Young v Masselos & Co
[2010] NSWDC 169
•13 August 2010
CITATION: Young v Masselos & Co [2010] NSWDC 169 HEARING DATE(S): 6, 7, 8 October, 13 November 2009
JUDGMENT DATE:
13 August 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict and judgment for the plaintiff in the sum of $67,344.75 including interest;
2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days notice if further orders are required.CATCHWORDS: TORTS – negligence – legal practitioners – admitted failure of solicitor to advise plaintiff of his potential common law right to claim damages for personal injury in the workplace involving occupier’s liability – related failure to institute timely proceedings to claim damages for personal injury arising from alleged negligence of the occupier of premises where plaintiff sustained injury – whether the barred claim would have succeeded if litigated – liability and causation considerations arising under Civil Liability Act 2002 – whether causation of claimed loss established - - DAMAGES – measure of damages for notional proceedings – adjustments required – whether plaintiff entitled to a verdict in his favour after adjustments LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Practice Note DC (Civil) 15
Uniform Civil Procedure Rules 2005 Sch 5
Workers’ Compensation Act 1987CASES CITED: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Hackshaw v Shaw [1984] HCA 84 per Deane J at [26]; (1984) 155 CLR 614
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Papatonakis v Australian Telecommunications Commission & Anor [1985] HCA 3; (1985) 156 CLR 7
Tipper v Williams (No. 2) [1994] NSWCA 312PARTIES: John Young (Plaintiff)
Masselos & Co – a Solicitors Corporation (Defendant)FILE NUMBER(S): 3025 of 2008; 2008/317783 COUNSEL: Mr AJ Lidden SC with Mr M Daley (Plaintiff)
Mr M Dicker (Defendant)SOLICITORS: Maxwell Berghouse & Ives (Plaintiff)
Yeldham Price O’Brien Lusk (Defendant)
JUDGMENT
Table of Contents
A. INTRODUCTION Nature of the case [1] – [3] Credibility of testimony [4] Summary of findings [5] Background [6] – [12] Issues [13] – [18] B. EVIDENCE REVIEW Overview of oral evidence [20] Overview of documentary evidence [21] – [24] C. FACTS The plaintiff, Mr John Young
[25] – [58] Miss Marie Young
[59] – [64] Miss Dina Masselos
[65] – [81] Mr Peter Mooney
[82] – [91] D. EXPERT EVIDENCE ON LEGAL ISSUES Array of expert legal opinions [92] – [95] Mr O’Halloran
[96] – [104] Mr King SC
[105] – [111] Mr O’Halloran - supplementary
[112] – [115] E. FINDINGS ON ISSUES CALLING FOR DECSION Issues - stage 1 – Merits of the barred claim [117] – [143] Issues - stage 2 – Retainer of the defendant [144] – [147] Issues - stage 3 – Probable course and quantum absent the breaches [148] – [162] Issues - stage 4 – Adjustments to notional assessment and causation [163] – [186] F. DISPOSITION & ORDERS Disposition [187] Orders [188]
A. INTRODUCTION
Nature of case
1. The plaintiff claims damages for negligence against his former solicitors, Masselos & Co, for not advising him of an applicable 3 year limitation period in which he was required to commence proceedings in respect of a potential claim for damages for personal injury against an occupier of premises where he had earlier sustained an injury, which occurred in the course of his employment.
2. The plaintiff claims his former solicitor was also negligent in failing to commence proceedings against the occupier of those premises within the applicable 3 year limitation period for such a claim.
3. At the commencement of the trial, the defendant conceded there had been a relevant breach of the duty of care owed to the plaintiff, but disputed the claim that in these proceedings, the plaintiff had incurred any resultant loss or damage in respect of the barred claim.
Credibility of testimony
4. No fundamental issues arose concerning the credibility of testimony. I accept that all of the witnesses who gave their evidence did so to the best of their respective recollections on the relevant matters in dispute. In my view, matters of difference within the evidence were not fundamental but related to matters of emphasis and impression. Those matters of difference are dealt with on an issue-by-issue basis in the context in which they arose.
Summary of findings
5. Consequent upon the admitted breach of duty of care, and on an analysis of the causation consequences of that breach, having regard to the relevant provisions of the Workers’ Compensation Act 1987 [“WC Act”] and the Civil Liability Act 2002 [“CL Act”], I have found that the plaintiff has established an entitlement to damages which I have assessed in the amount of $67,344.75 including interest.
Background
6. The background to these proceedings is that at about 6:20am on Thursday 8 May 2003, the plaintiff was injured whilst in the course of his employment as a security guard patrolling a decommissioned and partly demolished harbourside naval submarine base known as HMAS Platypus at Kirribilli, in Sydney. The plaintiff was injured when he slipped whilst descending a flight of outdoor stairs in darkness and in circumstances where the overhead outdoor lighting was not working due to its damaged state.
7. At the time, the stairs in question were wet due to the effects of recent heavy rainfall that had occurred over the course of the previous week. This had rendered the stairs slippery due to the presence of moisture on moss, lichen, leaves and twigs that had accumulated on the stairs over time. The plaintiff claims that as he placed his footing whilst descending the stairs in question, he slipped, fell and injured his lower back, his neck and his right shoulder.
8. The plaintiff claims these injuries were occasioned by reason of the negligence of the Commonwealth of Australia, as the occupier of the premises.
9. On 8 October 2003 the plaintiff consulted the defendant’s firm to seek legal advice and assistance concerning his potential rights to claim compensation for his injuries. No common law damages proceedings had been commenced on the plaintiff’s behalf by the time the limitation period for such a claim had expired on 8 May 2006.
10. In these proceedings, the plaintiff claims damages arising from the defendant’s alleged failure to appropriately advise him and failure to bring timely proceedings on his behalf against the Commonwealth in respect of his injuries, in circumstances where a solicitor exercising reasonable skill and care would have filed the proceedings before 8 May 2006, or alternatively, would have made a timely referral of the plaintiff to another practitioner so that the contended proceedings could have been filed by 8 May 2006.
11. The plaintiff received and continues to receive weekly payments of workers’ compensation payments from the insurer of his former employer. There is no complaint by the plaintiff concerning the non-commencement of a claim for damages against the former employer.
12. Given the date the plaintiff consulted the defendant’s firm, it was agreed between the parties that if the notional proceedings had not been barred, the notional trial date for those proceedings would have been 1 February 2006.
Issues
13. A plethora of matters were placed in issue in these proceedings. For convenient staging of the required analysis, after setting out my findings on the underlying matters of fact, the issues that I consider call for decision have been arranged into a sequence of 4 sets of issues, each of which involves a number of sub-issues.
14. The first set of issues concerns the probable merits of the barred claim. The second set of issues concerns matters arising out of the defendant’s retainer. The third set of issues concerns the appropriate approach to be taken to the quantification of notional damages in the event of a finding in the plaintiff’s favour in the now barred proceedings. The fourth set of issues relates to the adjustments that are required to be made to the likely award of damages in the barred proceedings and, therefore, the central causation issue in the present proceedings.
First set of issues – Probable merits of the barred claim
15. After determining the underlying matters of fact, in respect of the first set of issues that relate to merits of the barred claim, the issues that arise to be determined are:
(a) The scope, content and breach of any duty of care owed to the plaintiff by the Commonwealth of Australia as occupier of the premises where the plaintiff was injured;
(b) The scope, content and breach of any duty of care that was owed to the plaintiff by PJ Investigations Pty Ltd, as the plaintiff’s employer at the time of the injury;
(d) Whether the plaintiff’s injury was caused by any contributory negligence on his part, and if so, to what degree.(c) The likely apportionment of responsibility as between an occupier defendant and an employer for the purposes of s 151Z of the WC Act ;
Second set of issues – Matters arising from the retainer of the defendant
16. In respect of matters arising from the second set of issues that relate to the retainer of the defendant, the issues to be determined are:
(b) The manner in which the defendant was in breach of the duty of care owed to the plaintiff.(a) The scope and content of any duty of care owed to the plaintiff by the defendant arising from his retainer of the defendant regarding his potential rights to claim compensation for his injuries;
Third set of issues – Probable course of events absent conceded breach of duty of care
17. The third set of issues concerns the probable course of events that would have ensued if the breaches of the duty of care had not occurred. The issues for determination are:
(a) Whether the plaintiff would have met the threshold required by s 151H of the Workers’ Compensation Act 1987 concerning at least 15 per cent whole person impairment;
(b) Whether the plaintiff would have commenced proceedings against the Commonwealth absent the conceded breaches;
(c) The probable course the plaintiff would have taken if his legal options concerning his potential rights to claim compensation for his injuries had been fully explained to him by the defendant;
(e) The probable terms of a damages award in the barred proceedings.(d) The probable timing of the notional trial;
Fourth set of issues – Probable quantum of the barred proceedings, adjustment and causation
18. The fourth set of issues concerns the assessment of damages of the barred claim, together with adjustments that are required to be made to the probable damages award in the barred proceedings. The issues to be determined are:
(b) The nature of any adjustments that are required to be made in these proceedings to an assessment of notional damages in the barred proceedings for :(a) Whether the admitted breach of duty on the part of the defendant caused the plaintiff to suffer any loss capable of assessment in the proceedings, and if so, the nature and extent of that loss;
(i) the assessed responsibility of the employer for the purposes of s 151Z(2) of the WC Act ;
(ii) the value of weekly workers’ compensation payments and medical expenses to the date of the notional trial;
(iii) the agreed probable unrecoverable solicitor/client costs that the plaintiff would have been likely to have incurred in the notional proceedings;
(iv) the risk or chance that the claim against the Commonwealth could either fail or that the plaintiff may have to bear the consequences of a contributory negligence finding, or that the plaintiff may have had to compromise his claim for a lesser amount than the amount notionally assessed;
(v) the projected but discounted value of the plaintiff’s future workers’ compensation entitlements;
(vii) interest on the residual amount after the foregoing adjustments have been applied.(vi) the value of lump sums already paid to the plaintiff for permanent impairment;
