Bamber v Hartman Pacific Pty Ltd; Bamber v Hartman Pacific Pty Ltd

Supreme Court of NSW|2017-05-01|Before: Schmidt J, Mr J

Judgment

In January 2012 Mr Bamber fell some six metres to the ground, as he was descending a ladder which he and Mrs Bamber claim collapsed on its first use, after it was purchased in November 2011. Claims brought in negligence against Hartman Pacific Pty Ltd (the manufacturer and importer of the ladder) were not pursued, but both Mr and Mrs Bamber sought damages under the Australian Consumer Law of the Competition and Consumer Act 2010 (Cth) for the physical and psychological injuries they claimed they had suffered.
Despite the parties' experts agreeing that the ladder had two faults; Mr Bamber's fall being witnessed by one of Mrs Bamber's employees, Ms Ball; and there being no issue either that Mr Bamber injured his ankle during the fall, which required repeated surgery, or that Mrs Bamber does suffer a psychological condition, their claims were defended.
In issue was whether the ladder collapsed as the result of poor manufacture, the case which Mr and Mrs Bamber finally pressed. The consequences of the ankle injury which Mr Bamber suffered was also in issue, as was the nature, extent and cause of the mild psychological condition which Mrs Bamber suffers, an adjustment disorder with mixed depression and anxious mood, even though the common view of the experts (Drs Gertler and Smith) was that Mrs Bamber suffered that condition consequent on witnessing Mr Bamber fall.
For reasons which I will explain, I am satisfied that Mr and Mrs Bamber have not proven that Mr Bamber's fall was the result of either design faults in the ladder, or defective manufacture. Hartman's liability not having been established, it is not necessary to determine how it was that the ladder came to have the faults the experts identified.

Issues

There was no issue between the parties that what persons who purchase ladders of the type involved in Mr Bamber's fall are entitled to expect, is a locking mechanism, which will lock automatically under gravity, as required by the applicable Australian Standard, to which the ladder was manufactured by Hartman.
What was finally in issue included: 1. Mr and Mrs Bamber's credibility; 2. Whether the two faults which the experts identified had occurred during manufacture; 3. How Mr Bamber came to fall; 4. The consequences of Mr Bamber's ankle injury; 5. The nature and cause of Mrs Bamber's injury; 6. What loss and damages Mr and Mrs Bamber each suffered; and 7. Contributory negligence.

