Valeondis v Permanent Trustee Aust Ltd - [2008] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
VALEONDIS v PERMANENT TRUSTEE AUST LTD & ORS
[2008] SADC 143
Judgment of His Honour Judge Lovell
31 October 2008
TORTS - NEGLIGENCE - DANGEROUS PREMISES - INJURIES TO PERSONS ENTERING PREMISES - LIABILITY GENERALLY
Lift ceiling falling on courier driver – breach of standard of care.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
Assessment of damages where plaintiff reasonably but unsuccessfully attempts to mitigate loss.
Wrongs Act Part 1B, ss 17C & 17D, referred to.
Neindorf v Junkovic 222 ALR 631; Wall & Lambe v Wall Unreported, Full Court of SA, 23 December 1998, S7017, per Lander J; Graham v Baker (1961) 106 CLR 340; Medlin v SGIC (1994-1995) 182 CLR 1, considered.

VALEONDIS v PERMANENT TRUSTEE AUST LTD & ORS
[2008] SADC 143
Overview

Mr Valeondis was a courier driver. He had worked for TNT Couriers for many years. On 22 August 2000 he attended at AAP Communications Services Pty Ltd on Level 2, 45 Pirie Street, Adelaide to collect a parcel. Having collected the parcel he took it to the ground floor of the building by means of the goods lift. As the lift travelled between the second level and the ground level the ceiling in the lift collapsed striking Mr Valeondis and injuring him. Mr Valeondis sued in negligence the building owner, the building manager and the business that had recently reinstalled the lift ceiling. Both liability and quantum were in dispute at trial.
Plaintiff’s background
The plaintiff is currently 58 years of age. He reached year nine at high school and left aged 15 to work on his father’s orchard at Mypolonga. As a young man he was a hard worker not only operating the orchard but also working at night for Ingham Chickens. He married Afroditi on 16 June 1973 and they have two children. In 1978 he moved to Adelaide and in 1981 he began working as a courier. Initially this was with Kwikasair. Kwikasair was taken over by TNT and he continued with TNT on the same terms and conditions. He was working with TNT at the time of the accident as a courier driver.
Credibility of the plaintiff
It was generally accepted by the defendants that the plaintiff had suffered an injury in the lift on 22 August 2000. However there was much criticism of the evidence of the plaintiff in relation to his version of how the accident occurred and also the extent of his injuries. There was merit in some of the criticisms.
Mr Harms, who appeared as counsel for the plaintiff, conceded that, in relation to the question of liability, a lot of his client’s evidence was “reconstruction”. I agree. During the course of cross-examination Mr Frayne took Mr Valeondis through a number of applications that he had made, after the accident, for finance. His answers, at least in relation to some of the matters raised by Mr Frayne, were unsatisfactory. I will deal with this issue in more detail later in the judgment. Putting that issue to one side I generally found Mr Valeondis to be trying to answer the questions truthfully.
Whilst the cross-examination by Mr Frayne caused me some unease in relation to the credibility of Mr Valeondis overall I am satisfied that I can rely on his evidence other than on some specific matters with which I will deal later.
Credibility of the other witnesses
I find that all other witnesses in the case did their best to assist me and gave their evidence honestly. I include in that Mrs Valeondis. There was some criticism of Mrs Valeondis in that she and Mr Valeondis had clearly spoken about aspects of the evidence before she came to give her evidence. Specifically this related to the video showing Mr Valeondis undertaking various tasks. She candidly admitted to that proposition. I have considered that matter carefully. Whilst she was clearly aware of some of the topics that she would be questioned upon I do not feel that affected her honesty and reliability.
Liability
Background
The building at 45 Pirie Street is of high quality. It is 17 storeys high with a plant room above the tenancies and with basement car parking. Colliers International (SA) Pty Ltd (Colliers), the fourth defendant, was the managing agent for the building at the relevant time. The first, second and third defendants all allegedly owned the building at some time. It was unclear which of the first three defendants owned the building at the relevant time. Despite counsel’s best endeavours that issue was not resolved during the trial. I deal with that issue later. Mr Frayne appeared for the first four defendants. Liability for the acts of its agent Colliers was the only basis upon which any of the first three defendants could be held liable. Thus when discussing liability I will only refer to Colliers and the fifth defendant Kennedy’s.
There was a bank of six lifts to service the tenancies. One of the lifts was a designated goods lift. The goods lift had a different ceiling to the other five lifts. In the goods lift the ceiling could be removed to enable the transportation of tall or bulky items to the various levels. In the other five lifts the ceiling could not be totally removed.
Mr Harding was called by the plaintiff. He is a highly qualified engineer currently working with Bestec. His reports were tendered.[1] His background evidence was not disputed.
[1] Exh P90A & P90B
Mr Harding reported that a group of more than one lift car is commonly known as a bank of lifts. Generally within that bank of lifts one car may be designed in a slightly different configuration to the other cars to facilitate the vertical transportation of goods within the building. This was the case at 45 Pirie Street.
The Building Code of Australia stipulates the minimum height of ceilings allowable in various areas of the building. Although no minimum height is specified for lift cars they have generally been constructed in Australia with a minimum ceiling height of 2.1 metres.
From his experience the general approach in buildings in South Australia has been to dedicate one lift car in the bank as a passenger/goods lift. Whilst in the past it was not uncommon to locate a separate lift somewhere in the building it is now more common to provide one lift car with a shell constructed with an internal height capable of carrying the necessary building materials. Generally the interior of such a lift car is fitted out in a similar manner to the other passenger cars with the only difference being that the passenger/goods lift has a fully or partially removable ceiling to allow access to the higher ceiling of the lift car shell, for the transportation of building materials. These remarks are applicable to the bank of lifts at 45 Pirie Street.
Mr Harding stated that generally most lift cars in modern multistorey buildings incorporate a full ceiling of some description to conceal lighting, fan and the trapdoor that is required by the regulations. Very often full ceilings are intricate and can only be assembled or disassembled by a tradesperson or a lift contractor. Mr Harding stated that it was usually common practice for the building manager to control the removal of the full ceiling and the installation of the protective blankets in a passenger/goods lift within a building when goods, requiring removal of the ceiling within the lift car, are being transported in the building.
There was no dispute between the experts that the ceiling in the goods lift at the time of the incident was known as a “suspended T-bar assembly”. The ceiling was constructed by use of a primary bar, which ran the length of the lift and two secondary bars that ran at 90° to the primary bar to opposite sides of the lift. Around the wall of the lift car was a bearing surface. Whilst the evidence was not definitive I accept that attached to the bearing surface for the primary bar were clips over which the primary bar could be placed thus preventing lateral movement. No such clips existed for the secondary bars. The secondary bars intersected at the midway point of the primary bar and the flange of the main bar had a bearing surface of approximately 5 mm on which the secondary bars rested. Four square tiles could be fitted in the spaces left by the interlocking bars. If the bars and tiles were fitted correctly the ceiling was stable. The ceiling also had what is known as a “hanger”. This was a piece of metal connected to the main bar of the lift by a screw and the other end fixed to the primary bar. If the tiles were removed the hanger would, provided it remained fixed into the alcove of the lift, assist in holding the spacer bars up or at least the primary spacer bar.
The lift was designed so that pushing a rear tile out of place enabled access to a space referred to as the “boot”. If only one tile was removed and provided the ceiling was fitted correctly the ceiling remained stable. The use of the boot assisted the transportation of awkward articles.
In the other five lifts the ceilings were similar but not identical to the goods lift. The ceilings were not capable of being removed and replaced easily. The expert evidence in the case demonstrated that the type of ceiling used in the goods lift was of a design common to many goods lifts in South Australia.
Kennedy Consolidated Pty Ltd (Kennedy’s), the fifth defendant, had a contract with Colliers to maintain and inspect the building at 45 Pirie Street. This included a monthly building inspection and then, if required, attending to maintenance jobs requiring attention. It was not disputed that on 17 August 2000 Mr Adamson, an employee of Kennedy’s, had attended at 45 Pirie Street to reinstate the lift ceiling “assembly” in the goods lift. Part of the job involved supplying and installing a new piece of the ceiling grid. I will deal with Mr Adamson’s evidence in more detail later in this judgment.
Incident on 22 August 2000
Plaintiff’s version
On 22 August 2000 Mr Valeondis attended 45 Pirie Street to pick up a parcel from AAP Communications who had an office on the second level. They were a regular customer of Mr Valeondis. He took a trolley with him. To get to the second level Mr Valeondis used the goods lift. When he got into the lift he noticed that two of the ceiling tiles had been removed from their proper position and were sitting on top of the other two tiles within the grid system. It was the back two tiles that had been removed. He thought that the corners of each of the removed tiles were jutting out from the tiles they were sitting on so that they were in effect “diagonally” on top of the others. He had never seen tiles sitting like that before. He had previously seen the lift when the ceiling had been totally removed.
Mr Valeondis said that he went to pick up the package that was between 2½ to 3 m long and about 20cm x 20cm in diameter. He identified exhibit P3 that was a consignment note for this transaction. Prior to picking up the package he believed that he had dropped off a small package at AAP. Mr Valeondis said that he went back to the lift bank and when the goods lift arrived he put the package into the lift and pressed the button to send the lift to the ground floor. At that stage a parcel that he had picked up was at an angle of about 45°. As the lift took off it shuddered slightly and all of the panels came down. He could recall something hitting him although he did not realise what had happened until the doors opened on the ground floor and he found himself lying on the floor. He said that he “came to” when the lift was on the ground floor. There was blood running down his face and he could see people in the foyer although they looked, to him anyway, small. I infer that he believes he received a knock to the head, which in some way affected his perception. Photographs taken a few days after this event confirm an injury to his face.[2] As he stood up he noticed all the panels and a bar section had fallen; he had to kick them away to get out of the lift. He said that the panels and the centre bar had fallen down. Mr Valeondis stated that he was not sure how many panels fell but when he looked up “there was nothing up there”[3]. He took his trolley and parcel and started to walk out of the lift and went toward his truck that was parked in front of the Telstra building located across the road. He called work on the two-way radio and informed them of what had happened and that he needed assistance. It was around that time that he noticed that his shoulder was starting to hurt. He informed work of the incident and arrangements were made for someone else to take over his round.
[2] Exh P4
[3] Transcript p 289
Mr Valeondis sought first aid from a person he knew who worked nearby. And then returned to his truck. His truck was unloaded and he was advised to go and see a doctor. He told me that he thought he went and saw his doctor, Dr Morris, that afternoon. A few days later he went to see a solicitor, Mr Gask, and he also went back to the building and took some photographs of the tiles and T-bar construction that he located towards the back of the building.[4] He noted that the time that he attended the building and located the ceiling pieces the goods lift had no ceiling in it. I note from those photographs that there appears to be damage to some of the pieces consistent with the ceiling or at least part of it falling.
[4] Exh P5
The photographs of the “pieces” of the ceiling in a damaged state along with the photographs of the injury to the face of Mr Valeondis corroborate in general terms the fact that the ceiling fell on Mr Valeondis.
What package or packages did the plaintiff pick up from AAP?
The plaintiff’s version
During the course of cross-examination Mr Birchall for the fifth defendant, produced a box containing an aerial that generally matched the description of the item mentioned in the consignment note exhibit P3. This box was eventually tendered.[5] Mr Valeondis did not accept that the box produced was the type that he had picked up on the day of the accident. He stated that he had picked up an item, that he believed to be an aerial, in a cylindrical box. The item produced and tendered by Mr Birchall was rectangular in shape. The cylindrical box described by Mr Valeondis could fit into the lift without accessing the “boot”. The container tendered by Mr Birchall could not.