B. EVIDENCE REVIEW
19. In addition to oral evidence, the parties tendered voluminous documentary evidence.
Overview of oral evidence
20. Four witnesses were called to give oral evidence:
(a) The plaintiff, Mr John Young. His evidence traversed his background, his health and working history, the events of his injury, the aftermath of his injuries and matters arising out of the retainer of the defendant’s firm by the plaintiff;
(b) Miss Marie Young, the plaintiff’s sister. Her evidence related to the plaintiff’s abilities and activities before and after his injury;
(d) Mr Peter Mooney, a barrister whom the defendant engaged to advise the plaintiff.(c) Ms Dina Masselos, a solicitor who was employed by the defendant, and who had the principal carriage of the plaintiff’s matter;
Overview of documentary evidence
21. Both parties tendered voluminous documentary evidence.
Plaintiff’s documentary evidence
22. In the plaintiff’s case the following exhibits were tendered :
(a) Exhibit “A” which comprised 2 expert opinions respectively dated 24 July 2009 and 12 August 2009 prepared by Mr Stephen O’Halloran, a solicitor with extensive experience in a b road range of personal injury litigation;
(b) Exhibit “B” which comprised a series of 7 colour photographs showing aspects of the premises where the plaintiff claimed to have sustained the injury in question;
(c) Exhibits “C” and “D” which comprised copies of undated letters from CGU insurance addressed to the plaintiff inviting him to make contact to discuss assistance with re-entering the workforce;
(d) Exhibit “E” which comprised a copy of an application filed with the Chief Industrial Magistrate on 17 December 2003 on behalf of the plaintiff to recover monies from his former employer;
(e) Exhibit “F” which comprised the plaintiff’s application in the Chief Magistrate’s Court for the recovery of money owing to him in respect of the period 1 October 2000 to 30 June 2003;
(f) Exhibit “G” which comprised a schedule of industrial award rates between I January 2000 and 4 May 2003;
(g) Exhibit “H” which comprised a book of carbon copies of invoices he had issued to his former employer providing some evidence of his working hours;
(h) Exhibit “J” which comprised a copy bundle of medical reports issued by Dr Jeffrey Eisman, a consultant rheumatologist who has treated the plaintiff;
(i) Exhibit “K” which comprised a copy of a medical report from Dr Alex Pilsky, a consultant psychiatrist who was asked to examine the plaintiff by his solicitor for the purpose of this litigation;
(k) Exhibit “M” which comprised the plaintiff's minute book which evidenced the times of his security patrols on the premises in question.(j) Exhibit “L” which comprised a schedule of site visits to the premises between April 2001 and 2 February 2002;
Defendant’s documentary evidence
23. In the defendant’s case the following exhibits were tendered :
(a) Exhibit “1” which comprised 2 volumes consisting of 755 pages of papers that constituted the file the defendant’s firm kept in relation to the plaintiff’s underlying matter, consisting of :
(i) The pleadings ;
(ii) An expert opinion dated 23 February 2009 from Mr L King SC, a senior counsel with extensive experience in advising and appearing in a broad range of personal injury litigation;
(iii) Materials in connection with workers’ compensation claims formalities;
(iv) Medical evidence in the form of 71 medical reports from 30 different practitioners;
(v) Statements and claim forms;
(vii) Material produced by the workers’ compensation insurer.(vi) The correspondence file maintained by the defendant’s firm, comprising 312 separate documents in the categories of copy letters and file notes,
(b) Exhibit “2” which comprised the brief forwarded to Mr Mooney from the defendant’s firm.
24. I will refer to various parts of these documents where it becomes relevant to do so.
C. THE FACTS
25. Before considering the expert evidence and the issues calling for decision, in the paragraphs that follow, I set out the relevant factual background, including the plaintiff’s pre-injury situation, the circumstances in which he came to be injured, the retainer and the related dealings he had with the defendant’s firm, and the subsequent course of events that led to the institution of these proceedings. I consider that the plaintiff gave his evidence truthfully and I have accepted his evidence on the matters referred to in his evidence. Unless otherwise stated, the paragraphs that follow comprise my findings on the underlying factual matters.
Plaintiff’s background
26. The plaintiff was born in Scotland in 1962. He arrived in Australia with his family when aged 6 years in 1968. He was aged 41 years at the time of his injury. He had completed his schooling in 1980 at the end of Year 10. He did not go on to complete his Higher School Certificate. Before the injury in question the plaintiff enjoyed reasonably good physical and emotional health. He described himself as being in good physical condition before his injury. He was able to cope with a range of physical work, household and home maintenance tasks without difficulty.
27. Whilst the plaintiff was still at school, during school holidays and on Thursday nights, he worked part-time in a sports shop. He described himself as not being academically gifted. On leaving school he obtained work as a bread carter for a bakery and continued with that work managing to operate his own bread run for a number of years.
28. In 1986 an opportunity arose for the plaintiff to purchase the sports store where he had been working part time in his student days. He bought the store from his next-door neighbour and he continued to run it for a number of years. During this time he also opened a nightclub in Richmond in partnership with another person. He continued to run the nightclub for almost 4 years. He described the nightclub business as “just breaking even”.
29. In 1988 the plaintiff entered the sporting goods industry. He ran an Athlete’s Foot franchise store in Liverpool. This business was taken over by Rebel at a time when that company had only one store. The plaintiff was approached by Rebel because that company wanted to acquire his shop at Liverpool. Thereafter the plaintiff continued to work for that company. Whilst working with Rebel he assisted to develop the company. He became a national footwear buyer and a director of the company that traded as Rebel Sports. He stayed in that position for 10 years. In that time Rebel developed its business into a chain of 15 stores. The plaintiff became restless with the structure and decided to leave his job and do some travelling.
30. Thereafter, the plaintiff opened a furniture store in Liverpool with another person. It was successful and he sold it to his business partner.
31. In 1998 the plaintiff obtained qualifications in the security industry and with the assistance of a friend who was an ex-police officer, he obtained employment as a security officer at various sites for various employers. He worked as a security officer at the Olympic venue and thereafter at other places, including as a security guard carrying out shiftwork security patrols of the old naval submarine base at Kirribilli, on the shores of Sydney Harbour.
32. At that time the plaintiff was carrying out security work for two companies, Murrong Pty Ltd and PJ Investigations Pty Ltd. The disused site at Kirribilli had been decommissioned and had been stripped of the main fittings and equipment pending redevelopment. The place was left derelict whilst some site issues concerning toxic chemicals were being sorted out but in the meantime the presence of security guards was required. There were no lights working on the outdoor parts of the buildings. It was part of the plaintiff’s duty to ensure that no squatters or intruders loitered around the buildings on the site.
33. Whilst on duty at the premises the plaintiff’s duties included to patrol the areas of the site every hour. He worked up to 130 hours per fortnight working a 7-day fortnight. He was working on shifts of up to 16 hours on some days. His duties included patrolling the perimeter of the premises, as well as accessing and traversing the outdoor stairways and other areas on the site.
34. The plaintiff described the stairs where he fell as being beside Building 3. These stairs are shown in the photographs comprising Exhibit “B”. His duties required him to walk up and down the stairs as part of the process of patrolling the premises, varying the pattern of patrol by which he used those stairs. Sometimes he walked from the bottom level to the top, and then from the top to bottom, never in the same direction, on multiple occasions per shift. On the day of his injury he had commenced his 16 hour shift at 6.00am and was due to complete the shift at 10.00pm.
Circumstances of the plaintiff’s injury
35. At about 6:20am on Thursday 8 May 2003, whilst the premises were still in darkness, the plaintiff suffered injuries when he fell on the stairs. He described descending the stairs when, at a point about a quarter of the way down from the first landing, he felt his feet slip from underneath him. He said he was unable to keep his balance. He described the perception of one of his shoes going out from under him and he then travelled forward. In these events, the lower part of his back then hit the crest of the rise or corner edge of a step. This resulted in him then hitting his neck on the rise of another step located higher up on the flight of stairs where he had fallen. He also described suffering an injury to his lower left leg.
36. The plaintiff described the condition of the stairs at the time as in parts having some chipped, cracked and broken edges. He described the stairs as being slippery due to the accumulation of moss and lichen. He described the presence on the stairs of long pine needles and dead twigs from an adjacent tree. He described the presence of some slime on the stairs as well as some broken debris from a formerly operational overhead light fitting. He described the stairs as also being rendered slippery as a result of the effects of accumulated moisture from rain that had been falling over the preceding weeks. The impression I gained from his evidence was that the premises were not the subject of regular maintenance for safety. There were no handrails fitted to the stairs.
37. The plaintiff stated that before his injury, he had traversed these stairs on numerous occasions in darkness. He described the walking tread area or tread pathway on the stairs as being slippery because of the effects of wet weather on the moss and lichen that was present on the treads.
38. In his answers to cross-examination, the plaintiff agreed that he was very familiar with the stairs in question, having been carrying out these security patrol duties on the site for the previous three and-a-half years. He said he used to patrol those stairs first thing on his morning shift. He stated that his employer would not know the exact order or pattern in which he would be performing his security patrolling duties, although the principal of his employer’s company was familiar with the site. Over the years the plaintiff had worked on the site, his employer was never on the site at the same time as himself.
39. The plaintiff explained that the method by which any on-site problems, including safety problems, were communicated to the employer was through notations made in an on-site logbook. He stated that the principal of his employer’s firm, Mr Tippett, personally did a couple of shifts per week on-site. From this evidence I infer that Mr Tippett was either aware or ought to have been reasonably aware, of what had been written in the book, and therefore, the condition of the premises. Exhibit “L” was an extracted list that contained some examples of such problems.