Mr and Mrs Bamber's credibility

In resolving these issues it is necessary to bear in mind what became common ground, contrary to Mr Bamber's initial evidence, namely, that at the time of his fall in January 2012, he was not working at a business known as "Planet Max". Both Mr and Mrs Bamber were then working at "Oxygen", the women-only gym business which Mrs Bamber owned and operated at Wagga Wagga, where she and Mr Bamber lived. Oxygen had commenced trading in 2009. Mrs Bamber closed that business as the result of vandalism, in early 2013, after which she claimed and was refused an insurance payment, relating to the closure of the business.
It emerged that it was prior to working at Oxygen, from 2005 to 2010, that Mr Bamber had worked at Planet Max. That was a separate gym equipment and nutrition business, which he had carried on in partnership with another man. It had also ceased to trade as the result of vandalism, for which Mr Bamber had claimed and received an insurance payment, prior to his fall.
The evidence also established that neither Planet Max nor Oxygen had ever traded profitably, contrary to Mrs Bamber's evidentiary statement, where she said that it was the need to employ additional staff, after Mr Bamber's fall, which had led to Oxygen becoming unprofitable. That was not established on the evidence.
It was in December 2012 that Mrs Bamber was treated for mental health problems, which she claimed were the result of her having seen Mr Bamber fall in the preceding January.
It was in June 2013 that Mrs Bamber's insurance claim was refused, for reasons which included her failure to disclose her past history of insurance claims, which in 2011 and 2012 totalled some $144,839, as well as Mr Bamber's involvement in her business and his claims history. That history included the 2010 claim in relation to Planet Max, for which Mr Bamber had received a $180,000 insurance payment, as well as a second claim which had been settled for $12,000.
It was only after this that Mr Bamber sought and obtained other employment, initially in Australia and later in the United Kingdom, where he and Mrs Bamber now live.
The attack on Mr and Mrs Bamber's credit was resisted by the submission that their past insurance claims evidenced that they had been victims of an unfortunate series of events, which had resulted in police reports and insurance claims. It was argued that Mrs Bamber's evidence about Oxygen did not go to her or Mr Bamber's credit, Ms Ball's evidence having established that the business had been significant and viable. Nor did the later termination of the employment Mr Bamber obtained in Tasmania go to his credit, given that his employer had paid out the balance of his contract.
While there were acknowledged problems with Mr Bamber's evidence, flowing from a number of acknowledged inaccuracies in his evidentiary statement, it was submitted for the plaintiffs that: "… the sins of the legal advisors should not be visited upon the Plaintiff. It is difficult to envisage a process that if the documentation had been reviewed by the legal advisors that these discrepancies might ordinarily be expected to be raised with the Plaintiff. The Plaintiff's treatment has extended over a period since 2012 and there have been a large number of events occurring in the Plaintiff's life and it would be unfair to be unduly critical of him in respect of these inaccuracies."
In the result it was argued that Mr Bamber would be accepted as a witness of credit, given the ready concessions which he made, when the correct history was put to him.
I am satisfied that neither Mr nor Mrs Bamber can be accepted as either credible or reliable witnesses. This conclusion did not depend on their insurance claims history, or the circumstances in which Mr Bamber's employment in Tasmania came to be terminated.
In Mrs Bamber's case in cross-examination she claimed to have no memory of relevant dates, events, documents and what was recorded in medical records, about what she had told doctors from time to time about her health. Mrs Bamber also professed not to understand various questions put to her. Some of her answers to other questions were unresponsive, others were argumentative.
The result was that Mrs Bamber's evidence became implausible in many respects. In others it became apparent that her evidence was either untruthful, or that she had repeatedly lied in the past, when giving histories of her symptoms and responses to treatments she was prescribed, to various medical practitioners, including the experts who examined her.
Documents in evidence reveal that in the past Mrs Bamber has repeatedly said that she had been taking medication she had been prescribed by doctors and counsellors for various diagnosed mental health conditions and that the medication had benefitted her.
In her oral evidence Mrs Bamber denied, however, ever having taken medication she had been prescribed for her mental health problems. She also disagreed with the symptoms she had described from time to time, as recorded in medical records and other documents. When trying to explain why in her evidentiary statement she said that before 2012 she had suffered no psychological difficulties (which was inconsistent with those records) Mrs Bamber said that she may have had issues before with feeling very low, but that this had been a natural reaction to certain things which were happening in her life.
It became apparent that Mrs Bamber appreciated the difficulty with the evidence she was giving about her medical history. She sought to deal with this in various ways, including by suggesting that she had no confidence in the GPs who had treated her. Her explanation of why, in those circumstances, she had continued to seek treatment for years from the same GP, was nonsensical. She said that it had not occurred to her, that she could see another doctor. Mrs Bamber also said that she had never felt that she could tell any doctor, that she would not and did not take her prescribed medication.
There were other problems. Mrs Bamber said, for example, even when shown the financial records of her business, Oxygen, that she did not remember that it had traded at a loss, as those records showed.
Mrs Bamber also claimed to remember nothing about making the insurance claim in 2013, after Oxygen was vandalised, its later refusal and the reason given by the insurance company for its refusal, namely, her failure to disclose Mr Bamber's involvement in the business and his similar claim history. Nor could she remember the fire at home in the shed in 2011, which damaged the shed and a van and the insurance claim made in respect of that fire, which was also refused.
The result was that I came to have very considerable reservations about Mrs Bamber's evidence. I have finally concluded that Mrs Bamber's evidence provides no reliable basis on which any conclusions favourable to her claim as to the cause and seriousness of her psychological condition can be reached. Further, unless her evidence is corroborated by someone other than Mr Bamber, it cannot be accepted as a basis for findings favourable to the case which either she or Mr Bamber advanced.
I have reached similar conclusions in relation to Mr Bamber's evidence, which I am satisfied was not only inaccurate in some respects, but also exaggerated in others.
Like Mrs Bamber, Mr Bamber disagreed with the record of histories he had given of his symptoms and recovery after surgery, as evidenced in various medical records.
Both Mr and Mrs Bamber's evidence was that after his fall, Mr Bamber was unable to return to all of his prior work. Mr Bamber's evidence was that he could also not manage other paid employment of the kind he had undertaken before he began to operate Planet Max, with the result that a decision was made to sell Oxygen. A buyer was found, but in January 2013 the sale fell through, on Mr and Mrs Bamber's case, after Oxygen was vandalised.
In cross-examination, Mr Bamber did make various concessions in relation to working at Oxygen, at the time of the fall, rather than Planet Max and what the financial records in evidence established, when his evidence was shown to be inconsistent with those records, which showed that both Oxygen and Planet Max had been unprofitable. Calls for tax records which would have shed further light on his evidence were not answered, even after enquiries were made of the ATO.
Mr Bamber also agreed that at various times when he claimed Mrs Bamber had been caring for him, she was, in fact, overseas.
From other of Mr Bamber's answers, it became apparent, nevertheless, that he was seeking to paint a picture as to the consequences of the fall, which was not entirely consistent with what they had in fact been.
Despite his concessions, Mr Bamber's evidence as to the nature and extent of his involvement with Oxygen, both before and after his fall, became not only contradictory, but it proved in part to be inconsistent with that given by Mrs Bamber and Ms Ball. On such matters I am satisfied that Ms Ball's evidence must be preferred.
Other aspects of Mr Bamber's evidence was implausible, particularly his evidence as to the physical consequences of his ankle injury, which he claimed were considerably more severe than contemporaneous records suggested and precluded him from pursuing other work, even when Oxygen was closed.
Mr Bamber's evidence was that for a considerable time, the result of his ankle injury was that he was unable to pursue management work of the kind which he had not only successfully performed before he became involved in Planet Max, which he did later pursue in Australia and which he now performs in the UK. When that evidence is considered in light of Mr Bamber's evidence as to what such work actually involves and what contemporaneous medical records about the histories which he gave at various times, as to the state of his recovery, it became apparent that his evidence involved considerable exaggeration.
In the result I came to the conclusion that Mr Bamber also did not give his evidence consistently with the requirements of his oath. I am also satisfied that unless corroborated by someone other than Mrs Bamber, his evidence also does not provide a sound basis for conclusions favourable to the cases which they each advanced.