[5] Exh 5D2
The dimensions of the parcel picked up as recorded in the consignment note were consistent with the box produced by Mr Birchall rather than that described by Mr Valeondis. Mr Valeondis then explained that in addition to picking up the cylindrical carton he may have picked up a smaller box as well. This he asserted could account for the dimensions recorded in exhibit P3 i.e. the two parcels combined could account for the dimensions recorded.
A further consignment note was produced later by Mr Valeondis.[6] It transpired that sometime after the incident he had returned to AAP and had obtained a copy of exhibit P3. At his request a person at AAP had, in biro, entered a further item on this copy of the consignment note. On this copy it appears, without further explanation, that two packages had been picked up. Given that it was created after the event and at the direction of Mr Valeondis it was of very little evidential value.
[6] Exh P3A
This exhibit, apart from establishing that Mr Valeondis had not recently invented the suggestion of two packages, added little to the case.
The relevance of the size of the package that Mr Valeondis carried into the lift is that, if the package was of the dimensions as suggested by the fifth defendant, it could not have fitted into the goods lift as described by Mr Valeondis. Indeed for Mr Valeondis to have transported a package of the dimensions described in exhibit P3 he would have had to remove at least one tile from the goods lift ceiling to enable at least part of the package to be placed in the “boot” of the lift.
Other evidence relating to the dimensions of the package
The fifth defendant called Mr James Burgess on this point. In the year 2000 he was employed as a field technician by AAP Communications (AAP) at 45 Pirie Street, Adelaide. One of the contracts he worked on was a GSM contract involving Vodafone Network. That involved the maintenance, installation and repair of all Vodafone GSM sites within South Australia and the Northern Territory. This included aerials as well as other equipment. He was able to identify an AAP Communications Services Pty Ltd goods movement form for 22 August 2000. The document was entirely in his handwriting.[7] By refreshing his memory from the document he was able to say it related to the type of aerial that was normally transported in a box the size of exhibit 5D2. Mr Burgess was able to identify the aerial (antenna) contained within exhibit 5D2 as being an aerial similar as to what was described in the document.
[7] Exh 5D9
Mr Burgess said that around 22 August 2000 there was a fault on a site at Findon. It was a shared site with Telstra. He remembered this day as when on site he had got into trouble with the site manager for not wearing his hard hat when up in the “cherry picker”.
He was on site with a fellow employee Mr Craig Sherwin. As a result of the fault having been identified a new aerial had to be organised. A new aerial was delivered to the AAP office at 45 Pirie Street in a box with the same dimensions as exhibit 5D2. Whilst he did not have a specific memory he said he would have taken the box down to his four-wheel drive, tied it to the roof and taken it out to the site. He had previously carried items such as exhibit 5D2 alone. He thought he might have had assistance on this occasion. Having completed his work at the Findon site, which included replacing the aerial, he brought the old aerial back to 45 Pirie Street. The old aerial was packed up in the same box in which the new aerial arrived and that box was taken back to Pirie Street. He thought it unlikely that he would have used the stairs as the parcel was an awkward shape and therefore he used the lift. Mr Burgess said that he probably used the goods lift as they did that 90% of the time when transporting equipment. He estimated that he used the goods lift on a daily basis for transporting equipment whilst he was at AAP.
Basically the ceiling tiles were pushed up so he could access the extra space in the boot.
Mr Burgess was shown exhibit P3A the consignment note. He was able to identify his signature as the consignor. He confirmed that he was shipping one item to Mr John Nicholson a store manager in Sydney. He identified the handwriting at the top of exhibit P3A under the word “consignee” as his. He confirmed that the description of the item was in his handwriting as was the handwriting in relation to the sender’s reference, the number of items and the weight in kilograms.
The handwriting, which is in blue biro on the original exhibit, was not his. Looking at exhibit P3 he was able to confirm that this document was the “head office” copy of the same document as exhibit P3A and once again he was able to identify his signature. He was able to identify the address of the consignee as being in his handwriting, the description of the items and the sender’s reference number. On exhibit P3 there was writing in relation to the dimensions of the item to be taken that was not in his handwriting. He stated that the TNT consignment note has a number of copies. He thought there were five that were “carbon copies”. He explained that it was not his practice to fill in the length and width and height of the object; he would just put in a rough figure of the weight.

Mr Burgess confirmed that they did transport items of various sizes and shapes including a 2½ to 3 metre long cylindrical type item (as described by Mr Valeondis).
He agreed that when transporting items of equipment, such as an aerial, they would push the tiles in the lift up with the aerial and the tile would sit on top of the box in some way.
He did not know Mr John Armstrong (Colliers). Whilst he was aware that Colliers were the managing agents for the building he could not recall whether it was necessary to go to the building manager to get permission to remove the ceiling for the purpose of transporting goods. He certainly didn’t do it.
Mr Burgess recalled that he got back from the site approximately mid-afternoon which would have been around 3.00pm. The job had taken six to eight hours. Generally speaking Mr Burgess did not accept that there may have been another item to be sent under the same consignment note exhibit P3.[8] He agreed that it may have been possible that he organised the shipping of the faulty part back to Sydney the following day.
[8] Transcript p 1377
I accept the evidence of Mr Burgess. He was a good witness. His evidence establishes that there was only one item to be collected by Mr Valeondis and that the container was of the same dimensions as exhibit 5D2.
I do not accept the explanation given by Mr Valeondis. His evidence was clearly, on this topic, a reconstruction of events. I accept that he believes that he picked up a cylindrical item but he must be wrong about that. The direct evidence of the consignment note exhibit P3 taken with the evidence of Mr Burgess demonstrates that Mr Valeondis picked up only one parcel of the dimensions described in exhibit P3.
Findings
I find that when Mr Valeondis entered the lift going up to the second level to pick up the package from AAP the ceiling of the goods lift was in the condition that he described in his evidence in chief. The “boot” area was therefore already exposed. I find that he picked up one package of the dimensions described in exhibit P3. When he entered the lift to go back to the ground floor he had to position the package such that at least a portion of the package projected through the space left by the missing tile into the “boot” area of the goods lift. I find that Mr Valeondis did not deliberately shift any of the tiles in the ceiling of the goods lift.
The evidence of Mr Gask
The plaintiff consulted Mr Gask, a partner of the legal firm of Tindall Gask Bentley, on 28 August 2000 in relation to this accident. Mr Gask sent a letter dated 29 August 2000 to the Building Manager Mercantile Mutual Building of 45 Pirie Street, Adelaide.[9] The plaintiff was cross-examined about statements contained in the letter relevant to how the accident occurred. The plaintiff did not distinctly admit the statements. I initially refused the tender of the letter allegedly proving a prior inconsistent statement of the plaintiff as it was not a document prepared or adopted by him at any time. Accordingly Mr Gask was called.
[9] Exh 1D1
I accept the evidence of Mr Gask. He was a good witness. He agreed that he sent the letter of 29 August 2000 to the Building Manager and that it was likely to have been dictated on 28 August 2000.
In relation to the statement in the letter “two panels of the ceiling together with some framework, collapsed” Mr Gask confirmed that they were his instructions. He also confirmed that his instructions were that there were “panels on top of those panels”[10]. That is consistent with the plaintiff’s evidence rather than inconsistent.
[10] Transcript p 1245
It was also put to Mr Valeondis that he had told Mr Gask that he (Mr Valeondis) “placed the equipment in the lift and through a removed panel in the ceiling”. Mr Gask said that such a statement was not in his original handwritten notes and therefore he could not confirm that Mr Valeondis had made that statement.[11] The subsequent typewritten notes of Mr Gask record “Peri remembers entering the lift, putting the end of the parcel up the hole”. Whilst the letter states “through a removed panel in the ceiling” the notes of Mr Gask do not record those words.
[11] Transcript p 1249
I infer that it is likely that Mr Gask was informed by Mr Valeondis in general terms what is contained in exhibit 1D1. However the evidence does not establish an obvious inconsistency. Indeed in part it establishes a consistency in relation to one part. There is a potential inconsistency in relation to Mr Valeondis’ evidence about how he handled the item once he entered the lift.
I have already rejected Mr Valeondis’ evidence about the size of the item he collected from AAP. I accept that there may be some inconsistency. Whatever inconsistency there may be in that part of his evidence does not assist me in determining the issues in the case. Taking the matter at its highest for the defendants it does not alter my findings in relation to the credibility of Mr Valeondis.
The state of the ceiling leading up to 22 August 2000
Not surprisingly the evidence regarding the condition of the goods lift ceiling, leading up to the incident, came largely from the defendants.
The fifth defendant called Mr Craig Adamson who worked for Kennedy’s at the time of the incident. He still works for Kennedy’s but has a different role.
Mr Adamson confirmed that Kennedy’s had a maintenance agreement with Colliers whereby they would inspect the building.[12] The inspection included the bank of lifts. He confirmed that his contact at the time was John Armstrong of Colliers. Following the inspection he would contact Mr Armstrong and there would be a discussion about matters that may need attention.
[12] See also Exh 1D41
Leading up to 22 August 2000 there had been two service calls by Kennedy’s to attend to the ceiling of the goods lift.
Mr Adamson was not able to specifically remember the two calls. He relied on documents to assist his memory.
He said that his practice was to generally ring prior to attending the site and would either meet Mr Armstrong (Colliers) on site or somewhere else if that had been previously arranged. Whilst he had a key to the building he did not have a goods lift key. The goods lift key enabled Mr Adamson to lock the goods lift and therefore isolate it from the bank of lifts whilst he worked on it. To obtain a goods lift key he would have to sign for it when reporting to Colliers reception which for a while at least was on the third floor of the building.
Before he was instructed to proceed with any work by Colliers he had to get the instruction from Colliers. He would create a job sheet and that would include getting an “order number” from Colliers. Documents tendered[13] related to a number of work order and invoices numbers for various periods. As it transpired not all of these documents were particularly relevant.
[13] Exh 5D7
Having signed for the key he would take the lift back to the ground, go to the ground floor, call the lift, lock it off and put a sign outside saying that the lift was locked. He would also, depending on what they had to bring into the building, put curtains up to protect the inside of the lift.
To remove the ceiling in the lift he would remove the tiles first and then the spacer bars. He would then unhook the hanger and take out the main bar. The ceiling would be placed somewhere out the back of the building until they had finished with it. Mr Adamson said the first tile to be removed was reasonably tightly held in place but once it loosened the rest were easy to take out.
Mr Adamson, having looked at the photographs tendered, stated that he thought there was a “tag and bracket” which gave some support to the spacer bars. I accept that evidence in regard to the primary bar.
What work was performed by Kennedy’s prior to the accident?
By reference to exhibit 5D7 page 31 (Kennedy’s job card) Mr Adamson was able to confirm work done in relation to the relevant lift. Kennedy’s were instructed to supply and install a black anodised “T” bar grid to the roof of the lift. They were also instructed to “install client’s stainless tiles to new grid”. He received this job card from Mr Kennedy with that writing on it. The document notes that on 31 July he picked up the T-bar for the job. He also purchased one can of primer paint and a can of black satin paint. The job card establishes that on 2 August he performed the job. He was unable to remember the job but by refreshing his memory from the job card he could say that he took the aluminium bars, measured the interior of the lift on site and cut the bars somewhere on the site. He thought he did the spraying of the bars with paint in the car park. It was installed on 2 August 2000. He did not know why the work was required. There was no suggestion that on this occasion he had not reinstalled the ceiling correctly.