40. The plaintiff provided his own flashlight torch on site because his employer had not provided him with one. The plaintiff stated that he had slipped down the stairs in the incident in question notwithstanding that he had a torch. The plaintiff stated that when he fell he had been using the torch to illuminate the stairs ahead of him as the place was still in darkness. He stated that he had made an entry in the on-site logbook concerning the details of his fall on the day in question.
Subsequent course, treatment and resulting problems
41. On the day of his injury, the plaintiff continued the remainder of his shift from the CCTV control room because of the injury to his neck and lower back. These injuries affected his ability to move about because he was in considerable discomfort. He went to see a doctor at a medical centre after completing his shift. He was initially given physiotherapy treatment. Two days later he went to consult his usual general practitioner concerning his injuries.
42. Thereafter, the plaintiff experienced continuing pain and discomfort in his neck and lower back. He also experienced right shoulder and right arm pain, as well as experiencing a sensation of ringing in the ears, the latter problem persisting for about 6 weeks before it eventually subsided. He suffered from continuing headaches with associated numbness across the forehead. He received a series of cortisone injections to his right shoulder in the course of the treatment he received for his post-injury problems.
43. The plaintiff attempted to return to his pre-injury on-site work on 10 May 2003, however he restricted his duties to security observations from the CCTV control room without undertaking any patrolling of the premises. His general practitioner subsequently certified him unfit to continue with his work. In June 2003 he attempted resumption of his pre-injury duties again but after one shift he was again certified as being unfit to continue. He resigned his employment with PJ Investigations at the end of June 2003 because of an industrial issue concerning underpayment of wages, as well as because he was unable to continue with the work. He was in receipt of continued workers’ compensation payments of $566 per fortnight.
44. The plaintiff described pursuing approximately 12 months of casual after-hours security employment with Secure Corp Pty Ltd at a shopping centre escorting shopfitters around the premises. He said this work involved an average of about 12 hours of work per week for which he was paid make-up pay by the workers’ compensation insurer. In about November 2005, he ceased this work on medical advice because his neck pain was flaring up. He has not worked since then and has continued to receive weekly workers’ compensation payments.
45. The plaintiff denied the suggestion that the only reason he left his work with PJ Investigations Pty Ltd on 17 July 2003 was because of industrial action being taken against his former employer for recovery of underpaid wages although his letter of resignation certainly suggests there was only one reason : Exhibit “1” p 752. I accept his denial in this regard.
46. The plaintiff has received treatment from his general practitioner, Dr Vallabhjee, from Dr Geoffrey Eisman, a rheumatologist and from Professor Murrell, an orthopaedic surgeon. He also attended the pain management clinic at St George Hospital where he obtained assistance from a physiotherapist, a general practitioner and from a psychiatrist.
47. The plaintiff described his residual disabilities as comprising ongoing neck, shoulder and back problems, difficulty sleeping, with frequent waking at night, and of having a very flat emotional state. He said he has not been completely pain free. He described pain radiating down both legs, predominantly in the right leg. He described ongoing headaches but with decreasing frequency. He also complained of continuing pain in his right wrist, and irritability, which he described as being “crabby as hell”.
48. The plaintiff described some difficulty he experienced with a rehabilitation provider which caused him confusion and frustration : Exhibits “C” and “D”. He was also referred to a rehabilitation organisation called Peak Conditioning which caused him some difficulties which he described in his evidence, and for which he was referred for psychological treatment, after the workers’ compensation insurance claims manager handling his claim changed, coinciding with a changed level of consideration and assistance with obtaining treatment.
49. He became anxious and depressed and was prescribed anti-depressant medication. He came under the care of Dr Alex Pilsky, a consultant psychiatrist, in conjunction with treatment from a psychologist, Miss Sarkis. He has been diagnosed as suffering from major depression. This was not investigated by his solicitors. He also developed some gastro-intestinal or hepato-biliary problems that arose as a result of taking medications.
50. The plaintiff described his perception that the workers’ compensation insurer, CGU, had employed people to follow him and his sister around. This appears to have caused him to feel he was being particularly harassed and stressed.
51. A substantial issue in the plaintiff’s case was that he has been unable to resume any meaningful work. This necessarily meant that in the barred proceedings, he had a potentially substantial claim for damages.
Retainer of the defendant firm
52. The plaintiff consulted Masselos & Co for legal advice and assistance to claim compensation. In view of the concessions made by the defendant concerning breach of the duty of care owed, it is not necessary to review the chronology of the consultations and the details of the advice that was or was not given to the plaintiff.
53. The plaintiff said that on his first visit to the firm he was seen by Miss Francine Masselos. He said that thereafter, he saw Miss Dina Masselos on some 15-20 occasions. He said he also had attended a conference with counsel, Mr Mooney, at his chambers. The plaintiff returned to the premises about 6 months after his injury for the purpose of taking the photographs which ultimately became Exhibit “B” in these proceedings.
54. The plaintiff said he could not recall being told by his lawyers that they held a preliminary view that the Commonwealth, as occupier of the premises where he was injured, was liable for his injuries. He recalled attending the conference convened with Mr Mooney. He did not recall a discussion about the need to meet a 15 per cent threshold for whole person impairment before action could be taken against his employer for the injury in question.
55. On the assumption that he had been given advice to the effect that he should proceed with his workers’ compensation rights rather than to sue the Commonwealth, the plaintiff disagreed with the suggestion that he would have accepted that advice. Notwithstanding the question, his answer is not admissible as being determinative of the issue raised by the question ; s 5D(3)(b) of the CL Act.
Settlement of workers’ compensation proceedings
56. The plaintiff agreed his first set of workers’ compensation proceedings were listed for hearing and then discontinued on 31 August 2005 due to an administrative problem that required the proceedings to be recommenced. The recommenced proceedings were later settled for a lump sum that represented his entitlements for the assessed percentage impairments pursuant to s 66 of the WC Act. He settled the workers’ compensation proceedings for approximately $30,000 from which he netted about $13,000 after repayment of Centrelink and HIC payments. An amount of $2,500 related to permanent impairment.
57. The plaintiff had earlier stated that he would have found it useful to have a lump sum to invest to maximise return on investment instead of relying on fortnightly payments. He gave that evidence against a background of indebtedness which caused his sister to sell her house to pay for his credit card debts and to repay a personal loan whereby he was taking cash advances from one credit card to pay another.
58. I infer from this evidence that the plaintiff was interested in pursuing a lump sum award for damages. I consider this would have been his subjective view because he had a background of past success in his business and in his working life and because he had an interest in investing funds. I find that if the plaintiff had been given advice to pursue a common law claim against the Commonwealth he would have given instructions to institute and prosecute such a claim.
Miss Marie Young
59. Miss Marie Young, the plaintiff’s sister, was called to give evidence in his case concerning her personal observations of the plaintiff. She was in a relevant position of advantage for making these observations, as they shared accommodation. She described the plaintiff as being a very healthy, fit and active person before the injury in question. She also described his active involvement in business activities up until the time he worked in the security industry. In this regard, she stated that he was “very hands on” and gave me the distinct impression that he was very effective in his work.
60. The context of Miss Young’s evidence was her description of the plaintiff’s situation between the time of his injury on 8 October 2003, up to the time of the agreed notional trial date of 1 February 2006.
61. Miss Young’s observations of the plaintiff were that after the injury in question, he was very restricted in his physical activities, even for something as simple as driving the car. She described him as moving about in a very stiff-like manner, with obvious difficulty in carrying out activities such as bending and the like. She stated that he had ceased his involvement in his pastime of golf, and that his emotional state had changed from being a carefree sort of person to someone who would be bothered by little things and quickly become frustrated and upset.
62. Miss Young described how the plaintiff’s involvement in normal household activities such as maintaining the home, cleaning, vacuuming, dusting, washing, gardening, lawn mowing, looking after the pet dog, car washing and the like had changed from active involvement to being unable to carry out this work and requiring assistance to have his share of the work completed. She described the extra time that she had assumed in undertaking these tasks that would ordinarily be performed by the plaintiff as being an average of about 10 hours per week.
63. Whilst the matters explored in cross-examination did not undermine Miss Young’s evidence it became clear that some of the tasks which she had assumed and which were formerly carried out by the plaintiff involved some mutual responsibility for the care of their dog. There was also some scope for overlap of responsibility, including for the described activities.
64. Having regard to these matters, and the absence of any credit challenge to the evidence of Miss Young, I consider that a reasonable allowance of the time taken up by Miss Young to perform household and domestic tasks that were normally carried out by the plaintiff but now fulfilled by her solely as a result of the plaintiff’s injury based inabilities, to be an average of 10 hours per week : s 15(2) of the Civil Liability Act 2002 [“CL Act”]. I accept her evidence.
Miss Dina Masselos
65. Miss Dina Masselos was the solicitor employed by the defendant who ultimately had carriage of the plaintiff’s matter. As at October 2003 she had been admitted to practise as a solicitor for the previous 18 months. Her experience was in the area of personal injury litigation. In December 2003 she took over the file of the plaintiff’s matter from Miss Francine Masselos. She confirmed that the practice of the firm has been to brief Mr Mooney in common law matters and because of the history of the briefing relationship, over the period 2003-2005, the firm tended to accept the advice given by Mr Mooney in such matters.
66. Miss Masselos confirmed attending a conference with Mr Mooney and the client on 18 December 2003, which led to the advice of Mr Moody being furnished on the same date : Exhibit “1” pp 427-428. Although no file note of the advice given in conference could be identified, Mr Mooney’s written opinion confirmed the effect of the advice he had given in conference. There was no written evidence that Mr Mooney had ever changed that view, although other evidence was given concerning risks associated with pursuing slip and fall cases.