The fall

At the time of Mr Bamber's fall, Ms Ball was employed as the manager of the Oxygen gym. She was at Mr and Mrs Bamber's home to have lunch with them. Mrs Bamber wanted Mr Bamber to repair something on the roof. Ms Ball had a background in health and safety.
The evidence of Mr Bamber and Ms Ball as to how Mr Bamber came to fall was to similar effect, namely, that they had unwrapped the ladder, which was still packaged and after checking that the latching mechanism was operational, while it was lying on the ground, they extended the ladder and Mr Bamber climbed to the roof of the house, while Ms Ball stood on the ground holding the ladder. Their evidence was also that the ladder collapsed as he was descending and that it did not fall to the side.
In her cross-examination it emerged that Ms Ball had recently been subpoenaed to give evidence and that she had then discussed with Mr Bamber what had happened on the day that he fell. She denied, however, that her recollection of what had happened had been affected by their discussion. Given the conclusions which I have reached about Mr Bamber, her view, while no doubt genuinely held, must be approached with some caution.
The evidence of Ms Ball and Mr Bamber was that she had helped Mr Bamber to check that the locking mechanism on the ladder was working, while it was laid on the ground, before they then placed the ladder at an angle against the house, on a firm grass surface, which provided a good base. They then extended the ladder to the required height.
Mrs Bamber was nearby, on the other side of a four foot hedge, supervising the dogs and glancing at what Mr Bamber and Ms Ball were doing, from time to time.
Ms Ball stood at the bottom of the ladder, to make sure that it did not move. She and Mr Bamber then checked the locking mechanism again, before Mr Bamber climbed up the ladder.
Mr Bamber's evidence was that it felt sturdy and safe as he claimed up to the roof. It was when he was descending, shifting his weight from one rung to another, that Ms Ball shouted out that the ladder was collapsing, which he then felt. He let go of the ladder. It fell straight down, collapsing in on itself, the locking mechanism not catching the ladder as it was designed to do.
Mr Bamber's evidence was that he managed to turn his body around as he fell, so that he was facing away from the house. His right hip stuck the ladder as he fell, pushing him around, so that he was horizontal to the ladder. His right foot then struck the ladder, resulting in it becoming v-shaped. His Navy experience had taught him to collapse and roll when he contacted the ground. That was what he did, after falling some six metres, landing on firm dry grass.
Initially Mr Bamber noticed numbness in his right hip and then soreness in his right knee and ankle. His ankle was in fact fractured. Ms Ball told Mr Bamber not to get straight up and then she and Mrs Bamber helped him to his feet.
Mr Bamber could not put his weight on his right leg and realised that his ankle was broken. They did not call an ambulance, but Ms Ball drove him to Wagga Wagga Base Hospital, where he was admitted. Mrs Bamber did not accompany them because, she claimed, she was too upset. She had seen him fall from where she was standing nearby, controlling their dogs.
Mr Bamber had surgery the following day on his right foot and ankle. He was discharged the next day. He also had severe bruising on the entire right side of his body. Some five to six weeks later Mr Bamber was also diagnosed to have suffered a fracture to his right femur. He had further surgery later that year and again in 2013.