Mr Adamson was able to confirm that as part of the monthly inspection it was subsequently noted that the ceiling was missing in the goods lift and that the T-bar was bent with a piece missing. This was reported to Mr Armstrong on 10 August 2000. They were instructed to rectify it.[14] John Armstrong was the contact person and they were instructed to refit the ceiling to the goods lift. Mr Adamson was able to identify Mr Kennedy’s handwriting on the job card that noted that on 17 August 2000 there was a service call “to supply and install mil finished aluminium pre‑painted black satin finish” and to also “cut/install to reinstate lift ceiling suspended grid”. Mr Adamson was unable to remember performing this job and had to rely on the job card to refresh his memory. Mr Adamson was able to confirm from exhibit 5D6 that on 17 August he obtained the key for the purpose of locking off the lift to do the work. When he installed the ceiling all tiles would have been in their correct position. He confirmed that when he reinstalled the ceiling on 17 August he would have attached the “hanger”. He confirmed that if the hanger was correctly attached the main bar of the assembly could not fall to the ground unless the hanger malfunctioned in some way. He confirmed that he did not hear any complaint from Mr Armstrong about the manner in which he had completed the work.
[14] Exh 5D7 p 51
Mr Adamson was shown the photographs exhibit P5. He was able to say that he would have been unable to install those tiles in a grid ceiling in the condition seen in the photographs as they were bent and damaged.
Mr Adamson said that after he had finished his job on 17 August he would have contacted Mr Armstrong either by telephone or seeing him personally to let him know the work was completed.
Mr Adamson gave evidence about having seen and reported to Mr Armstrong persons using the goods lift in circumstances where the ceiling should have been removed or the lift locked off. However he was unable to specify any particular incident. His evidence on that topic was so vague that I ignore it.
Mr Adamson confirmed that at the time in August 2000 there was a lot of fit out work going on.[15] He was unable to say whether in July or August 2000 it was any different to any other time.
[15] Transcript p 1318
Findings
Mr Adamson was an impressive witness. I accept his evidence. I find that he attended and worked on the goods lift as established by the documents. In particular I find that he attended on 17 August 2000 as instructed by the fourth defendant. On that day he supplied and installed at least part of the T-bar structured to the goods lift. He then reinstated the ceiling as instructed. I find that he performed his job competently and that he reinstated the ceiling by placing the main T-bar over its clips and attaching the secondary bars correctly. I find he attached the “hanger”. He then installed the ceiling tiles appropriately. When he finished the job the ceiling was correctly reinstated and stable. He reported finishing the job to Mr Armstrong. There was no complaint about the standard of his work.
At the time Mr Valeondis entered the lift on 22 August 2000 the state of the ceiling was substantially different as to how it had been installed by Mr Adamson.
The role of Colliers
Relationship with the building owners
It was submitted on behalf of the building owners that Colliers were independent contractors and as such the owners were not liable for the acts of Colliers. The plaintiff submitted that the principal-agent relationship was established.
The question to be answered is whether an agency–principal relationship has been established rather than simply whether Colliers were “independent contractors”.
The contract between Colliers and the owners[16] demonstrates that Colliers were the agent of the owners, not an independent contractor. Clause 2.1 and the preamble to Schedule 2 of the agreement demonstrate that the intention was to create a principal and agent relationship. The obligations of Colliers indicate the work to be performed on behalf of the owners. The contract when looked at in total demonstrates the control exercised by the owners.
[16] Exh 1D32
The acts of Colliers and in particular Mr Armstrong, in relation to the way he dealt with the lifts, were acts within the scope of the agency.
Evidence on behalf of Colliers
The first to fourth defendants called Mr Robert Buckland. He is currently employed by the Land Management Corporation and has been so since 2002. Prior to that he had held a position with Colliers International SA Pty Ltd. He was the divisional manager of the commercial property management division. He spent approximately 15 years with Colliers.
In relation to the building at 45 Pirie Street he had actually been the building manager for that property during 1999. He became the divisional manager in April of 2000. He knew Mr Armstrong who was the building manager at the time of the accident. Mr Frayne, on behalf of the first four defendants, tendered a statement of Mr John Armstrong without objection from any other party. Mr Armstrong signed and dated his statement on 17 December 2003.[17] Unfortunately since that time he died. I will deal with his statement later in this judgment. More general evidence was, understandably, given by Mr Buckland.
[17] Exh 1D31
Mr Buckland confirmed that earlier in the year 2000 Colliers had an office at 45 Pirie Street but they eventually moved that to 99 Gawler Place. Mr Armstrong also moved across but he had a car park at 45 Pirie Street so he maintained a connection with the building by parking there. He described the building as a 17 storey building with plant rooms above the tenancies and with basement car parking. He believed that in about August of 2000 it was fully tenanted. He identified the management agreement[18] between Permanent Trustee Australia Ltd and Colliers Jardine as the managing agent. This agreement was dated 1 February 1998. There was a fee paid to Colliers for the operations manager.
[18] Exh 1D32
Mr Buckland confirmed that Mr Armstrong had duties other than looking after 45 Pirie Street. Mr Armstrong’s duties were to undertake the operational management of the building in relation to maintenance, engaging contractors, making sure the building operated correctly and that it was kept clean and presented well for the client. One of the common areas of the building was the bank of lifts that serviced the building. As part of his duties Mr Armstrong was responsible for the common areas including the lifts. He reported back to Mr Buckland about the lifts.
Mr Buckland gave evidence about the procedure in place where tenants were carrying out building work. Generally speaking a tenant would seek permission to undertake alterations and they would then be issued with a set of guidelines that Colliers provided on behalf of the owner. They were provided with a fit out manual for alterations and the alterations were to be done in accordance with the manual. The manual was tendered.[19]
[19] Exh 1D33
Mr Buckland stated that Mr Armstrong’s role as the building manager was to liaise with tenants and contractors in relation to the use of the goods lift in accordance with the instruction requirements within the manual.
Pursuant to the general conditions of approval for building works under the section, referring to worksite conditions, the process was that if the ceiling was to be removed and reinstalled in the goods lift it was to be done by “Otis Elevators or by consultation with the building Services Manager and the Project Manger concerned.” Such a process would be followed for all major works within the building such as tenancy fit outs but it may have included other works as well. The lift itself was maintained pursuant to an agreement with Otis Elevator Company.[20]
[20] Exh 1D35
Part of Mr Buckland’s duties were also to report to the owner of the building on a monthly basis. The general nature of the information was to provide the client with a summary of the activity in the building for the month. It would include details such as leasings, occupancy, financial statements and also operational activities. Some of the information for this document came from Mr Armstrong. Two of these reports were tendered.[21] The reports included information regarding any insurance claims for the month, visits to the property and also a maintenance report. In the document for August 2000[22] is a reference to the incident involving Mr Valeondis. This was likely to have been a response to the letter received from Mr Gask.
[21] Exh 1D36 & 1D37
[22] Exh 1D37
Mr Buckland also confirmed that Mr Armstrong would carry out formal inspections of the premises at 45 Pirie Street from time to time. He would write a report as to his findings on the inspections.[23] The inspection included the lifts. Certain items were particularised, namely panel lights, phones, state of repair and cleanliness. The inspection date just prior to the incident with Mr Valeondis was 16 August 2000.[24]
[23] Exh 1D38
[24] Exh 1D38
In addition a contractor was retained to do monthly reports. This was Kennedy Consolidated Pty Ltd and they also provided a report in writing. Relevant reports from Kennedy Consolidated Pty Ltd were tendered.[25] Mr Armstrong had the authority to authorise work to be done by Kennedy’s as he was the building operations manager.
[25] Exh 1D40 & 1D41
Mr Buckland also identified copies of what was known as the “Order Book”. The Order Book was maintained by various people at Colliers. In particular it appears to have been maintained by property management secretaries. No objection was taken to its tender.[26]
[26] Exh 1D42A & 1D42B
Mr Buckland also confirmed that in the middle of July 2000 there was a change of location by Colliers from 45 Pirie Street to Gawler Place. He was involved in the arrangement whereby Colliers vacated the floor partly to make room for another tenant. That was the Attorney General’s Department and there was building work required when that occurred. The fit out was required on levels 3, 5 and 6. Those dealings were with John Armstrong.
Mr Buckland stated that Mr Armstrong had authority to authorise works not exceeding $500. He said that Mr Armstrong’s duties were primarily in relation to ensuring that the building was cleaned and maintained appropriately. As such he would liaise with the cleaning contractor, the air conditioning contractor, maintenance contractor, etc. It was Mr Armstrong’s obligation to ensure that, whoever was instructed, the work be carried out ensuring no undue inconvenience to the tenants and that their work was carried out in a proper manner.
Mr Buckland confirmed that a “key register” was kept for 45 Pirie Street. Its purpose was to record the name and the company of a person who obtained the key to the goods lift. The key would enable the goods lift to be locked and therefore at the disposal of the person with the key. In other words a goods lift key would be released to enable the lift to be used for fit out purposes or the delivery of goods so that it could be locked and isolated.[27]
[27] Exh 5D6
Mr Buckland was unable to explain the fact that there appeared to be no record of anyone having been paid or organised to replace the ceiling after the incident on 20 August 2000. In relation to the replacement of the T-bar, he was not aware of any reason why the T-bar needed to be replaced as indicated by the invoices sent by Kennedy’s. He was not aware of the reason why it was necessary to perform a similar job a few weeks later. This aspect remains unexplained by Colliers.
Evidence of Mr Armstrong

As mentioned Mr Armstrong is now deceased. A statement made and signed by him of 17 December 2003 was tendered.
I have taken into account Mr Armstrong's statement. I bear in mind that it was not subject to cross-examination. I further take into account that his statement was made at a time when the claim was still some years away from being tried in court. No doubt issues have become more refined since the signing of the statement.
No party suggested I should not accept the statement as containing the truth of what was contained within it.
Mr Armstrong stated that he had been involved in the management of commercial buildings in Adelaide for over 18 years. He had been employed by Colliers International since 1990. He stated that the first he knew of the reported incident with the plaintiff was when Colliers received a court document in approximately August 2003.
With regard to how the lifts were managed during the relevant time he said as follows:
During 2000 and at other times, there were tradesmen constantly going in and out of the building carrying out refurbishment work.
On all occasions when tradesmen were given access to the building they were provided with a ‘General Conditions of Approval of Building Works’ document prepared by Colliers, which sets out the worksite conditions.
One of those conditions deals with the use and operation of the lifts.
Colliers kept a written log of all building contractors that were provided with keys to access the building. This information may be contained in our archived records.
I cannot recall being asked to attend the goods lift or for that matter, any lift within the building at 45 Pirie Street on or shortly after 22 August 2000 to attend to or arrange repairs to the ceiling panels.
However, it has been my experience over the years that the ceiling panels within lift cars are always subject to abuse by various users of the lifts.
Furthermore, we ask all building contractors using lifts in any building under our management/control, to exercise due care when using the goods lifts and in doing so they are allowed to remove and reinstate the ceiling panels in order to facilitate the transport of larger objects such as sheets of gyprock etc. (My underlining).
During any refurbishment work the walls of the goods lift are protected by soft covers.
A further review of Colliers’ archived records may reveal which builder/s may have been given access to the building on or about 22 August 2000.
This appears to be the evidence relating to the system that Colliers had in place for dealing with people using the goods lift.
Further Mr Armstrong went on to say:
At the time, Prestige Property Services were the cleaning contractors and they too had an obligation to report any faults such as damage to lift cars to us. However, most of the cleaning work was performed during the evenings and as such, they may have no knowledge of this incident. In the goods lift, which in this particular building is lift number six, there are four removable stainless steel (polished) ceiling panels each measuring 60cm x 60cm that were supported by a lightweight metal frame/crossbar. The ceiling panels and the metal framework that supported them were easily removed from the ceiling space opening which measured approximately 1.2m x 1.2m. The ceiling panels in the remaining five lift cars were similar but slightly different to the ceiling panels in the goods lift. The other lift cars had four similar sized ceiling panels plus an additional four smaller infill panels which resulted in the overall area of the ceiling space that could be demounted being larger than the goods lift.