67. Miss Masselos explained that Mr Mooney’s advice was based upon the material with which he had been briefed namely, medical reports, medical certificates and handwritten notes from the plaintiff on factual matters. Mr Mooney’s brief was tendered as Exhibit “2”.
68. A file note made by Miss Masselos served to confirm that on 27 January 2004 the plaintiff brought in the photographs of the stairs in question : Exhibit “B”; Exhibit “1” p 431. Miss Masselos stated she later showed these photographs to Mr Mooney.
69. Miss Masselos also confirmed that she had considered the medical evidence relating to the assessment of the plaintiff’s percentage of whole person impairment, after considering the medical evidence and after speaking with a medical expert who had issued a report. Whereas the medical expert had reported that the plaintiff was having a considerable degree of ongoing apprehension and anxiety concerning his bodily injuries, the file note of the conversation with a medical expert referred to the existence of a “gross functional overlay”. The note predated the report of the expert : Exhibit “1” p 444. Miss Masselos was unable to clarify from her recollection as to whether the comment was something that the expert actually told her on the telephone, or whether this was a conclusion on her part.
70. Ultimately, it was not necessary to resolve this point other than to note that a psychiatric opinion has been obtained diagnosing the plaintiff to suffer from a panic disorder with agoraphobia, major depression and a dependence on alcohol that is now in remission. I infer from the history taken by Dr Pilsky, who had been treating the plaintiff since February 2009, that these problems would have been apparent and within the evidentiary pool if the barred proceedings had been prepared for trial : Exhibit “K”.
71. Miss Masselos described having at least one or possibly two further discussions with Mr Mooney concerning the plaintiff’s matter within a week or so following the date of the report from the medical expert, namely 15 April 2004. She stated that in the course of such discussions, she had informed Mr Mooney of concerns that she held about the plaintiff being able to make a claim for damages against his employer, and in the course of the discussion, she stated that Mr Mooney had informed her that there was no point bringing a claim against the Commonwealth as it was necessary in that case to bring a claim both against the Commonwealth and against the employer. That view was not documented by the solicitors but it seems to have been the basis upon which they proceeded.
72. Miss Masselos also stated that some weeks afterwards, she had a conversation with the plaintiff in which she repeated to him the advice that she said Mr Mooney had given her, and which I have summarised in the preceding paragraph. She said this advice was given before the completion of a claim proceeding on behalf of the plaintiff in the Workers’ Compensation Commission. There was no written record or minute of that advice. It appears this was in March 2004. Miss Masselos said she had no further contact with Mr Mooney about this matter after mid-March 2004.
73. Miss Masselos was asked to consider the hypothetical question of what she would have done, in 2005, if the question of the potential for a common law claim against the Commonwealth had been revisited for consideration. She stated that she would have arranged a further conference with Mr Young and Mr Mooney to explore the issues that related to such a potential claim.
74. The evidence of Miss Masselos was explored in the course of cross-examination.
75. Miss Masselos acknowledged that she had not been instructed by the principal of the firm to commence common law proceedings against the Commonwealth on behalf of the plaintiff. She also confirmed that the purpose of her conference with Mr Young and Mr Mooney was in order to elicit additional information from Mr Young concerning his claim. She acknowledged that she had not subsequently advised Mr Young that he could bring proceedings against the Commonwealth independently of any action he might have been able to bring against his employer, as should have been the case.
76. Miss Masselos acknowledged that if the plaintiff had given her instructions to initiate proceedings against the Commonwealth she would have been obliged to accept his instructions but she said that it did not necessarily mean that she would have been obliged to proceed to initiate such proceedings. Although she did not accept that the plaintiff had not been advised of a limitation period, she accepted that he had not been provided with a formal written notification of this fact. She stated that she believed the plaintiff had been made aware that the firm was trying to obtain evidence of an assessment of a whole person impairment greater than 15 per cent, within the three-year limitation period, in order to bring proceedings against the employer.
77. Miss Masselos acknowledged that the effect of the advice from Mr Mooney could be interpreted as being encouraging of the prospects of success of a claim against the employer, subject to obtaining evidence satisfying the 15 per cent threshold that would permit such a claim to proceed. She reiterated her belief that unless that threshold could be established so as to inculpate the employer, there was no point bringing an action against the Commonwealth in respect of occupier’s liability alone.
78. Miss Masselos confirmed that she had not personally undertaken an analysis of the potential value of the plaintiff’s claim, and in this regard relied upon the advice of Mr Mooney. In this regard, she stated that the conversation with Mr Mooney was to the effect that if the employer could not be made liable, it was not worthwhile commencing the proceedings.
79. Miss Masselos’ account of that conversation was that Mr Mooney had told her “if we can’t get the employer in then the case is not worth the money.” Miss Masselos stated that at the time she made no file note of this conversation although she acknowledged that such significant conversations should be noted. She understood that at the time, the decision on whether or not to bring proceedings against the Commonwealth, was being postponed. Unfortunately, no file note was kept in this regard.
80. It was against this background that the defendant admitted that there had been a relevant breach of duty of care.
81. Miss Masselos acknowledged that no psychiatric opinion was obtained in relation to the psychological aspects of the plaintiff’s situation before the expiry of the limitation period. This fact makes the subsequent 30 September 2009 report of Dr Alex Pilsky very relevant, because it provides, albeit in hindsight, an insight into the plaintiff’s psychological condition since his injury.
Mr Peter Mooney
82. Mr Mooney was the barrister briefed by the defendant to give advice in respect of the plaintiff’s claim. He had a background of 25 years of experience specialising in personal injury litigation. In his professional practise he had a longstanding briefing relationship with the defendant’s firm. He confirmed that it was the common practice of the firm to seek his early involvement in the matters in which he was to be briefed. The brief sent to him by Masselos & Co was tendered as Exhibit “2”.
83. He conferred with the plaintiff on 18 December 2003, following which he prepared an opinion on the same date : Exhibit “1” pp 427-428. The essence of that opinion was he thought there was obviously clear negligence on behalf of the employer and that the stairs were in a dangerous condition, thus giving rise to a responsibility on the part of the Commonwealth. That advice was obviously in provisional terms, noting that the medical evidence was to be upgraded and that photographs of the site were to be obtained.
84. Mr Mooney stated that he had a recollection that at some stage after he had delivered his opinion to Miss Masselos, he had been shown photographs of the site at which the plaintiff sustained his injury. I infer these were the photographs that comprised Exhibit “B”.
85. Mr Mooney had given advice to seek to upgrade the available medical opinion evidence because of a practical concern that the processing of the plaintiff’s claim through the conservative framework of the approved medical service [“AMS”] may result in an opinion that the plaintiff had a less than 15 per cent whole person impairment which was the threshold or gateway for determining whether or not a claim for damages could proceed against the employer. This was obviously considered to be a concern and a potential impediment against bringing proceedings for damages against the plaintiff’s employer
86. On behalf of the defendant an attempt was made to elicit opinion evidence from Mr Mooney concerning his views on the assembled medical evidence. On behalf of the plaintiff, Mr Lidden SC objected to that evidence because no expert report had been obtained from Mr Mooney. I upheld that objection : T 121.22.
87. Following analysis of the medical evidence, the defendant did not commence proceedings against the employer because of concerns relating to such threshold matters. No complaint has been made by the plaintiff concerning that decision.
88. Mr Mooney identified his view that he considered the plaintiff did not have a viable option of bringing a modified common law claim for damages against his employer in respect of the injury he had sustained. Mr Mooney explained his comment that the plaintiff should be cautious in respect of bringing an action against the Commonwealth, saying that on the limited information he had available, it may not have been in the plaintiff’s interests to pursue such a claim. He confirmed that any formal evaluation of the plaintiff’s rights on this issue required a consideration of the operation of s 151Z of the WC Act concerning the circumstances of the injury. In this context, in 2004, he confirmed what was common knowledge in the legal profession that there was considerable debate amongst lawyers practising in the personal injury fields concerning the uncertainty of interpretation and application of s 151Z.
89. Mr Mooney confirmed that in any formal consideration of the advisability of the plaintiff pursuing an action against the Commonwealth, for negligence for breach of the duty of care it owed as the occupier of the premises, it was necessary to have precise information as to the mechanism of the injury, the extent of any involvement and fault on the part of the employer and a grasp of the potential of the claim under contemplation.
90. Mr Mooney agreed that when he gave his advice, he did so with express caution because at the stage he gave that advice, he was given very little information as to what damages might arise and he also had very little information with which to assess the potential for assessing the degree of any fault on the part of the plaintiff’s employer. He identified the importance of this latter consideration to be that in any trip and fall case, there is always a concern as to the precise mechanism of injury, and in this context, it is necessary to balance the argued negligence of the employer with the negligence of the Commonwealth as occupier, and the many sub-issues that relevantly arise for consideration.
91. There was no criticism made of Mr Mooney concerning his involvement in assisting Masselos & Co by the provision of advice, either formally or informally, or in respect of the written advice he gave for the benefit of the plaintiff. The question of whether or not Mr Mooney should have been further consulted or involved in the process of considering and advising upon the plaintiff’s potential rights, was entirely a matter for decision by the defendant in consultation with his client.
D. EXPERT EVIDENCE ON LEGAL ISSUES
Array of expert legal opinions
92. Expert reports were tendered without objection or challenge, and without supplementary oral evidence. The respective experts arrived at differing conclusions. There is no question as to their qualifications for expressing opinions on the issues that arise in these proceedings. Some of the differences in the opinion of the experts can be accounted for by reference to the different questions the experts were asked to consider, and some differences may be accounted for by the potential scope for impression and caution to dictate the end point of a legal analysis.