Was the latching mechanism locked?

In his evidence Mr Rundle, the managing director of the Hartman Group, described how Hartman manufactured ladders in its Chinese factory. In evidence is a video of the manufacturing process, which Mr Rundle also explained. On his evidence there was finally no issue that the ladder was designed to meet the requirements of the applicable Australian Standards.
Mr Bamber described the latching mechanism which he tested before he climbed the ladder to have been tight, he thought because it was new. Mr Bamber contacted Hartman after his fall. It sent Mr Roberts to inspect the ladder. Mr Roberts thought that the mechanism was "tighter than usual".
The experts' later examination established that the hauling rope by which the mechanism was operated, was too short. The result was that the mechanism could not drop automatically into the locked position, as it was designed to do and as was demonstrated in court by Mr Rundle on a similar ladder, which is in evidence.
In their joint report the experts thus agreed that this ladder was faulty; that the mechanism was partly disengaged when the ladder was extended; that this was not obvious to someone standing on the ground, looking up, but it was readily visible from the side; that the malfunction was due to excessive tension on a closed loop of the rope, which is a fixed part of the ladder, which has no provision for adjustment; and that the hauling rope was too short. The result was that the locking mechanism did not operate freely and had a propensity to stay in the disengaged, or partially disengaged position.
The experts concluded that the faulty mechanism contributed to the ladder collapsing, by not freely and automatically dropping back into the fully engaged configuration, on passing each lower rung, as the ladder was raised. The result was that the partly disengaged clutch was able to completely disengage and the upper section of the ladder to fall. The experts thus agreed that the locking mechanism on this ladder was defective and did not comply with the applicable Standards.
The experts also agreed that four bolts that fix two latch hinge brackets to the sides of the ladder appeared never to have been fully tightened.
The experts had tested the rope and locking mechanism when the ladder was both on the ground and standing. In their concurrent evidence they disagreed as to what testing it on the ground could have demonstrated. They agreed, however, that if the two faults they had identified were present at the time that the ladder was bought, the locking mechanism would have been resistant to going fully in.
The experts also agreed that while the mechanism could have been forced, that it was not freely able to go fully in and could not freely fall into place and that when the ladder was run up and down, it did not drop properly into place. They also agreed, however, that the mechanism could be locked and that this required a specific movement on the rope, in order to release the tension, which involved deliberate effort.
This was consistent with the evidence of Mr Bamber that he and Ms Ball had tested the ladder before he climbed it and that the locking mechanism was then stiff, but functioning, as well as what Mr Roberts had found, when he tested it.
The experts also agreed that if the mechanism had been fully engaged, when the ladder was extended, it could not possibly have popped out when a person was higher up the ladder, as Mr Bamber was when he fell. That was because of the weight then applying to the locking mechanism. In that situation, the top section of the ladder could not go upwards, which was necessary to permit the mechanism to rotate out of the fully engaged position.
That was contrary to the evidence of Mr Bamber and Ms Ball, that they had checked that the mechanism was locked before Mr Bamber climbed the extended ladder and with Ms Ball's evidence, as to what she observed when the ladder collapsed underneath Mr Bamber, as he was descending.
In the statement which Ms Ball made to Mr Roberts in January 2012, she said that it was when Mr Bamber took his first step down that she saw the locking mechanism give way, with the result that the ladder slipped down and he fell, landing on the second and third rungs from the bottom.
In her oral evidence, however, Ms Ball said that she had noticed that the locking mechanism came up outwards, or forward or up, in an upward movement. It then slipped straight down. Mr Bamber had tried to hold on, facing the ladder as he came down, but he hit the side of his body, which twisted him more, so that he hit the bottom two rungs of the ladder with his foot and then fell to the side, onto the ground. Despite this, the ladder remained up against the wall and did not move sideways. After Mr Bamber fell Ms Ball could then see that the rope used to pull the locking mechanism up looked frayed and that the two bottom rungs were bent.
In cross-examination, Ms Ball said that when she and Mr Bamber had tested the ladder when it was lying flat on the ground, the mechanism was completely locked and when it was extended at the side of the house, she also saw it completely locked in and that Mr Bamber had also checked it and said that it was locked in. She also denied that the fall had occurred when the ladder tipped sidewards.
The difficulty with this aspect of Ms Ball's evidence was that on the expert evidence, what she described having observed was not physically possible. With manipulation of the rope, this ladder's locking mechanism could be fully locked, despite its shortness. If it was fully locked when it was extended, before Mr Bamber climbed the ladder, it was not physically possible for this mechanism to have popped out, as Mr Bamber descended, while he was still standing on the ladder above the locking mechanism, as Ms Ball said he was, when the ladder collapsed and he fell.
It follows that either Ms Ball was mistaken both as to what she and Mr Bamber did that day to lock the mechanism, before Mr Bamber climbed the extended ladder and as to what she saw before Mr Bamber fell, or her evidence was untruthful. I have not come to the conclusion that Ms Ball was an untruthful witness.
Given the experts' evidence, it follows that Ms Ball must have been mistaken. The mechanism cannot have been locked, as she and Mr Bamber said it was, before he climbed the extended ladder. If it was locked, with Mr Bamber's weight above it, it was not physically possible for it to have popped out in the way that Ms Ball described.

