative treatment and reviews other than those provided for.

Thus, the total claim for future medical and like expenses is $65,639.

Summary as to Damages

I summarize the damages which I have allowed as follows:

¨    Special damages $57,602

¨    Loss of earning capacity – Past 105,700

¨    Griffiths v Kerkemeyer Claim – past voluntary care           222,040

¨    Loss of earning capacity – Future 810,771

¨    Griffiths v Kerkemeyer – Future 1,028,591

¨    Aids and equipment 175,000

¨    Housing requirements

           (a)       Extra building costs 269,847

           (b)      Maintenance 26,609

¨    Future medical and like expenses 65,639

¨    General damages (Pain and Suffering, etc) 450,000

           Total $3,211,799

Subject to any submissions by counsel as to the appropriate orders to be made, having regard to my findings of fact, and as to an award of interest, which has been claimed, the plaintiff will be entitled to judgment as to 70% of this sum ($2,248,259) as against all defendants.

Save to the limited extent that I have earlier discussed - allocating responsibility for the plaintiff’s damage equally between the wrestling defendants, on the one hand, and the builder defendants, on the other hand - I have not sought to make any determination as between defendants with respect to any claims between them for contribution and indemnity, nor have I disposed of such third party claims as remain for resolution (I made an order at the commencement of the trial adjourning a third party claim involving CIC Insurance Ltd). If agreement is not reached on these matters, following publication of these findings and reasons, then I will give appropriate directions for the disposition of any of these proceedings which require determination.

I will hear counsel as to interest and costs and as to appropriate orders to be made.

---

¨ Special damages	$57,602
¨ Loss of earning capacity – Past	105,700
¨ Griffiths v Kerkemeyer Claim – past voluntary care	222,040
¨ Loss of earning capacity – Future	810,771
¨ Griffiths v Kerkemeyer – Future	1,028,591
¨ Aids and equipment	175,000
¨ Housing requirements
(a) Extra building costs	269,847
(b) Maintenance	26,609
¨ Future medical and like expenses	65,639
¨ General damages (Pain and Suffering, etc)	450,000
Total	$3,211,799

[2001] VSC 279

17 August 2001