93. On behalf of the plaintiff, Mr O’Halloran was initially asked to consider 2 basic questions that can be summarised as follows. First, he was asked to comment on the manner in which a workers’ compensation insurer could terminate it’s liability to make payments to an injured worker, and secondly, he was asked to comment on how residual workers’ compensation rights should be valued in the context of an action claiming the value of a barred common law claim that could arguably arise from the incident that created the worker’s right to workers’ compensation payments.
94. On behalf of the defendant, Mr King SC was asked to consider 3 questions related to the facts of this case. The first question concerned the prospects of the plaintiff being successful on the issue of liability against the occupier of the premises where he sustained injury. The second question concerned the prospect and extent of a possible finding of contributory negligence on the part of the plaintiff in proceedings against the occupier. The third question concerned the likely finding as to the extent of the employer’s liability for the purpose of s 151Z(2) of the Workers’ Compensation Act 1987.
95. Mr O’Halloran was asked to comment on the opinion provided by Mr King SC and in doing so he provided a supplementary opinion dated 12 August 2002.
Opinion of Mr O’Halloran
96. In essence, in his first report, Mr O’Halloran expressed the view that the evidence available at the relevant time indicated that the plaintiff was precluded from instituting proceedings against his employer because he was unable to satisfy the threshold impairment of 15 per cent : s 151H of the WC Act.
97. Mr O’Halloran was of the opinion that in the plaintiff’s circumstances, it appeared to him and on the very brief facts he was asked to consider, that “an ordinarily competent and prudent attorney would have advised the plaintiff that [in] the circumstances … a common law claim against both the employer and the occupier (the Commonwealth of Australia), would have been open to the plaintiff.” That view must necessarily be tempered by the requirement that the 15 per cent threshold imposed by s 151H must be satisfied.
Plaintiff’s first question – facility for insurer to seek to terminate payments to injured worker
98. In addressing the first question, Mr O’Halloran outlined the legislative scheme of entitlement to workers’ compensation benefits comprising weekly payments for either total or partial incapacity, the payment of reasonable or proper medical and related expenses and the payment of lump sums for impairment, and pain and suffering pursuant to ss 66 and 67 of the WC Act. The identified context of termination of the right to weekly payments at age 66 and the right of an injured worker to claim medical and related expenses, continuing indefinitely.
99. Mr O’Halloran identified the facility for a workers’ compensation insurer to terminate payments to an injured worker who had the benefit of an award in his favour. He explained that could be achieved by either obtaining film to demonstrate activities totally inconsistent with alleged incapacity and medical certification, or by obtaining medical evidence indicating incapacity had ceased, or by obtaining medical evidence that indicated a significant residual earning capacity.
Plaintiff’s second question – valuation of future workers’ compensation rights
100. On the assumption that the plaintiff had established a partial incapacity for work justifying receipt of $300 per week as an incapacity payment pursuant to s 40 of the WC Act, and without regard to modest s 66 entitlements in view of the assessed percentage of impairment, Mr O’Halloran’s assessment was for a further 38 years of statistical life expectancy. He was of the opinion that the valuation of future workers’ compensation rights should proceed in conformity with the decision in Tipper v Williams (No. 2) [1994] NSWCA 312.
101. The effect of that decision was to approve a formula comprising the weekly rate of compensation, less tax, then projected over the period of entitlement using the appropriate discount rate, and reduced by 30 per cent to reflect the vicissitudes that relate to the uncertainties concerning the amount of worker’s compensation payments that may be received in the future.
102. On that approach, he estimated that on a weekly sum of $300, the applicable tax would be approximately $32 per week, leaving a net amount of $268 per week to be projected over 23 years (x 721.2) until the plaintiff’s 66th birthday. That calculation revealed an amount of $193,281, which, after applying a discount of 30 per cent, revealed a rounded down sum of $135,000.
103. Mr O’Halloran explained that this sum would need to have added to it an allowance for the plaintiff’s ongoing treatment expenses, using a similar calculation over the plaintiff’s life expectancy of 37 years as at the notional trial date. Assuming a sum of $25 per week for such expenses, after projection at 5 per cent over 37 years (x 893.6) less 30 per cent for vicissitudes, this yields a rounded down amount of $15,000.
104. According to this approach, and assuming the plaintiff had already received a modest s 66 entitlement, Mr O’Halloran arrived at a valuation estimating the workers’ compensation rights in the rounded sum of $150,000. He identified that amount as the sum to be deducted from the valuation of the lost cause of action when damages are assessed.
Opinion of Mr King SC
105. In essence, Mr King SC was of the view that within the time prescribed for filing common law proceedings, an experienced and reasonably competent legal practitioner would have thought there was some prospect of success on liability in respect of the plaintiff’s potential claim against the Commonwealth of Australia, but that claim could readily fail, or if it succeeded there was a possibility of a finding of contributory negligence of up to about 20 per cent. His opinion was, that advice ought to have been given that the risk of failure of such proceedings, and the cost consequences of such a failure, would have to be drawn to the attention of the client as the path chosen from that point was dependent on the client’s appetite for risk and possible adverse costs consequences in the event the contemplated claim failed to succeed.
Defendant’s first question – prospects of success of the barred cause of action
106. In respect of the first question asked of him, Mr King SC considered the barred action had some prospects of success but he thought the quite firm advice, given by Mr Mooney as to the prospects of the claim being made out against the Commonwealth, was unduly optimistic. Whilst acknowledging that an experienced lawyer in the position of the defendant would have regarded the fact of the absence of a handrail on the premises, in juxtaposition to a fairly substantial flight of stairs, as possibly giving the contemplated proceedings some prospects of success, these prospects had to be weighed against other factors that involved the possible risk of failure.
107. Such other factors included the old appearance of the stairs, a consideration of whether local government approval would have been required for the fitting of adjacent handrails at an earlier time than when the premises began to be occupied by the Commonwealth; the fact that Commonwealth premises would never have been subject to local government control; the fact that it was not unusual to see some flights of stairs in the community without handrails; the fact when the premises were used as a naval base by large numbers of people, no-one had apparently considered the stairs required a handrail; the plaintiff had been patrolling the area for some years beforehand and he had not experienced any mishap or fears concerning a possible fall on the stairs; the premises were decommissioned and not in use, and the security firm in question would be expected to take care for the safety of their own employees; the security firm would be expected to foresee the risk of the stairs having plant matter on them, and having blown lights, as well as the fact that the stairs were open to the elements and could possibly be wet.
108. In view of these circumstances, Mr King SC was of the view that a competent lawyer would have evaluated the prospective case against the Commonwealth and would have given the claimant “blunt communication of the risk of failure and the costs consequences and comment to the effect that a cautious person might well not take the chance but content himself with the prosecution of workers’ compensation entitlements which did not carry any measure of risk, whereas a courageous person prepared to take something of a gamble might sue the Commonwealth.”
Defendant’s second question – likelihood and extent of contributory negligence
109. In respect of the second question asked of him, Mr King SC considered that there was a relatively small prospect that the Commonwealth may have been able to discharge the onus of establishing contributory negligence on the part of the plaintiff. He assessed the scope for such a finding as being in the vicinity of no more than about 15-20 per cent.
Defendant’s third question – likely finding of employer’s liability : s 151Z of the WC Act
110. In respect of the third question asked of him, Mr King SC agreed with the opinion expressed by Mr Mooney, to the effect that the plaintiff’s employer had a higher and more immediate duty of care to the plaintiff than did the Commonwealth as occupier of the premises. The employer’s duty must be taken to have extended to evaluating the safety of the premises where it’s employee would be required to work. The employer must be taken to have been aware that the premises were exposed, and subject to the effects of wind and wet weather, and the risk that intruders might come and vandalise the lighting. In these circumstances he expressed the following view:
“The failure in these circumstances to provide the plaintiff with a hand torch seems unfathomable. I do not believe that ‘unfathomable’ is too strong a word, since every day experience, which I would think equates to a level of knowledge involving judicial knowledge, is that security or night patrol personnel are routinely equipped with torches. If it be correct to say, as I think it is and as I mentioned above, that the plaintiff could not reasonably be expected to provide his own torch, and even if I am wrong about that, since his failure only amounts to contributory negligence, the conclusion must be that the employer fell markedly short of a proper discharge of its duty of care towards him.”
111. The opinion went on to express the view that in such a situation, an application of s 151Z required that the employer should be allocated a greater share of the blame than the occupier, namely in the range 50-70 per cent, with the upper end of the range being more likely, of the order of 65 per cent.
Supplementary opinion from Mr O’Halloran
112. Mr O’Halloran was asked to provide a commentary on the opinion of Mr King SC. He did so on 12 August 2002, when he provided a supplementary report that reviewed the discounting factors referred to in that opinion. Mr O’Halloran took a less pessimistic view than the one taken by Mr King SC and considered the plaintiff would probably have succeeded against the Commonwealth on the issue of liability, with a degree of certainty of the order of 80 per cent to 85 per cent.
113. Mr O’Halloran took a slightly less pessimistic view of the issue of contributory negligence in the claim against the Commonwealth, suggesting a finding of the order of 10 per cent to 15 per cent.
114. On the s 151Z question that required the weighing of the respective culpabilities of the employer and the occupier, he expressed agreement with Mr King SC regarding the range of 50 per cent to 70 per cent being the probable range of responsibility of the employer.
115. Mr O’Halloran considered the suggested 25 per cent discount for loss of chance to be somewhat excessive and thought that in the circumstances, “perhaps 15 per cent would be more realistic”. The provenance of the 25 per cent assumption was that it had been provided by the solicitor for the defendant in these proceedings.
E. FINDINGS ON ISSUES CALLING FOR DECISION
116. I now turn to a consideration of the issues calling for decision in these proceedings.
First set of issues – Merits of the barred claim
117. The first set of issues concerns the merits of the barred claim, including a consideration of duty of care and breach concerning both the employer’s liability and the liability of the occupier, as well as factual causation of the plaintiff’s injuries and alleged contributory negligence on the part of the plaintiff.