By their very nature, the ceiling panels within the goods lift have to be able to be removed and reinstalled easily for the provision of the transport of larger objects.
As such, it is not possible to secure the ceiling panels in place.
Otis Elevators should be able to provide further information on the design of the lift cars and their ceiling panels.
In my role as Building Operations Manager I would inspect each commercial premises under my control on a quarterly basis.
Colliers’ records will show that I carried out an inspection of 45 Pirie Street on 16 August 2000 and then again on 27 December 2000.
On both occasions I raised no concerns about the conditions of the lifts.
There are two important parts of the statement. The first is (as I have underlined) that building contractors were allowed to remove and reinstate the good lifts ceiling panels at their discretion in order to facilitate transporting larger objects. Such a direction is not in accordance with the “General Conditions of Approval for Building Works”.[28] The second was that in the experience of Mr Armstrong ceiling panels within lift cars were subject to abuse by various users of the lift.
[28] Exh 1D33
There is no reference in the statement to the fact that Kennedy’s had twice in the month leading up to the accident been requested by him to perform repair work to the ceiling in the goods lift.
There is no doubt a disadvantage to the fourth defendant in Mr Armstrong’s statement not being explained by him. I have borne in mind that disadvantage. The two matters I have just mentioned appear as unequivocal statements by Mr Armstrong and in my view there is no reason why I should not accept the truth of those statements.
Was the procedure adopted by Mr Armstrong appropriate?
Evidence in the case demonstrates that the approach of Mr Armstrong in allowing building contractors to take out and reinstate the ceiling panels on their own initiative was neither in accordance with industry practice nor the policy of Colliers. Further the evidence demonstrated that with “fit out” work being performed over a period of months it was preferable to remove the ceiling entirely for that period.
Mr Buckland said that Mr Armstrong did not have the authority to give builders permission to remove the ceilings themselves. Normal practice was that he would engage another contractor or the lift contractor themselves to remove the ceiling grid.[29] He conceded that he was not aware of the fact that it was Mr Armstrong’s practice to allow contractors to remove and reinstate the ceiling or the ceiling panels as they required.
[29] Transcript p 1206
Mr Royston Humphreys was called by Colliers as an expert witness. He is a licensed real estate agent and has a graduate diploma in commercial property management. He previously practiced in the area as a property manager with a number of different employers managing different types of real estate. He had actually been employed by Colliers from 1986 to 1999 and therefore was not employed by Colliers at the time of this particular incident. His report was tendered.[30]
[30] Exh 1D43
There was no dispute about the expertise of Mr Humphreys. In relation to his report he dealt with three specific areas:
a)    Were the inspections of the property sufficient in frequency and detail?
b)    What procedures did Colliers have in place to control the removal and reinstatement of the ceiling tiles and/or T-bar? Were these procedures adequate?
c)    Was the use of removable ceiling panels in lifts in commercial properties in accordance with common commercial practice.
Mr Humphreys’ conclusion in relation to the question of the procedures of Colliers controlling the removal and reinstatement of the ceiling was dependant to a large extent on the “General Conditions of Approval for Building Works”.[31] He was of the opinion that the document “is consistent with general property management practice”.[32]
[31] Exh 1D33
[32] Exh 1D43 at 4.6
Under cross-examination Mr Humphreys agreed the tiles should remain either in place or be fully removed because to remove one or more of the tiles would create some instability. He agreed that removing and reinstating the ceiling is something that should be restricted to a few people only and the building owner or manager should be controlling which contractors actually work on the ceiling grid.
He agreed that the practice of a building manager telling builders (contractors) that they could remove one or more of the panels for the purpose of transporting goods as being an unsound practice.[33] When giving his opinion he had assumed that Kennedy’s had originally removed the ceiling in each case. If that were not the position and it had been removed by someone else he would have expected to have seen some record made by the property manager giving permission to that person to remove it. No such record was produced. He stated that it was not acceptable practice to give a contractor who happens to be working in the building permission to remove the ceiling.
[33] Transcript p 1225
Mr Humphreys confirmed that at the time of the incident he was instructed that various parts of the building were being refurbished. He accepted that organising the removal of the ceiling was something that Colliers should retain control of themselves.
Mr Humphreys confirmed that exhibit 1D33 would be given to the tenants and generally to a contractor if major building works were about to occur within the building. He confirmed the evidence of Mr Buckland that the document should be given to the tenant and it was generally their responsibility to give it to the contractor. However if there were major works to be undertaken Mr Humphreys stated that he would have expected the property manager to give it to the contractor as well to ensure that all parties were aware of the procedures to be followed. He confirmed that exhibit 1D33 should be given to all tenants when they first tenant a building such as 45 Pirie Street.
Mr Humphreys also confirmed that if people were interfering with the ceiling and that was an ongoing problem that would give him cause to be concerned as a property manager and he would have to address the issue. He agreed that if it was an ongoing problem then a redesign of the ceiling in the lift may be warranted.
By looking at exhibits 1D36 and 1D37 Mr Humphreys observed that there was reference in those materials to the decommissioning of Colliers and the “fit out” for the offices of the Attorney General. He would have expected that, given the decommissioning in July and August of level 3, the goods lift ceiling would have been removed. He would have expected that there would have been a significant movement of rubbish or items in and out over that particular period. Not surprisingly he observed that, with an increase in contractors, there would be an increased chance of someone interfering with the ceiling. For major works of that nature he would have expected the ceiling to have been taken out for the period of the works or at least the last period of the works.
In my opinion by allowing contractors to “remove and reinstate the ceiling panels in order to facilitate the transport of larger objects such as sheets of gyprock” at their discretion meant that the potential for tiles and indeed the entire ceiling to be interfered with by persons not having a proper understanding of the ceiling structure was increased significantly. It was a matter that Colliers needed to control.
I accept the evidence of both Mr Buckland and Mr Humphreys. To give contractors the right to interfere with the integrity of the ceiling was an unsound practice. The reinstatement of the ceiling in their view should be performed by Otis or at the very least by an experienced contractor (such as Kennedy’s) rather than leave it to the discretion of contractors. To some extent their evidence is supported by the opinions of the two experts (referred to below).
Other expert evidence
Both the plaintiff and the fifth defendant called expert evidence relating primarily to the question of the design of the ceiling lift. As it transpired their evidence was also relevant to other issues in the case.
The design of the lift
Evidence of Mr Harry Harding
I have already dealt, in part, with the evidence of Mr Harding.
Mr Harding inspected suspended ceiling components at the office of Minter Ellison Lawyers on 10 May 2007. These items were eventually tendered before me.[34]
[34] Ex 1D20, 1D21 & 1D22
Having inspected those items and also having had access to a report of Mr Ian Dodd dated 8 March 2006 he noted that the stainless steel ceiling panel could only provide a bearing depth of two to three millimetres. His inspection of the existing passenger lifts confirmed the comments made by Mr Dodd. The existing passenger lifts have suspended ceiling arrangements that were rigid and allowed minimal movement of the suspended ceiling stainless steel panels.
In his opinion, from inspecting the stainless steel ceiling panels from the goods lift, the lift ceiling was not designed for removal of individual ceiling panels (tiles) but for total removal and reinstatement only. He was of the opinion that if the goods lift ceiling was designed and constructed with the intent of facilitating the removal of panels to allow transportation of building materials, the design was flawed as there was insufficient bearing depth (two to three millimetres) on the horizontal lead strip of the stainless steel ceiling panels to allow panels to be lifted and slid forward.
Overall Mr Harding said that the T-bar constructions of the type produced were in common use between the 1960’s and even into 2000. He thought there would be many buildings still in Adelaide with a similar type of construction.
Under cross-examination by Mr Birchall Mr Harding agreed that there would be no reason to suspect that the ceiling or any part thereof would have been inadequate. He thought that it was only when someone interfered with it by damaging it or moving part of it that there would be a potential for a member of the public to be injured. If it was installed correctly, namely that the T-bars were tight, then it should have been safe. When locked into place it is a secure system. As Mr Harding put it the construction design was adequate if the ceiling was either totally in or totally out.
Mr Harding was of the opinion that whilst he thought the design was to some extent inadequate, provided the ceiling was either fitted correctly or totally out, it was safe. The obvious inference from Mr Harding’s evidence is that if two of the ceiling panels (tiles) had been taken out and slid over the top of two other panels the whole structure may become unsafe.
I pause here to note that I have not taken into account those parts of Mr Harding’s report[35] of 1 June 2007 that were objected to, appropriately in my opinion, by Mr Frayne for the first four defendants.
Evidence of Mr Dodd
[35] Exh P90B
Kennedy’s called Mr Ian Dodd, a building surveyor. He holds the degree of Bachelor of Engineering from the University of Adelaide with Honours. He is currently a partner of Katnich Dodd Engineers who are engineering and building surveyors.
Three reports of Mr Dodd were tendered.[36]
[36] Exh 5D10A, 5D10B & 5D10C
Mr Dodd had inspected the goods lift at 45 Pirie Street and found that a new ceiling had been installed. He also inspected the parts of the previous lift ceiling that were eventually tendered in court. He made various measurements of the parts.
There were two important aspects to Mr Dodd’s evidence. First, he had performed an experiment regarding a package, exhibit 5D2, whereby he tried to fit that into the lift. He determined that the parcel could not be fitted into the lift unless the parcel was pushed into the zone above the location of the original ceiling. Attachment G to exhibit 5D10B shows the results of that particular experiment. The plaintiff took no issue with regards to that particular experiment and the results. I accept that evidence.
Secondly, Mr Dodd described the lift ceiling as having a primary bar and two secondary bars. The primary bar, for the purpose of the argument, ran from the front to the rear of the lift. The system was such that if clips were present the primary bar could be clipped into place. The two secondary bars were then put in place but not necessarily clipped. He drew a diagram that was tendered.[37] From the photographs of the lift he thought it likely that there was a clip in place at least for the primary bar.
[37] Exh 5D10D
Mr Dodd’s opinion was that the ceiling would have been stable and secure unless the bars and/or the tiles were displaced. Mr Dodd noted that the tolerances on the assembly were quite small and it would have been quite difficult to put the tiles back into their proper position once they were removed. He was of the view that if the two tiles of the rear were removed as suggested by the plaintiff, the secondary bars would become unstable but the primary T-bar would still be stable and the remaining two front tiles would also be stable as they had three bearing edges out of the four. He noted that in relation to the secondary bars there was no evidence of any fixing clips when he viewed the lift. For the primary bar to come down it would have required, had it been properly placed over the clips, force from underneath. If a force was applied from underneath it may cause the primary bar to be dislodged from its clips. For the primary bar, secondary bars and tiles to have all fallen as described by the plaintiff, either the ceiling had not been installed properly when last put back in place or alternatively the plaintiff had knocked the primary bar from its clip whilst manoeuvring the parcel into the lift. He also noted that the “hanger” was either not fixed or not fixed properly if the primary bar was to have fallen all the way down to the floor. He was of the view that if the primary bar was correctly in place, even if the two back tiles had been removed and placed over the front tiles, the lift juddering would not have caused the fall of the ceiling.
There was some difference of opinion between Mr Dodd and Mr Harding. It can largely be accounted for by Mr Dodd being aware of the clips being in position for the primary bar. Where there is a difference I prefer the evidence of Mr Dodd.