Scope, content and alleged breach of the occupier’s duty
118. There is no issue that as occupier of the decommissioned naval base site, the Commonwealth owed a general duty of care to entrants onto its premises. The scope and burden of that duty was to take reasonable care to prevent or minimize the risk of damage from unusual danger of which the occupier either knew or ought to have known, having regard to all the circumstances : Papatonakis v Australian Telecommunications Commission & Anor [1985] HCA 3; (1985) 156 CLR 7.
119. The law concerning the content of the duty owed by an occupier of premises is well settled. It requires that reasonable care be taken in all the circumstances in the face of a foreseeable risk : Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 per the majority at [11] to [12]; (1987) 162 CLR 479 at p 488 following Hackshaw v Shaw [1984] HCA 84 per Deane J at [26]; (1984) 155 CLR 614, at pp 662 – 663. In this case, in addition, an analysis of the liability of the occupier is required to be undertaken within the legislative framework of the CL Act.
120. The relevant circumstances in this case includes the fact that whilst the Commonwealth occupied a decommissioned industrial defence site, it was not reasonably expected that the premises would be open to general access but that access would be limited to persons such as security personnel, demolition or building workers. In these circumstances it was foreseeable that security guards would be present on the premises in order to conduct security patrols within the premises.
121. In these circumstances, I consider that in contemplating the scope of its duty of care as an occupier, the Commonwealth was entitled to assume that the security guards who were employed by a third party to patrol the premises did so having acquired knowledge from their employer that the premises were not being maintained, repaired, cleaned or intended to be kept or made safe to a standard of safety that would be ordinarily expected of an occupier of premises open or available for use by a wider range of persons. This was so because the premises were being guarded to prevent the entry of squatters, vandals and intruders, pending demolition and redevelopment.
122. In those circumstances, the persons making decisions on behalf of the Commonwealth concerning the safety of foreseeable entrants on the premises could reasonably assume that the security guards patrolling the premises would do so according to the terms of their employment and in the knowledge that the premises were not being maintained for safety as if the premises were accessible to the general public. I consider that the Commonwealth was also entitled to expect that the employer of the security guards would in the circumstances make its own assessment of any safety concerns for its employees arising from the specific conditions of risk that prevailed at the site, and to take reasonable steps to ensure the safety of those employees.
123. Any judgments concerning an alleged failure on the part of the Commonwealth, as occupier of the premises, to provide a handrail for use when ascending or descending the stairs, or any alleged failure to ensure the stairs were lit in darkness or kept clean from debris from plant matter to minimize the risk of slipping, must be assessed against the likely use of the premises.
124. In my view, at a notional trial in 2006, notwithstanding the anticipated limited use of the premises, recognizing that the premises would be patrolled, including by patrols undertaken in darkness, it would have been reasonable for the plaintiff to have argued that basic maintenance of the premises should have been provided. Such maintenance could have reasonably extended to arranging provision of lighting over the stairs because there was no handrail, and periodical basic cleaning of plant matter from the stairs. Alternatively, a warning sign or roping off arrangement could have been implemented alerting persons intending to use the stairs to the fact that they were potentially dangerous when wet due to the combination of moisture and accumulated plant matter, rendering the stairs slippery.
125. I consider that with the exception of the handrail argument, the foregoing arguments had reasonable prospects of succeeding at a notional trial in 2006, where the Commonwealth, as occupier would have been the defendant.
126. In my view, an argument that a handrail for the stairs should have been provided by the Commonwealth was one that was unlikely to succeed because the site was not open for general use or access, there was no evidence that the use of the stairs was a mandatory requirement of access for security patrols, and it would have been unreasonable to require such expense to be incurred on a demolition site so as to install a handrail where none had been in use for many years beforehand.
127. I consider that the other arguments I have identified as having reasonable prospects of succeeding would also have assisted to enable the plaintiff to sustain a negligence finding against the occupier according to the requirements of the CL Act in the following respects:
(a) The risk of a security guard using the stairs in darkness and sustaining an injury by falling after slipping on accumulated plant material on the stairs when the material was wet due to rainfall was a foreseeable event : s 5B(1)(a) of the CL Act ;
(b) The risk of injury in the assumed circumstances was neither far fetched, flimsy, fanciful or insignificant : s 5B(1)(b) of the CL Act ;
(c) A reasonable person, knowing the conditions prevailing on the site would have taken precautions aimed at preventing or reducing the risk of injury to security guards using the stairs :s 5B(1)(c) of the CL Act ;
(e) I consider that in 2003, the burden of taking the precautions referred to would have been relatively slight and the social utility of such precautions would have been obvious, namely to assist in keeping persons on the premises, such as security guards, safe from injury : s 5B(2)(c) and (d) of the CL Act .(d) In my view, in 2003, a reasonable person considering the risk of harm of the kind under present contemplation would have taken precautions to either isolate the stairs from use by appropriately placing barricades, or by roping off the stairs, or by providing a warning sign and overhead lighting, or a combination of these measures. I consider this would have been required because if there were no such precautions taken, there was a recognisable probability that harm of the kind under present contemplation would occur from slipping, so as to cause serious injury : s 5B(2)(a) and (b) of the CL Act ;
128. In the foregoing circumstances, where it was likely to have been shown that the Commonwealth did not take those steps, I consider that it was likely the plaintiff would have secured a negligence finding against the Commonwealth in the barred proceedings.
129. In identifying this likelihood, the analysis of the liability position of the occupier of the premises does not end there as there are other relevant provisions of the CL Act that need to be taken into account.
130. The occupier was not obliged to warn users of the premises of a risk that was obvious : s 5G and s 5H of the CL Act. In the circumstances, I consider that there was a reasonable and good chance that the occupier could have avoided liability in the described circumstances on account of the obvious nature of the risk posed by the condition of the stairs. The basis for such a finding would have been the plaintiff’s familiarity with the premises over time, and his awareness of the hazardous nature of the condition of the stairs due to the combined absence of any handrails, and the presence of moisture laden plant material on the stairs.
131. I also consider that the Commonwealth would have had some prospects of showing that the plaintiff’s fall down the wet stairs at a time they were laden with plant matter was an inherent risk that could not have been avoided by the exercise of reasonable skill and care. If that argument succeeded, this would have the effect of avoiding a liability finding against the Commonwealth : s 5I of the CL Act.
132. Having determined that it was likely that the plaintiff would have secured a negligence finding against the occupier, the prospect of the claim failing to succeed must still be taken into account when assessing damages in these proceedings. The possibility of the claim failing could arise on a general analysis, or by the application of CL Act principles, notably s 5B, 5G, s 5H and s 5I.
133. The plaintiff relies on the optimistic advice given by Mr Mooney on 18 October 2003. Notwithstanding that Mr Mooney had given optimistic advice as to the prospects of such an action succeeding, and had never formally changed that view, questions relating to the risk of the occupier’s case failing, must be taken into account in an assessment in these proceedings. That consideration, undertaken now, in the context of these proceedings, is with the benefit of a greater level of detail and context than the circumstances in which Mr Mooney advised on 18 October 2003.
134. In my view, discounting factors must be brought into account as an adjustment to the notional damages award. My consideration of matters calling for adjustment of a damages assessment, is set out in my analysis of the fourth set of issues.
Scope, content and alleged breach of the employer’s duty of care
135. In my view the analysis of the liability position of the employer towards the plaintiff is well settled and obvious, and it does not require as detailed an evaluation as the liability position of the employer : Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13].
136. In my view, there was a high probability that if sued, or for the purposes of a consideration of s 151Z(2) of the WC Act, the plaintiff’s employer would have been found to have been negligent as a result of the operation of the following arguments, either individually or in combination :
(a) The absence of specific instructions to the plaintiff to avoid using the stairs in wet conditions;
(c) Failing to take steps to intercede with the occupier to secure the provision of overhead lighting on the stairs and the scheduling of basic periodic clearing and cleaning of the stairs to reduce the risk of injuries to its security guard employees on the site;(b) Failing to devise a safe route for the plaintiff to traverse the site for the purpose of security patrols;
137. In my view, at a notional trial in 2006, even if the employer were not a party to the proceedings, for the purposes of s 151Z(2) of the WC Act, I find it would have been very likely to be more probable than not that the plaintiff’s employer would have been found to have been notionally responsible for the plaintiff’s injury, and to a substantial degree.
Apportionment between occupier and employer
138. In weighing the respective culpabilities of the occupier and the employer, I consider that a just and equitable apportionment of responsibility would have required the employer to have borne the greater share of such responsibility. I take this view because the employer retained the requisite degree of control over the plaintiff’s work routines and activities. In contrast, the occupier merely provided access to the premises which were known to be a demolition site with restricted access and which incorporated inherent hazards requiring special consideration in devising a safe system for implementing security patrols, this being a non-delegable duty of care : Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 688.
139. In these circumstances I consider that for the purposes of s 151Z(2) of the WC Act, a just and equitable apportionment of responsibility between the employer and the occupier would have been in the ratio of 65 per cent allocated to the employer and 35 per cent allocated to the occupier.
Causation of harm
140. In my view, on a conventional common law analysis, there would have been no relevant or significant obstacle to the plaintiff in establishing factual causation, namely, that his injury was a harm caused by negligence on the part of both his employer and also as a result of negligence on the part of the occupier.
141. In the barred proceedings, to establish the occupier’s liability for the harm suffered, the plaintiff would have had to satisfy the requirements of ss 5D and 5E of the CL Act. In this regard, I consider that the plaintiff would have had no difficulty establishing that there were no exceptional circumstances, that factual causation had been satisfied and that it was just and appropriate that the scope for liability for the contended harm should extend to the circumstances in which the plaintiff came to be injured : s 5D of the CL Act
Alleged contributory negligence on plaintiff’s part
142. The defendant in these proceedings argued that there was considerable scope in the barred proceedings for a substantial finding of contributory negligence against the plaintiff. In response the plaintiff argued that there should be no such finding. The defendant in these proceedings argued that the plaintiff failed to take reasonable care for his own safety because he used the stairs knowing there was no lighting, and without holding onto the wall as he was descending down the stairs. The defendant also argued for a contributory negligence finding because the plaintiff used the torch on the stairs ahead of him and did not shine the torch on the stairs on which he was immediately descending. The defendant argued for a finding of contributory negligence of the order of 20 – 25 per cent.
143. I do not consider that the contended contributory negligence has been made out. The plaintiff was not running or bounding down the stairs. He was proceeding cautiously in the course of his employment and he was using his own flashlight. He was complying with his employer’s direction to patrol the premises. The argued failure to point the flashlight at the step on which he was immediately descending would, at best, amount to a casual act of negligence on his part, but I do not consider it should be seen as contributory negligence. The plaintiff did what was reasonable in the circumstances to enable him to see ahead in the darkness. In my view this should not be characterised as contributory negligence. There is no evidence that the argued failure of the plaintiff to hold onto the wall as he descended the stairs would have prevented the fall in question. I reject the contributory negligence argument.
Second set of issues – Matters arising from the retainer of the defendant
144. The second set of issues concerns the terms of the retainer of the defendant.
Scope, content and breach of defendant’s duty of care arising from the retainer to act
145. On behalf of the defendant, at the commencement of the trial, it was conceded that there was a relevant breach of the duty of care owed to the plaintiff by his solicitors in the course of advising and representing him for the assessment and prosecution of his legal rights to seek compensation for damages for personal injury.
146. The defendant’s concessions on breaches of duty of care were made in paragraph 11 of the Amended Defence filed in court on 6 October 2009 and were in the following terms:
(a) No common law proceedings for damages were commenced on the plaintiff’s behalf;
(b) There was a failure to adequately advise the plaintiff in relation to the limitation period for commencing proceedings against the owner and occupier of the premises, and a concomitant failure to advise the plaintiff on the effect of the limitation period;
(d) The foregoing concessions constituted a breach of the duties owed to the plaintiff and a breach of the retainer.(c) There was a failure to adequately explain to the plaintiff the competing merits and disadvantages of workers’ compensation proceedings as compared to common law proceedings;
147. Notwithstanding those concessions, the defendant maintained that these breaches did not cause or contribute to any loss or damage that could sound in assessable damages in these proceedings.
Third set of issues – Probable course of events and quantum absent the breaches
148. The third set of issues concerns the determination of the probable course of events that would have ensued if the breaches of duty had not occurred. This is a precursor to the determination of the causation of any claimed losses in these proceedings.
149. Differing causation considerations apply to the losses falling to be assessed in the barred claim and the causation considerations for assessing any loss in these proceedings.
150. In the barred proceedings, it is necessary to identify the likely terms of a probable judgment assessed according to conventional principles concerning the assessment of damages under the CL Act. In these proceedings, the assessment of the barred damages forms the foundation or starting point for the assessment of damages, subject to matters calling for adjustment, discount and offset.
151. The first stage of the causation analysis must proceed according to the following steps :
(a) Determining the probable course the plaintiff would have taken concerning the institution of proceedings if he had been properly advised in respect of :
(ii) the potential for him to claim damages from the occupier;(i) the potential for him to claim damages from his employer;
(c) Determining the terms of a probable damages award in the barred proceedings;(b) Determining the probable timing of the notional trial;
152. The consideration of the required adjustments to the notional award by the application of discounts and offsets is the subject of consideration of the fourth set of issues.
Plaintiff’s probable course if he had been properly advised
Potential claim against employer
153. I have concluded that if the plaintiff was properly advised in relation to the potential for him to make a claim for modified common law damages against his employer, it was unlikely that the plaintiff would have pursued such a course.
154. My reason for this conclusion is that the terms of the gathered medical evidence indicated there was an insufficient justification to commence such proceedings. In my view the expert opinions on the plaintiff’s level of impairment were of an insufficient level to enable an authoritative and prevailing assessment of 15 per cent impairment so as to satisfy the threshold required to be met for such a claim to proceed : s 151H of the WC Act. I have not seen any AMS certification that the plaintiff would satisfy the requirement of showing a 15 per cent impairment. The plaintiff makes no complaint as to the fact that such proceedings were not commenced by the defendant on his behalf.
Potential claim against the occupier
155. I have concluded that if he had been properly advised, the plaintiff would most probably have opted to commence proceedings against the Commonwealth claiming damages for breach of the duty of care owed to him by the occupier of the premises. I have reached this conclusion notwithstanding that the provision of proper advice would have entailed explaining to the plaintiff the risks of such litigation, along the lines set out in the opinions of Mr O’Halloran and Mr King SC.
156. My reasoning for these conclusions is that I have assessed the plaintiff’s subjective attitude to compensation to be more interested in lump sum compensation rather than the more piecemeal receipt of fortnightly workers’ compensation payments. The plaintiff and his economic history impressed me as having a business or entrepreneurial orientation. In my view this would have driven him to seek a lump sum for investment as part of a need on his part for financial independence and autonomy : s 5D(3)(a) of the CL Act.
157. Accordingly, based upon these premises, I find that the defendants, or any other solicitors to whom the plaintiff may have been referred and having skill and experience in prosecuting such claims, would have instituted proceedings against the occupier within a relatively short time after being instructed, and would have progressed the litigation forward in a timely manner so as to seek an early trial date, consistent with prevailing standards of prudent practice. I also consider this would have occurred because it would have been apparent that the barred claim was capable of being certified as to merit.
Probable timing of the notional trial
158. The parties have agreed that the date for the commencement of the notional trial would have been 1 February 2006. In my view, ordinary circumstances prevailing, a judgment would have been expected to have been entered by 1 May 2006.
Probable terms of the notional damages award
159. As a preliminary analysis, as part of the approach to making an assessment of quantum for the notional barred proceedings, and also for comparison purposes, I have tabulated the respective notional quantum submissions that have been advanced by the parties. That tabulation, in which the claims for past and future out-of-pocket expenses have been neutralised as they are in reality book entries in the assessment exercise, is as follows :
Head of Damage claimed by plaintiff
Submissions(a) Non-economic loss (b) Past loss of earnings (c) Fox v Wood (d) Future loss of earning capacity (e) Past loss of superannuation (f) Future loss of superannuation (g) Past domestic assistance (h) Future domestic assistance (i) Future out-of-pocket expenses (j) Past out-of-pocket expenses Totals
160. The utility of this table is twofold. Firstly, it not only identifies the general ambit and the detail of the plaintiff’s quantum claim, if accepted, but it also confirms the view I have reached concerning the notional monetary value of the plaintiff’s claim, having arrived at that view after reviewing the evidence in the proceedings, and following a consideration of the submissions of the parties on the issues of both liability and damages. In my view, the plaintiff’s submissions acceptably identify the likely quantum of the barred proceedings.
161. I believe that the following considerations justify the view that the figures submitted on behalf of the plaintiff are correct:
(a) Non-economic loss of 40 per cent of a most extreme case is justified on the physical and psychiatric evidence. In my view the defendant’s submission of 30 per cent is inadequate to account for the plaintiff’s continuing physical problems to do with his neck, shoulders and back, as well as his psychological problems in relation to an assessment in 2006. All aspects of the plaintiff’s life have been adversely affected by his injury. The maximum amount for non-economic loss under s 16 of the CL Act was $416,000. An assessment of 40 per cent is $166,400.
(b) Past loss of earnings have in my view been reasonably assessed at $750 per week net. In my view the defendant’s submissions arguing for a lesser weekly amount of $400 are flawed because they rely upon a rate of remuneration that was clearly an underpayment, evidenced by the industrial proceedings taken against the employer. The medical evidence certified the plaintiff as being unfit for work as at the date of the notional trial. At $750 per week net over 2.67 years, I consider this loss to be reasonably assessed at $104,170.
(c) Fox v Wood has been conceded in the amount of $12,000.
(d) Future loss of earning capacity is in my view reasonably assessed at $750 per week over the plaintiff’s remaining life expectancy until retirement at age 65. The plaintiff is clearly unfit for work as the medical evidence confirms. I consider the rate of $750 per week net to be the appropriate measure of the plaintiff’s loss of future earning capacity.
(e) Past superannuation losses are assessed at 11 per cent of past loss of earnings of $104,170, or $11,471.
(f) Future superannuation losses are assessed at 11 per cent of future loss of earning capacity of $437,070, or $48,077.
(g) Past domestic assistance is in my view reasonably assessed at $20 per hour for an average of 11 hours per week. I accept the evidence of the plaintiff and his sister as to the additional time taken up by Miss Young with domestic tasks due to the plaintiff’s condition, and that were not required beforehand. Over the past 2.67 years this totals $29,156.
(i) and;(h) Future domestic assistance is in my view reasonably assessed at $210 per week over the plaintiff’s remaining life expectancy of 41 years (x 924.8). In this regard I accept the evidence of the plaintiff and his sister. The projection reveals the amount of $194,200 without the need for discount on account of vicissitudes.
(j) Past and Future out-of-pocket expenses have been ignored in the assessment because they are in effect book entries that have been allowed for in the offsets concerning workers’ compensation entitlements.
162. I have therefore determined that a notional award of $1,003,054 in the barred proceedings should form the basis for damages in these proceedings as I consider this amount represents what might have reasonably been notionally awarded to the plaintiff. That said, adjustments and offsets are required to be applied to that sum for the purpose of assessing damages in these proceedings.