I do not consider the design of the lift to be inadequate as suggested by Mr Harding. Unfortunately the likelihood of there being clips for the primary bar was not brought to his attention.
The goods lift ceiling has now been replaced with a simpler design.
There is little doubt that the ceiling that is currently in place is safer than what was present in August 2000. However in my view that does not mean that the design of the ceiling in place at the time of the accident was inadequate. I accept the evidence of Mr Dodd. I reject the allegation that the design of the lift was in some way inadequate.
Findings
As mentioned I accept the evidence of Mr Valeondis when he said that everything in the ceiling had fallen down. When he looked there was nothing left of the ceiling. The expert evidence establishes that if the ceiling had been fitted properly, even if two of the tiles were not correctly in place, not all of the components of the ceiling should fall. The primary bar, unless hit from underneath with sufficient force, would be held by the clips. Even if hit with a force sufficient to lift it from the clips it would be still held by the “hanger”. I have already found that Mr Adamson had installed the ceiling correctly on 17 August when he had attended to fix and reinstate the ceiling. I find that Mr Valeondis, when manoeuvring the package into the lift, did not hit the primary bar with sufficient force to dislodge it from the clips.
I find that the ceiling had been replaced or interfered with by an unknown person prior to 22 August 2000. I find that it was most likely to have been a contractor. I find that it had been removed and then replaced but not properly. The hanger had not been fixed and the primary bar was not over the clips or at least not properly over the clips. It had been left in a precarious state.[38] It is likely that the front two tiles were not correctly in place particularly as the primary bar had not been placed over the clips. When two tiles had been removed the whole structure became unstable. As a result, both the primary and secondary bars had no support other than the bearing edge of the lift. The primary bar was not stable and the ceiling collapsed as described by Mr Valeondis. It was in such a precarious state that the minor vertical shudder, as mentioned by Mr Valeondis, was sufficient to cause all of the ceiling to come down.
[38] Transcript p 1404

The fourth defendant had the responsibility for the lifts and that included ensuring that they operated in a safe manner. It was a commercial building. The first four defendants all knew that tenants and visitors to the tenancies would be using the lifts including the goods lift. Indeed all of the first four defendants I infer would have been well aware that delivery and pick up of goods from the various tenancies would occur on a regular basis. Colliers were aware that a major fit out was being undertaken at the time and that therefore there was a need to transport items of varying heights requiring the ceiling tiles and/or frame to be moved.
Colliers were the agent for the building owners. They had the responsibility of “managing, operating, promoting, maintaining and administering the property”. Their obligations in that regard are set out in the Management Agreement. As building manager it had the responsibility to provide and enforce a safe system for the use of the bank of lifts including the goods lift. They exercised some control in relation to the goods lift by having in place a system whereby a contractor wanting sole use of the goods lift had to obtain a key and sign a register. There was in place a system of regular inspections of the bank of lifts (and many other areas of the building) and subsequent reports to the building owners. That they had in place a system of control of the goods lift ceiling is evidenced by the General Conditions of Approval for Building Works.[39] It was a condition of approval of building works within a tenancy that the “ceiling in the Goods lift may only be removed and reinstalled by Otis Elevators or by consultation with the building Services Manager and the Project Manger concerned”. I accept the evidence of Mr Humphreys that the system of control that Colliers had in place was reasonable.
[39] Exh 1D33
I find that in accordance with his statement that Mr Armstrong did not follow the system that was in place. He simply asked all building contractors using lifts “to exercise due care when using the goods lifts and in doing so they are allowed to remove and reinstate the ceiling panels in order to facilitate the transport of larger objects such as sheets of gyprock etc”. There was no evidence that suggested that having given such permission any attempt was made to ensure that the ceiling was replaced by a competent person and that it had been done properly. I appreciate that Mr Armstrong could not be called but the evidence of Mr Buckland establishes that he was not aware of the procedure adopted by Mr Armstrong. He said that Mr Armstrong did not have the authority to give the builders permission to remove the ceilings themselves.
I find that Mr Armstrong did not follow the system that Colliers had in place. There was in place a system of inspection including the lift area. This occurred on a monthly basis. If Kennedy’s or a similarly qualified firm had been used to take out or reinstate the ceiling tiles or ceiling such an inspection regime was appropriate. When there was no substantial building work (fit out) being undertaken such a system was adequate. When Mr Armstrong allowed contractors to interfere with the ceiling a monthly inspection of the lift was not sufficient.
I accept the evidence of Mr Dodd that, if the ceiling was installed correctly, the removal of the back two tiles in order to assist the placing of larger items in the space provided would not make the system unstable. That would account for the evidence of Mr Burgess who said that he often moved a tile. The system, if properly installed, allowed for a tile to be removed. It may or may not be difficult to replace but the ceiling would not be unstable.
I accept the evidence of Mr Humphreys that if major works were being undertaken in the building the ceiling in the goods lift should have been taken out for the period of the works. Other expert evidence supported that proposition.
I find that in August 2000 there were major works being undertaken in the building. Colliers themselves were moving out and the Attorney General’s Department was taking over the available space.[40] This involved the decommissioning of the Colliers office in July and August 2000. It was during this period of time that Kennedy’s were required to repair and install the ceiling as previously discussed. The fact that the ceiling required some repair is consistent with the lift being used as part of major works. I infer that the ceiling was interfered with by a person working in the building. I infer that the person who took out the ceiling and then replaced it, or interfered with it in a substantial way, had permission from Mr Armstrong to do so. That is the likely position given that “fit out” work was being undertaken at the relevant time. The state of the ceiling when Mr Valeondis first entered the lift is consistent with the entire ceiling having been taken out and not put back properly. If a tenant such as AAP or a stranger had interfered with the ceiling it is unlikely that they would have taken out the entire ceiling.
[40] This is consistent with Exh 1D36 & 1D37
I find there was no system or no adequate system in place for Colliers to check that the replacement of the ceiling by such a person as a contractor was performed in a competent manner. Mr Armstrong simply relied on the contractors to perform the job competently.
I also find that given the “fit out” was occurring Mr Armstrong should have instructed Kennedy’s or Otis to remove the ceiling in any event for the period of the work. I am fortified in that view by the fact that two service calls made by Kennedy’s shortly prior to the accident ought to have put Mr Armstrong on notice that the ceiling of the goods lift was, at the very least, being abused. The fact that it appears that part of the frame needed replacing indicates that whoever was dealing with the ceiling was not doing so appropriately.
Law
Preliminary issues
There was uncertainty at the trial as to who actually owned the building as at 22 August 2000. It was not disputed that it was one of the first three defendants.
It was submitted by Mr Frayne that the issue could not be resolved between the first three defendants; if I was to find liability (not conceded) against the owner of the building, I should enter judgment against all three defendants and that issue would be resolved at a later time. In other words I was not to differentiate between the first three defendants.
Whilst that is an unusual course to adopt I will adopt the practical suggestion of Mr Frayne. For the sake of brevity I will refer to the first thee defendants as the “first defendant”.
Was the first defendant an occupier?
It was common ground that Part 1B of the Wrongs Act (the Act)[41] was applicable to the case.[42]
[41] Subsequently renamed as the Civil Liability Act
[42] Neindorf v Junkovic (2006) 222 ALR 631
Mr Frayne for the fourth defendant conceded that his client was an occupier for the purpose of the Act. In relation to the first defendant Mr Frayne argued that whilst his client was a landlord it was a landlord not in occupation of the building including the common areas. Thus he argued its liability was restricted to the matters raised in s 17D of the Act.
The building was substantially if not wholly tenanted. However it is clear that the common areas including the lift areas were not leased to any particular tenant. They remained at all times under the control of the first defendant and indeed the fourth defendant. All tenants had access to the lifts[43] pursuant to the tenancy but had only a right of use. In my opinion the first defendant was an “occupier” of the premises in relation to the bank of lifts. Section 17D has no application in relation to the first defendant (first three defendants) and the determination of potential liability of the first four defendants is subject to s 17C of the Act.
[43] For example Exh 1D33
Section 17C of the Wrongs Act
It was not suggested that the first four defendants did not owe the plaintiff a duty of care. Section 17C(2) sets out the factors ((a)-(h)) that I am required to take into account in determining the applicable standard of care. Account must be taken of each factor. Section 17C(3) makes it plain that there are cases in which doing nothing to eliminate, reduce or warn against a danger is consistent with exercising reasonable care. I bear in mind that demonstrating that the first four defendants “were aware or ought to have been aware”, of both the “danger” and the “entry of persons onto the premises” does not require the conclusion that they should have taken some step to eliminate, reduce or warn against that danger. Rather it is necessary to take account of all of the matters specified in s 17C(2), including “the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger”.[44]
[44] Neindorf v Junkovic (supra)
Conclusions
I have considered all of the factors pursuant to s 17C(2). The ceiling as I have found was not replaced properly. It was taken out or interfered with in some way by persons involved in contract work in the building. It was left in a precarious state and it was undoubtedly dangerous. Colliers were aware of the use of the lift by people such as the plaintiff. Indeed the goods lift was not locked off and could have been used by any tenant or member of the public visiting a tenant.
Mr Armstrong breached the system Colliers had in place that ensured as far as possible that the ceiling was always replaced securely. The risk posed by the ceiling not being replaced properly was obvious. Indeed that was no doubt the reason the system was in place. In my view Colliers, through their employee, Mr Armstrong were negligent in failing to follow their own system and allowing contractors to remove and replace the ceiling without any supervision. It involved little expense and time for Kennedy’s to be contacted to remove the ceiling if required by a contractor. In my opinion such a measure was both reasonable and practicable.
In my view Colliers breached the standard of care and were negligent in any event in not having the ceiling removed for the entirety of the “fit out” work being undertaken at the relevant time. Such a measure was an obvious response to the risk posed and a cheap practical alternative. The failure to remove the ceiling clearly increased the risk that contractors may not remove and replace the ceiling in an appropriate manner. Given the fact that Kennedy’s were called to attend to repair or replace part of the ceiling should have made it obvious to Mr Armstrong that the entire ceiling should be removed for the period of the building works.
In my view the claim of Mr Valeondis succeeds on both or either grounds as against the fourth defendant.
Liability of the first three defendants
I have already found that Colliers were the agent for the building owner and that the acts or omissions of Mr Armstrong were acts or omissions done within the course of his agency.
The owner is liable as principal for the act of its agent Colliers. I will hear argument as how such a judgement should be recorded given the uncertainty as to which of the first three defendants was the legal owner at the time of the accident.
Liability of the fifth defendant
It was accepted that Kennedy’s owed the users of the lift a duty of care. It was submitted that Kennedy’s had performed their work competently and therefore were not in breach of the appropriate standard of care. I have found that Kennedy’s did, through Mr Adamson, perform the task of reinstalling the lift ceiling appropriately. There was no complaint about there work from Colliers.
Negligence is not made out as against the fifth defendant. I dismiss the claim against them.
Contributory Negligence
The defendants argued that I should find that the plaintiff was guilty of contributory negligence. Two bases were suggested.
First that having travelled up in the lift to collect the parcel from AAP he became aware of the “dangerous” condition of the ceiling. He should have either used the stairs on the way down or contacted someone to attend to the ceiling.
I reject that argument. Whilst it is true that the plaintiff did notice the condition of the ceiling as he travelled in it to collect the parcel there was no reason for him to necessarily think that the entire ceiling would collapse. Indeed on his way up to AAP nothing happened. It was only after he put his parcel into the lift and commenced his downward journey that anything occurred.