Fourth set of issues – Adjustments to notional assessment and causation
163. A consideration of the fourth issue requires the adjustment of the notional damages in the barred proceedings.
164. Having identified the likely liability and quantum findings, and having determined the plaintiff’s likely quantum assessment of $1,003,054, it is necessary to apply the relevant adjustment factors. Those factors have been identified by the defendant as requiring accommodation in the adjustment process and have been set out at paragraph 18(c)(i)-(vi) of this judgment. In the paragraphs that follow I will analyse the respective submissions and I will apply the relevant factors.
Assessment of employer’s responsibility – s 151Z(2) WC Act
165. The first adjustment that is required to be made to the notional quantum assessment is that which results from the application of s 151Z(2) of the WC Act to reflect the likely assessment of the apportioned degree of negligence of the employer.
166. In this regard, the opinions of Mr King SC and Mr O’Halloran concerning the notional liability of the employer were within the same range, namely 50-70 per cent, but at differing ends of that range. The views of the experts as to the range coincide with my own view as to the appropriate range. In my view, the employer was likely to have borne a substantially greater share of responsibility for the plaintiff’s injury. Mr reasoning for that view is as follows :
(a) The employer knew the site was in a state of un-maintained disuse awaiting the completion of demolition as a precursor to redevelopment. In this context, the employer had a non-delegable duty of care to devise and implement a safe system of work for the plaintiff. It took on the task of providing security services, and in doing so, accepted the site in the condition in which it had been left by the occupier. This required a safety and risk assessment;
(b) It was fundamentally unreasonable for the employer to require the plaintiff to use the unlit stairs as a means of access in darkness when those stairs were likely to be rendered slippery by accumulated moisture on plant matter that would not be cleaned away because there was no inspection and cleaning system in place;
(c) The employer knew from the periodic presence of Mr Tippett on the site, and from the logbook Exhibit “M” that there were safety issues on site that were of longstanding concern and which had not been addressed or remedied, for example, the non-functioning light over the stairs in question;
(e) The employer’s attitude to safety appeared to involve a lack of concern over safety issues, evidenced by the plaintiff having to take his own safety precautions that would normally have been undertaken by the employer. In this regard, he provided his own flashlight torch for his own safety during the patrols he was required to carry out in darkness, his requests for the provision of this item of equipment having been ignored by his employer.(d) The employer chose to continue to provide security guard services on the site knowing there were un-remedied site safety issues;
167. In taking these matters into account, I consider that the employer’s responsibility was likely to be assessed in a substantial percentage at the upper end of the range. In my view the appropriate percentage adjustment to reflect the employer’s likely responsibility for the plaintiff’s injury is 65 per cent.
168. In applying this percentage adjustment to the notional assessment of $1,003,054, this reveals a downward adjustment by $651,985.10. After applying this deduction the residual balance is then revealed to be $351,068.90.
Workers’ compensation payments to the notional trial date
169. The defendant has argued, correctly in my view, that it is necessary to make a second adjustment to allow for a further offset adjustment for the combined value of weekly payments of workers’ compensation payments and of medical expenses to the date of the notional trial. These amounts were identified in submissions as totalling $70,000 : MFI “2”.
170. After applying this second adjustment to the residual balance of $351,068.90, this reveals a revised residual balance of $281,068.90.
Agreed unrecoverable solicitor/client costs of litigating the barred proceedings
171. The third required adjustment is to allow an offset for the agreed amount of probable unrecoverable solicitor/client costs associated with the notional trial. Those costs are agreed in the amount of $30,000. After applying an offset of $30,000 to the residual balance of $281,068.90, this reveals a revised residual balance of $251,068.90.
The risk that the barred proceedings could have failed
172. The fourth required adjustment is needed to reflect the prospects of the proceedings being unsuccessful against the Commonwealth, as occupier of the premises.
173. Included in this category of adjustment I consider that several other factors also need to be taken into account. In this regard, one cannot ignore the possibility that there might have been a finding of contributory negligence made against the plaintiff even though the experts have correctly assessed that risk to be small. Further, one cannot ignore the operation of other factors that could have affected the result in terms of liability as well as quantum, such factors generally being characterised as comprising the “accidents of litigation”.
174. Such additional factors include matters such as evidence not coming up to proof, witnesses giving a poor or unimpressive rendition of their evidence, and combinations of like factors peculiar to the case that can and do arise in the course of uncertain litigation involving risk. The unexpected twists and turns of litigation, at every level, can never be predicted with accuracy, including the basis and effect of orders for costs, specially where offers of compromise are concerned. Such factors are well known considerations in personal injury litigation. The operation of such factors can and frequently do compel settlement in cases for amounts less than the estimated value for the sake of certainty, and to avoid taking the risk of losing, either totally, or on significant issues. The plaintiff’s barred case would not have been immune from the operation of such factors.
175. The application of general principle requires that there be an adjustment to represent a discount on account of these factors in order to pay due regard to the vagaries and vicissitudes of litigation. All these factors involve risk and chance that are required to be accounted for in the form of a discount to reflect the chance that the litigation may not have proceeded as planned : Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351.
176. In determining the appropriate percentage adjustment to reflect these matters I have had regard to the seasoned expert opinions of Mr O’Halloran and Mr King SC, as well as drawing upon my own experience of such factors when practicing in this area not so long ago.
177. It is of relevance to note that the experts have, by the terms of their opinions, identified the reality that in litigation experience shows that there are differing approaches to the assessment and acceptance of risk. Similarly, there are differing degrees of caution, pragmatism and practicality brought to bear by litigants in absorbing and accommodating such matters.
178. On behalf of the defendant in these proceedings, Mr Dicker has submitted that a discount of 30 per cent ought to be applied to the notional assessment on account of these factors. On behalf of the plaintiff, Mr Lidden SC submitted that a discount of no more than 20 per cent would be appropriate.
179. In assessing the appropriate percentage adjustment I have considered the following matters:
(b) There was a good chance the plaintiff could have lost his case, even with a high standard of preparation and with credible evidence because:(a) Although each case is determined on its merits, slip and fall matters have a notoriously high failure rate which in turn influences the settlement rate, indicating there was a high chance the plaintiff would have settled for a compromised sum rather than taking the real risk of losing his case;
(i) the obvious and inherent risk provisions of ss 5G, 5H and 5I of the CL Act as well as the more demanding requirements of s 5B, stood as potential obstacles to success;
(iii) one should never underestimate the facility for skilled and well prepared opposing counsel to wreak havoc upon, and undermine, a well prepared case, in combination with all the well known risks of litigation;(ii) the plaintiff had been on the site for over 3 years patrolling the same area without reported incidents or accident;
(c) Although the risk of contributory negligence was assessed as being small, the availability of that argument in the notional case nevertheless requires that the risk be accounted for in this assessment;
(d) I accept the assessment made by Mr King SC to the effect that the case the plaintiff would have sought to make at the notional trial “ could very readily fail ”;
(f) On the other hand, it must be assumed that at a notional trial, he would have been represented by experienced and competent lawyers, well prepared for a contest on all issues, and fortune may have favoured the brave, as sometimes occurs. In this regard, a decision to proceed to judgment may have resulted in a successful outcome for the plaintiff.(e) The plaintiff may not have been able to maintain the psychological stamina of an initially courageous approach to the risk of failure as the case unfolded, on account of the matters set out in the report of Dr Pilsky. On advice, he may well have retreated to a more conservative settlement position to avoid the risk of losing;
180. In taking these matters into account I consider that the appropriate discount to be applied is 20 per cent, which requires a deduction of $50,213.78 from the residual balance of $251,068.90. This reveals a further revised residual balance of $200,855.12.
Projected value of future payments of workers’ compensation entitlements
181. The third required adjustment is to discount the residual balance of $200,855.12 by an amount of $150,000 to reflect the value of the plaintiff’s future workers’ compensation benefits as at the notional trial date, as was identified by Mr O’Halloran. I accept his calculation in that regard as it is reasonable and it has been made in accordance with accepted authority : Tipper.
182. The result of this adjustment reveals a further revised residual balance in the amount of $50,855.12.
Repayment of lump sum payments for permanent impairment
183. The fifth and final adjustment reflects the fact that on a successful completion of the barred litigation, the plaintiff would have to repay the amounts he had received as lump sums for impairment pursuant to ss 66 and 67 of the WC Act. These amounts have been identified as totalling $2500. Applying an adjustment for this amount, the final residual balance of the notional assessment, which represents the assessed damages in these proceedings, is revealed to be $48,355.12.
184. The foregoing analysis demonstrates that the plaintiff has sustained a loss caused by the negligence of the defendant: ss 5D and 5E of the CL Act. That loss would not have arisen without the claimed negligence.
Interest adjustment
185. The plaintiff is entitled to interest on the amount of $48,355.12 : s 100 of the Civil Procedure Act 2005. The Appendix to these reasons sets out the interest calculation on $48,355.12 as post-judgment interest in the barred claim assessed as pre-judgment interest in these proceedings in the amount of $18,989.63 : Schedule 5 of the Uniform Civil Procedure Rules 2005 and Practice Note DC (Civil) 15.
186. The plaintiff is therefore entitled to a verdict and judgment in the combined total of these two amounts in the sum of $67,344.75.
F. DISPOSITION & ORDERS
Disposition
187. The plaintiff has succeeded in making out his claim and is therefore entitled to have his costs paid by the defendant on the ordinary basis, unless shown to be otherwise entitled.
Orders
188. I make the following orders:
(a) Verdict and judgment for the plaintiff in the sum of $67,344.75 including interest;
(b) The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
(d) Liberty to apply on 7 days notice if further orders are required.(c) The exhibits may be returned;
APPENDIX
Interest Calculations on $48,355.12
Total
0