Secondly it was suggested that in some way Mr Valeondis knocked the ceiling when manoeuvring his parcel into the lift given that it would not fit other than being placed, partially at least, into the boot. The defendant bears the onus of proof in relation to the question of contributory negligence. The plaintiff denied in any way bumping or knocking the ceiling. However I have not accepted his evidence as to the size of the parcel he picked up from AAP. I have found that he did have to manoeuvre his parcel when getting it into the lift. It is possible that he bumped or in someway knocked the ceiling when manoeuvring his parcel. However whatever he did it did not cause the ceiling to fall immediately. I have already found that the ceiling was left in a precarious state. It is possible that it was made even more precarious by the action of Mr Valeondis. It may be that he, for example, banged the wall of the lift hard such that it moved the bars slightly. The evidence does not allow me to say one way or the other. On the evidence I am unable to find proved on the balance of probabilities that Mr Valeondis in any way contributed to the collapse of the ceiling or failed to take care for his own safety.
I dismiss the claim for contributory negligence.
Damages
The plaintiff was born on 21 February 1950. He married on 16 June 1973 and has two children. He has always been a hard worker. In 1981 he began working for Kwikasair doing deliveries of parcels. He worked as a subcontractor. They were taken over by TNT in approximately 1995 and he continued to work with TNT on the same terms and conditions. He was working with TNT at the time of the accident. Mr Valeondis worked at a flat hourly rate but in addition received overtime which was time and half or double time plus a meal allowance. He also received benefits such as sick leave and holiday pay. The contract between TNT and the contract carriers was tendered.[45] Mr Valeondis told me that he enjoyed his work as he liked been outdoors and enjoyed meeting people.
[45] Exh P2
Immediately after the incident his shoulder was painful and he could not lift it above shoulder height. He went to see Dr Morris and then Dr Waters. Dr Waters injected his shoulder with cortisone; this provided some relief. However after a few weeks the effects of the injection wore off and the pain came back. It was at that stage that Dr Waters suggested that he may need an operation.
Mr Valeondis told me that prior to the incident he had never had any problems with his shoulder. He felt unable to resume duties with TNT because he was unable to lift his arm freely. He underwent surgery on his shoulder on 4 January 2001.
On returning home he took Panadeine for pain relief. He needed assistance bathing, shaving and dressing himself. He said that his wife helped him for approximately the first six weeks. After the operation he was unable to do his gardening and that was something he missed as he enjoyed doing it. After about six weeks he began to get more movement in his right arm and his wife had to do less for him. He also underwent physiotherapy and hydrotherapy.
A few months after the operation his arm again began to hurt and he went back to see Dr Waters. Dr Waters injected him with cortisone again and once again he obtained temporary relief before the effects wore off. Dr Waters advised him that there was going to be some pain and that it would slowly go away. Dr Waters recommended that he not go back to work as a courier driver.
He did not return to work as a courier driver and instead decided to follow a career in property investment. This was an area in which he had an interest prior to August 2000.
In the meantime he has continued to have ongoing pain in the shoulder and this has affected his ability to enjoy life and undertake hobbies and household tasks that he was able to do before August 2000. The evidence of Mrs Valeondis, which I accept, confirms the difficulty her husband had at various stages of recovery.
Medical Evidence
After the accident Mr Valeondis consulted his general practitioner, Dr Morris. Three reports of Dr Morris were tendered.[46] Mr Valeondis has been a patient of Dr Morris since 1981. Dr Morris reported that whilst the plaintiff had a history of injuries to his low back, right knee, right wrist, right groin, left ankle and right foot he had never complained of an injury to his shoulder prior to August 2000.
[46] Exh P91A, P91B & P91C
Dr Morris initially saw Mr Valeondis in relation to this injury on 23 August 2000. Mr Valeondis had reported that on the previous day he was in a lift when “a panel had fallen down from the top of the lift, it struck his left side of his face and he claimed that he jarred his right shoulder while he was ducking away from the panel that was falling down”. Dr Morris accepted that in part at least his notes were his interpretation of what he had been told. He accepted that the plaintiff had no doubt given him a longer explanation that he condensed for the purpose of his notes. Examination on that day revealed pain around the shoulder joint on forced abduction. He could not internally rotate the shoulder. Mr Valeondis was eventually referred to Dr Waters by Dr Morris.
Prior to giving evidence Dr Morris had been given an opportunity to view a DVD (sometimes referred to as the video) tendered by the defendants.[47] The DVD showed Mr Valeondis performing various tasks. The defendants focussed on what, they alleged, the DVD showed Mr Valeondis doing at the Glendi Festival. It was suggested that the DVD demonstrated that Mr Valeondis exaggerated the nature and extent of his incapacity and consequent restrictions. Whilst Dr Morris was a little surprised by the range of movements shown on some occasions he thought that the activities performed by Mr Valeondis on the video were still consistent with his presentation. He observed on the DVD that the plaintiff was favouring the right shoulder in most of his activities during this time. He also noted that the activities were not done repetitively and generally not above shoulder height. On an occasion when he did elevate his arm above shoulder height he was not lifting anything.
[47] Exh 1D11
Generally speaking Dr Morris did not change his view that the plaintiff suffered a significant injury. He thought he had a reasonably good result from the operation performed by Dr Waters. He remained of the opinion that he was unable to work as a courier driver on a permanent basis as that would require a repetitive heavy lifting and work above head height.
Dr Morris was cross-examined on the treatment that he had given Mr Valeondis for a low back problem in March 2000. He diagnosed the plaintiff’s low back pain as a “lumber facet joint strain”. A certificate was given from 19 to 15 February 2000 for Mr Valeondis to be away from work. He received physiotherapy and was prescribed an antiinflammatory. Mr Valeondis consulted him on a few occasions concerning that but by March 2000 it appeared that the problem had resolved. Dr Morris thought that given the plaintiff’s occupation it was not an unusual problem and that he would have expected a full recovery. There was nothing in the medical evidence that suggested that Mr Valeondis had previously had any significant problems at work; nor was there anything to suggest he could not have worked as a courier to age 65.
The plaintiff consulted Dr Darren Waters an orthopaedic surgeon on the referral from Dr Morris. Dr Waters wrote a number of reports to the plaintiff’s solicitors at Tindall Gask Bentley indicating that he had ongoing tendonitis of his shoulder and was unfit for work as a courier driver. These were tendered and formed the evidence-in-chief of Dr Waters.[48]
[48] Exh P92

The initial consultation occurred on 8 September 2000. Mr Valeondis presented complaining of pain in the lateral aspect of his neck and right shoulder that was radicular in nature. Dr Waters referred him for an MRI scan that was performed on 9 September. The diagnosis at that stage was a “calcific supraspinatus tendonitis”. It was recommended that he undergo ultrasound guided needling of the calcium deposit and this was performed on 25 September 2000.
Dr Waters reviewed him on 10 October 2000 and Mr Valeondis reported an overall reduction in his pain following the needling technique. However he was still experiencing discomfort with attempted overhead use of the arm. Dr Waters considered the possibility of repair of his rotator cuff tendon.
Unfortunately for the plaintiff he did not improve and on 4 January 2001 Dr Waters performed a right shoulder arthroscopy and repair of a one centimetre tear in the supraspinatus tendon. There was no suggestion that the “tear” observed by Dr Waters was not consistent with having been caused by the accident as described by Mr Valeondis. I find that the accident caused the “tear” in the supraspinatus tendon.
Dr Waters at that stage certified him unfit for work for a period of six weeks and then certified him fit to return to work on modified duties. He thought that the duties ought to be sedentary.
In his report of 9 January 2002 Dr Waters felt that the plaintiff should change occupation to avoid work that involved strenuous overhead lifting and reaching. He thought he was fit to perform sedentary work. At that stage he believed that he had lost 30% of the full efficient use of his right shoulder as a result of his rotator cuff tendon tear. He also thought at that stage that there was a possibility that the tendon tear would become more severe over the next 10 years and that there was a 50% probability that he would require further surgical intervention.
In his report of 15 August 2006 Dr Waters reported that the plaintiff still had discomfort with elevation and abduction of his arm. At that stage Dr Waters still considered that he would not be able to return to his work as a courier driver. An MRI arthrogram of the shoulder had failed to show any evidence of a re-tear of the rotator cuff tendon. Dr Waters was of the view that it was possible that he would require further surgery but not probable that the surgery would be needed within 10 years.
Dr Waters’ view was that “calcifications” such as seen with the plaintiff were frequently present within a supraspinatus tendon. He stated that calcification can occur acutely but it is also frequently there in a chronic condition. He thought that the calcification really had little to do with the tear that he observed at operation.
Prior to giving evidence Dr Waters had viewed the DVD of Mr Valeondis. In his report of 6 August 2007 Dr Waters maintained his view that Mr Valeondis is not fit to return to his pre-injury courier driving work. During the course of cross‑examination he did not agree that the DVD showed that Mr Valeondis exhibited a full range of movement in his right shoulder. His opinion was that the plaintiff had a reduced capacity to work with his right arm elevated for any extended period of time. Dr Waters explained that when the rotator cuff is repaired a person can work and perform functions that are relatively low to the ground. The difficulty is taking the shoulder away from the side of your body. It is shifting, pushing and loading where the problems arise.
Simply put Dr Waters’ view was that the footage shown on the DVD of Mr Valeondis performing the various matters noted earlier did not change his view of the restriction to his work capacity.
Associate Professor Robert Bauze gave evidence on behalf of the first, second, third and fourth defendants. He is an orthopaedic surgeon of many years experience. His was the only other medical evidence in the case. His reports were tendered.[49]
[49] Exh 1D34
Associate Professor Bauze first saw Mr Valeondis on 15 March 2004. At his initial consultation he had available to him a report by Dr Waters and various radiological investigations. Having taken a history from Mr Valeondis and then examined him he thought that his current symptoms were directly related to the incident involving the lift on 22 August 2000. At that stage he was of the opinion that the plaintiff suffered permanent residual disability of about 30% loss of function of his right shoulder. At that time he thought the plaintiff was capable of performing work where it did not involve straining of his right shoulder or working with his right arm more than 30° away from his body. He thought he was not capable of returning to his previous work as a courier driver. He noted in his report of 22 March 2004 that the prognosis was for there to be little change.
Associate Professor Bauze examined the plaintiff again on 15 August 2006. On that date he wrote a report to the solicitors for the first to fourth defendants, Minter Ellison.[50] In essence in that report he did not change his earlier opinion.
[50] Exh 1D34
Associate Professor Bauze’s opinion changed markedly after he viewed the “highlights” of the DVD/video surveillance undertaken of Mr Valeonids. Of particular relevance to Associate Professor Bauze was the activity demonstrated at the Glendi Festival some 14 months after his surgery. His opinion is set out in his report of 3 November 2007.[51] In the course of commenting on the video Associate Professor Bauze also commented on the report of Dr Waters of 6 August 2007 which contained Dr Waters’ opinion after having seen the video.
[51] Exh 1D34
Overall Associate Professor Bauze came to the view that the plaintiff was fabricating his presentation. He thought that Dr Waters had achieved an excellent result with the operation and had restored the range of Mr Valeondis’s right shoulder movement to at least 170° flexion. He thought that the activities demonstrated in the video of March 2002 indicated that Mr Valeondis was fit at that time to do courier work albeit with a restriction as to heavy work.
During the course of cross-examination it became apparent that Associate Professor Bauze had assumed that the plaintiff had performed various activities for at least one hour continuously. However that is not the inference that is to be drawn from that tape. Indeed the entire tape is only 32 minutes long. The DVD/video shows the activities that Mr Valeondis performed during the day of the Glendi Festival. It was not suggested by the defendants that he performed the type of activities seen on the DVD repetitively or for any extended period of time. He also assumed that the boxes that Mr Valeondis is seen to be handling were full. I accept the evidence of Mr Valeondis that the cartons were not necessarily full.
In fairness to Associate Professor Bauze, when confronted with the different assumptions, he stated that he relied not so much on the weight and the repetitive nature of the activity but rather on the greater range of movement that Mr Valeondis had demonstrated. He accepted that his view of the plaintiff was coloured by his understanding of what was contained in the DVD.
Findings in relation to the medical evidence
Having had the opportunity to view the videotape and listen to the evidence of Dr Morris, Dr Waters and Associate Professor Bauze I prefer the evidence of Dr Waters and Dr Morris. In my view the videotape supported the opinions of Dr Waters and Dr Morris rather than that of Associate Professor Bauze. I am not prepared to accept Associate Professor Bauze’s opinion that the plaintiff was deliberately fabricating his evidence or that he was fit for courier work.
I find that the incident caused an injury to Mr Valeonids’s right shoulder namely a one centimetre tear in the supraspinatus tendon. This was successfully repaired by Dr Waters but he has been left with a permanent disability and restriction as described by Dr Waters. I find that Mr Valeondis was unable to go back to work as a courier driver and remains unfit to perform that work. This restriction on his work capacity is permanent. I find that that the plaintiff has a reduced capacity to work with his right arm elevated for any extended period of time. He is precluded from working in any job that requires working repetitively with the arm extended above shoulder height. He is not restricted in performing functions that are relatively low to the ground.
Assessment of Damages
Pain and suffering
Mr Valeondis initially complained of pain in the shoulder. It was continuous until the time of the operation apart from some relief for a short period of time after the cortisone injections. He described it as being “very very painful I couldn’t move it much. It was getting worse day by day affecting my sleep. Affecting my everyday necessities you have to do.”[52] He said that he wasn’t able to lift his arm and couldn’t move it very freely.
[52] Transcript p 61
He spent five days in hospital after the operation that was undertaken on 4 January 2001. At the time of his discharge the shoulder was very painful and his arm was strapped in a sling. The only thing he took for pain was the drug “Panadeine”. Immediately upon his discharge from hospital he had difficulty in looking after himself and required assistance from his wife in bathing, shaving and getting dressed. He underwent physiotherapy and after approximately six weeks he started to get some movement in his right hand and was able to shave and cut up his own food. He needed assistance washing his hair and on occasions getting dressed. He went to the physiotherapist nearly every day for two or three months. This evidence was in general terms supported by his wife.
Initially his shoulder improved but by the end of April 2001 it started to hurt more and he went back to see Dr Waters. Dr Waters gave him another cortisone injection which helped for about two weeks. However the pain came back. Dr Waters told him the pain would eventually recede. To some extent this had occurred.
Since that time Mr Valeondis told me that he has just attempted to make the best of it and get on with life.
In relation to his pre accident activities he told me that he used to do vacuuming and the mopping as well as hanging clothes on the line. Since the accident he can do some of those activities albeit at a slower pace. He and his wife owned and still own a holiday home at Wallaroo and most weekends they would go to Wallaroo. As a result he tended to do the housework on a Thursday night so that they did not have to do anything on the weekend. He was involved in the gardening and enjoyed looking after the large yard he has at home with fruit trees, vegetables and lawn. He used to do all the outdoor tasks. Again his wife confirmed this evidence.
The house at Wallaroo required maintenance and gardening as well. He grew vegetables at Wallaroo and has a large lawn around the house.
His injury restricts his ability to perform the outside tasks both at his home and his house at Wallaroo.
In relation to the holiday home his brother-in-law now mows the lawn for him or on occasions his wife does it. His brother-in-law does it for nothing because he stays at the property. His wife mainly tends to the vegetable garden although Mr Valeondis can do small bits and pieces that do not require stretching or lifting. Mr Valeondis has not done any form of renovation work at the Wallaroo property since the accident. He had done extensive renovation work to the property before the accident. He said he would have renovated the kitchen himself and painted the whole property had the accident not occurred. His fishing is now restricted as he can’t cast his fishing line. He does do some fishing off the jetty.
In relation to his home he now pays Jim’s Mowing to do the lawn mowing. This costs $13.00 per month. He told me that he is unable to mow the lawn because of the vibration of the mower into his hands and arms and that causes him pain. As with his house at Wallaroo he is unable to do much of the painting particularly the painting that is above eye level. It is likely that he would have painted the house by now. The inside of his house was painted in 2003 by his brother-in-law.
Mr Valeondis told me that he is still involved with the Lions Club and Adelaide Helenic. He participates in the Glendi Festival although he is now restricted in relation to that activity.
His injury has impacted on his relationship with his wife. They don’t undertake Greek dancing as much as they used to and their sexual relationship has deteriorated. I will deal with the plaintiff’s loss of earning capacity later but it is clear that the injury has had a significant impact on the amount of available money for the family to enjoy. Mrs Valeondis has had to return to work. The plan was that Mrs Valeondis was to retire in 2001 and that Mr Valeondis was going to continue in his job until aged 65. However because of the financial difficulties Mrs Valeondis has had to continue working.
The plaintiff suffered a significant injury to his right shoulder. He has undergone surgical repair and it is possible although not probable that he may require further surgery. The injury continues to be painful and he has a permanent restriction in shoulder movement. His ability to enjoy his pre accident social and domestic activities has been affected as indeed has his relationship with his wife. These difficulties will continue into the future.
In all the circumstances I award $40,000 by way of pain and suffering. I allocate $25,000 to past pain and suffering and $15,000 for the future.
Past loss of earning capacity
Background
Mr Valeondis gave only very general evidence relating to his earnings pre accident as a courier driver. All relevant taxation returns and financial statements were tendered. They showed that Mr Valeondis had previously worked for a salary and on occasions in partnership with his wife. Whatever the arrangement for taxation purposes he was always the person who performed the courier work. He and his wife had, pre accident, some property investments. After the accident and when it became apparent that he would be unable to return to his work as a courier driver he made a decision to try work as a property developer. I will say more about that later in the judgment. Taxation returns and various financial statements of entities in which Mr Valeondis had an interest were tendered. Mr Valeondis was cross-examined extensively about those matters.
The plaintiff called no expert evidence to explain his financial position both prior to the accident and subsequently. That is unfortunate given the complexity of the taxation position. Many cases of this type do not require expert accounting evidence. This was not one of those.
I understand that there may be good reason why that was not done in this case. However the evidence has been generally left in an unfortunate state. Mr Valeonids himself gave scant evidence about his financial position prior to the accident for the few years immediately after the accident. In terms of what property investments and developments he became involved in after the accident he gave extensive evidence. He was unable to assist in any meaningful way how many of his investments were treated for accounting purposes. I do not draw any adverse interest against Mr Valeondis in that respect. However I have been asked to draw various conclusions about his pre and post accident loss of earning capacity on largely unexplained (by him) taxation records. That is of course permissible but in the context of this case a somewhat difficult procedure.
Due to the lack of specificity in many areas of the evidence I have had to wield the “broad judicial axe” often.
Pre accident earnings
Mr Valeondis had been a courier driver for many years. At the time of the accident he was a contract driver. A copy of a contract was tendered.[53] The contract was updated each year and ran for a period of 12 months. He had to provide a truck for which he received an allowance. At the time of the accident he was paid by means of an electronic transfer of funds. A slip indicating his payment in the week of the accident was tendered.[54] This indicates that in the week of the accident Mr Valeondis worked 51 hours. His pay was 38 hours at ordinary time ($13.41 per hour), 10 hours at time and a half ($20.12 per hour) and 3.07 hours at double time ($26.83 per hour). As he was a contractor no tax was deducted. He received an allowance for his truck.
[53] Exh P2
[54] Exh P7
Mr Valeondis gave evidence that he worked about 50 hours a week; this is corroborated by his pay slip.
It appears from his tax return that at the time of the accident he operated the courier business as a partnership with his wife. That had not always been the case as demonstrated by his tax returns. It matters little in this case as there clearly was only one person operating the business. The partnership financial statements tendered[55] indicate that the net profit from the business was $27,461 for the year ended June 2000. That appears to be consistent with the earlier years. Mr Valeondis had other forms of income relating to his property investments. The figure of $27,461 is generally consistent with his personal tax return (pre tax). There was no clear explanation as to how his allowance for the truck was treated and I therefore ignore it for the purpose of my calculations.
[55] Exh P25
I am satisfied that I can rely on a combination of the exhibits and his evidence to use as a starting point the hourly rates mentioned above and his net profit from the business (before tax).
Post accident loss of earning capacity
After the accident Mr Valeondis was unable to continue with his work as a courier driver. He initially took his sick leave entitlement. He was paid sick leave from 29 August 2000 to 6 November 2000. This amounted to 425 hours at $13.42 per hour.[56] That is approximately 10 weeks of sick leave. It does not appear that his sick leave made allowance for overtime payments.
[56] Exh P89
He also had the benefit of an Accident and Sickness Policy with Mercantile Mutual Insurance (Australia) Limited. A copy of the policy was not tendered. Mr Valeondis gave very general evidence about receiving payment under the policy. A deed executed by both Mr Valeondis and the insurer was tendered.[57] Payments made under the policy are repayable (subject to some qualifications) from the judgment in this matter. No evidence was given about the amount of weekly payments he received or precisely when he received such payments. They were received for approximately two years although payments were stopped for a time and then he received a lump sum.[58]
[57] Exh P35
[58] Transcript p 70
As mentioned Mr Valeondis underwent a shoulder operation in January 2001. It was reasonably successful but he was left with ongoing pain and disability. He had further treatment from Dr Waters which included cortisone injections. During this time Dr Waters certified him unfit for full time duties although at some stages he was fit for light duties on a part time basis. No light duties were available.
Mr Valeonidis was aware that TNT was “talking about redundancies”. In October 2001 he took a redundancy package that was offered. I am satisfied that he only did that because he knew he would be unable to return to work as a courier driver with TNT. At the time that the redundancy packages were offered TNT offered the contract drivers the opportunity to become full time employees.[59] I accept Mr Valeondis’ evidence that had he not been injured he would have accepted the employment offer. He received a redundancy package of $42,613.88.[60] This amount included an amount for unused leave.
[59] Exh P89 and the evidence of Mr Allan Transcript p 1029ff
[60] Exh P8
I propose to ignore the redundancy package in relation to my calculations. I have found that his decision to accept the redundancy package was because his injuries precluded him from continuing with that employment. It is not enough for a defendant to establish that a plaintiff has received a benefit that he would not have received but for the injuries. A defendant has to establish that the benefit received must have been received for the purpose of replacing the earning capacity lost. In this case it is a payment made on termination of employment by reason of redundancy and in consequence of an entitlement under an award arising from his years of service.[61]
[61] Wall & Lambe v Wall Unreported, Full Court of SA, 23 December 1998, S7017, per Lander J

It was around that time that Mr Valeondis began sending out his resume to prospective employers. He looked for jobs on the Internet and with employment agencies. He had little success in obtaining an interview let alone a job. He then decided to attempt to make a living from property development. I find that Mr Valeondis made reasonable attempts to find employment.
He was at a disadvantage because of his injury and no doubt his age. Had he not been injured he would have remained as a contract courier driver until October 2001. He would then have taken the offer of employment with TNT had it not been for his injury.
The decision to undertake property development
A plaintiff in an action for negligence is not entitled to recover damages for loss of earning capacity unless he establishes that his earning capacity has in fact been diminished by reason of the negligence caused injury and further that such diminution is or may be productive of financial loss.[62]
[62] Graham v Baker (1961) 106 CLR 340; Medlin v SGIC (1994-1995) 182 CLR 1
For the purposes of the law of negligence the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact, to be resolved on the probabilities as a matter of commonsense and experience. That remains so in a case such as this where the question of the existence of a causal connection is complicated by decisions made by Mr Valeondis that may be regarded as a more immediate cause of the loss or damage.[63] In this case I find that it was reasonable for Mr Valeondis to attempt to mitigate his loss of earning capacity by engaging in a different type of employment namely property development and investment.
[63] Medlin v SGIC (supra)
Mr Valeondis had a long standing interest in “property”. He and his wife had purchased and “negatively geared” property before his accident. This was a long term conservative investment strategy. He had not been involved in the development of property. Even if the accident had not occurred he would have continued his plan to buy investment properties. However I find that it would have been dictated by his financial position. It was most unlikely in my view that he would have considered becoming involved in property development as opposed to perhaps purchasing a further residential home and “negatively gearing” it had the accident not occurred.
In April of 2002 he came across an advertisement in “The Advertiser” relating to a property seminar being held in Adelaide. The seminar introduced him to a “course” on property investment lasting eight weeks. He decided to undertake the course. It cost $15,000 and was conducted in Melbourne. It was run by the National Investment Institute.
A number of participants of the course were selected to participate in a particular development. He was not selected. However a group of people not selected decided to form their own company which they did in February 2003. It was called Platinum Partners Group. They undertook a project at Mawson Lakes. Mr Valeondis formed his own company PMJ Holdings to hold his share in Platinum Partners Group. Mr Valeondis also attempted a number of developments on his own.
Much evidence was led about the property developments. Due to my ultimate conclusion I do not intend to go through the evidence in detail. Many documents were produced and tendered. The financial statements and taxation documents of the entities that Mr Valeondis had an interest in were tendered. Mr Frayne cross‑examined Mr Valeondis thoroughly about the matter. Mr Frayne was at a considerable disadvantage as much of the material was not disclosed pre trial (or well before trial). Indeed substantial material was subpoenaed by the defendants either at the commencement of the trial or during it. However gradually the financial position of Mr Valeondis became clear.
I have had regard to the documents tendered both by the plaintiff and on behalf of the defendants. I have had regard to the submissions of counsel in relation to the effect of the documents and the evidence of Mr Valeondis. Mr Harms took me carefully through the tendered documents to explain the position adopted by the plaintiff. I have carefully considered the evidence and documents. In general terms I agree with his analysis of the documents undertaken by Mr Harms.
Mr Valeondis invested time and money in developments undertaken by the Platinum Partners Group and related entities, through the PAV Family Trust and in partnership with his wife. As at the time of trial he was still involved with some of the developments. He was attempting to sell most if not all of his interests. The defendants did not, in general terms, contest the analysis made by Mr Harms.
The documents and the evidence demonstrate beyond any doubt that Mr Valeondis was an unsuccessful property developer. Whilst a couple of the projects may have made a little profit the majority of them (some of them still going) have been financially poor developments. The evidence demonstrates that Mr Valeondis has made and continues to make a substantial loss in relation to his attempt to change his employment. The financial documents and taxation returns establish that the accumulated losses in the PAV Family Trust, the Platinum Partners Land Trust and Platinum Partners Group Pty Ltd in which he had an interest from 2003 through to 2007, are substantial.
Mr Valeondis made a number of applications for loans for “refinancing”. He was coy about that in the witness box. He made application by way of “low doc” loans. In the applications he asserted that he had income of $200,000. He clearly had no such income. He was cross-examined very effectively about that by Mr Frayne. Mr Valeondis told me that his assertion of income of $200,000 was made because he believed that when he sold some of the properties he would receive that amount of money or something close to it. Whilst he may have initially thought that as time progressed he continued to make that assertion in the financial documents although there was little or no chance of him receiving such a figure. The inference that he was simply, particularly in 2006 and 2007, refinancing his loans to “stay afloat” and have money to live on is irresistible. However under oath he would not accept that proposition. In my view he was not telling the truth about that.
It is likely that Mr Valeondis simply cannot face the fact that his developments were financially poor decisions. His answers to these topics were simply an attempt to “save face”. However his answers were not truthful and made me consider very carefully what affect that had on his overall credibility.
Mr Valeondis has been a hard working man all of his life. Prior to his injury his life was planned and under control. He had a job he enjoyed and stable relationship. The injury changed that. During the course of the trial it was apparent that Mr Valeondis was struggling to come to terms with the financial position in which he now finds himself. Taking all of those matters into account and having carefully considered the submissions of the defendants I am satisfied that I can generally rely on the evidence of Mr Valeondis.
Mr Harms for the plaintiff did not seek to establish the actual loss made during the course of the involvement of Mr Valeondis in the post accident property development and investment. There was no claim made for the loss. The plaintiff was content to have damages assessed on the basis that he had made no money during that period and claim simply what he would have earned as a courier driver for the relevant period. He argued that it was not necessary for me to make specific findings about losses as long as I was satisfied that, looking at his post accident involvement in property development and investment as a whole, the plaintiff had lost money. Given that approach by the plaintiff I do not have to make specific findings as to his actual losses.
As mentioned the defendants did not argue strongly against the analysis performed by Mr Harms. However they raised some issues.
At some stage the Platinum Partners Group set up their own office at Goodwood. The participants in the venture appear to have adopted different roles in the organisation due to their differing qualifications and experience. Mr Valeondis appears to have spent many hours in the office performing “office duties”. This included paying accounts, organising loans, paying the loans etc. He was not an employee and was not paid. However he was clearly capable of performing the duties.
During the course of his work with Platinum Partners Group there was a short period of time when money was made. This involved the running of seminars of that same type that attracted Mr Valeondis to the course that he undertook. If a person, as a result of the seminar, attended the course Platinum Partners received a commission from the organiser namely the National Investment Institute. Platinum Partners received income of approximately $200,000 by this method. It ceased when the organiser of the National Investment Institute, Mr Henry Kay was prosecuted for breaches of the Trade Practices Act.
Mr Valeondis received income from Platinum Partners for the period May 2003 to March 2004. This was distributed to him as “consultancy fees” and billed to Platinum Partners by PMJ Holdings Pty Ltd.[64]
[64] Exh P34
There was argument before me as to how I should treat these payments. It was submitted by the defendants that this income should in some way be quarantined from any other losses (if I found them to be losses) relating to Mr Valeondis’s property developments. In my view such an approach would be artificial. The payments arose directly as a result of his involvement with Platinum Partners Group. They are intrinsically related to all of his property development work. They should be included in all of the other material relating to his property investments. In my opinion I need to take a panoptic view of his work over the period of time he was involved in this type of work. I need to determine whether, looking at his property investments as a whole, whether the exercise of his capacity has been productive of financial gain. In my view, even taking into account the “consultancy” payments Mr Valeondis has suffered a significant loss overall.
Assessment of loss
In assessing his past loss of earning capacity it is appropriate to divide the time into three periods.
First the period from the date of the accident to the end of his receipt of sick leave payments namely the 6 November 2000. As previously indicated it appears that his sick leave was paid to him on the basis of a 38 hour working week (approximately). He is not to be compensated for his loss of sick leave. His evidence and the documents support that it is likely that he would have worked a 50 hour week (at a higher hourly rate). Mr Valeondis is entitled to be compensated for the difference between what he would have earned and what he received by way of sick leave. He would have had to pay tax on the extra amount. I allow $1,500 for that period.
From then until approximately October 2001 he was paid an amount under his Accident and Insurance Policy. I have not been given those figures. However I will assume that had the accident not occurred he would have worked in that period of time as a courier driver earning about what he earned just prior to the accident namely approximately $27,000 per annum (gross). As the money paid under the insurance policy was taxable and that it has to be repaid I will allow the gross sum he would have earned for that period. I allow $27,000.
I have found that he would have accepted the offer of employment with TNT around October 2001. I note the evidence of Mr Allan that as at July 2002 the pay for such a job was approximately $800 gross per week. As at 17 October the pay was approximately $950 gross per week or $740 net per week. Thus Mr Valeondis would have been earning, over the period from November 2001 to the date of judgment, somewhere between approximately $600-$740 per week. On the evidence it is not possible to be any more precise. It is now nearly seven years of lost capacity. Taking a “broad axe” to these figures I allow an average of $675 net per week for a period of seven years. That leaves a figure of around $245,000 for this period of time.
Thus I find the starting point for his past loss of earning capacity is $283,500 from the date of the accident until the time of judgment.
Contingencies have to be applied. As at November 2007 Mr Valeondis had commenced work as a real estate salesman. In my opinion it was the appropriate course for him to adopt. Whilst it was reasonable for him to undertake property development in an attempt to exercise his earning capacity, given his lack of success he simply could not continue any longer that he did. He had to try and is now trying to exercise his capacity in a different way. If that is unsuccessful there are other jobs he could consider. He would be fit for “lighter” courier jobs. Of course he would be at a disadvantage on the open labour market with his disability and age in any event. Further there are other contingencies to allow for such as lengthy overseas holidays and possibly trips to various parts of Australia. These trips may have been longer than the available holidays. To take into account the negative contingencies I reduce his damages by 20%. I allow $225,000 under this head of damage.
Future loss of earning capacity
Mr Valeondis has a permanent restriction on his earning capacity. He is unable to perform his job as a courier driver. However he is a hard working man and I am confident that he will attempt to find work if his current job as a land salesman is unsuccessful. He would be capable of doing other types of courier work such as a medical courier. He has demonstrated an excellent capacity for basic bookkeeping.
I find that he would have not retired as a courier driver until age 65. He is currently 58 years of age. His current net wage as an employee of TNT would be approximately $740 per week net. The value of the loss of $1 for a 58 year old male at the discount rate of 3% is $319. That leaves a potential figure of $236,000 assuming he was unable to find work.
I allow a figure of $80,000 for future loss of earning capacity.
Gratuitous Services
Little evidence was led about this. Immediately after his operation there was a time when Mr Valeondis required a lot of assistance from his wife in dressing, shaving, showering and doing simple things like washing his hair. This lasted on a diminishing basis for about three months. After that Mr Valeondis has able to care for himself. He remains unable to mow his lawn and do household maintenance such as heavy gardening, painting and general repair work of his home and beach residence. His brother-in-law performs some of the work at Wallaroo. However he receives a benefit in being able to stay in the house rent free. Mrs Valeondis gave supporting evidence.
Little or no evidence was led relating to costings. I was asked to apply a “broad axe”. Where there is so little evidence about the costings the axe must be very big and blunt.
I allow the sum of $3,000 for past gratuitous services and $7,000 for future gratuitous services.
Future Medical Expenses
It is possible although not probable that Mr Valeondis may need a future operation. It is not likely to be for some 10 years. No direct evidence was led as to operative costs. I have the list of prior medical expenses. I bear in mind that I must assess this item in today’s costs. It may be that whether he has a further operation or not Mr Valeondis may need some further physiotherapy.
I allow $500 under this head of damage.
Special Damages
Special Damages were agreed as to quantum in the sum of $15,393.50.[65] Given my findings in relation to liability and damages I award that sum.
[65] Exh P95 and Transcript p 1444
Pain and suffering      $40,000.00
Past loss of earning capacity  $225,000.00
Future loss of earnings  $80,000.00
Past and future gratuitous services               $10,000.00
Future medical expenses  $500.00
Special damages   $15,393.50
TOTAL  $370,893.50
Interest
I will hear the parties in relation to interest.
I will also hear the parties as to the orders to be made on the Contribution Notices and costs.