Was the ladder defectively manufactured?

The evidence also does not permit the conclusion that the hauling rope on which the operation of the locking mechanism depended, came to be shorter than it was designed to be, as the result of its manufacture. I am thus not satisfied that Mr and Mrs Bamber have established that Hartman was liable for the consequences of the collapse of the ladder.
The unchallenged evidence of Mr Rundle was that Hartman has sold these ladders in Australia since 2005. Since then it has sold some 211,500 ladders in its extension range, of which this ladder was one. While Hartman has received warranty claims for transport damage since then, it has received no other complaints of ladder malfunction, including in relation to the latching mechanism.
Mr Rundle explained the manufacture of the ladder, in accordance with a system which can be seen in the video, as well as Hartman's testing processes, both at its Chinese factory and by an independent Australian NATA approved laboratory, both during design and manufacture. Mr Rundle also described Hartman's protocol for dealing with complaints. In cross-examination he said that it receives about five complaints a year, after people fall off ladders. The protocol involves access being gained to the ladder for inspection and if the issue is unclear, professional x-ray. Mr Bamber refused to permit such testing until the ladder had been examined by his expert.
Mr Rundle agreed in cross-examination that if a rope was cut too short, the mechanism could not be locked. His unchallenged evidence was, however, that these ladders are produced in batches of about 300. The ropes used in the manufacture of the ladders are cut, to the same length, in bundles of 30 to 50, on a bed using a friction cutter. There is no evidence that any other ladders which Hartman manufactured, had been assembled with ropes shorter than the designed length
Mr Rundle agreed that if Mr Bamber's evidence as to how he came to fall was accepted, there would have been a defect in the locking mechanism, which could have been a manufacturing issue, or transport damage. He also said that ladders could be damaged in a fall and but he accepted that in the case of an unused ladder in Hartman's warehouse, if the rope was tighter than normal, that would be a manufacturing defect.
Mr Rundle also agreed that if the mechanism, when raised, was in a half locked position, that when lowered it would not lock back in and that if that was not due to outside forces, that would be a defect in the ladder.
Mr Rundle also explained Hartman's quality assurance program during manufacture, which involves inspection of all parts of each ladder, including the locking mechanism and its rope and their operation. Checking rope length is a part of its normal quality control process. Thus, even if a piece of rope was cut shorter, with the result that the mechanism was tighter, that would be identified on assembly and even if missed then, this would be identified during quality control and the ladder would be removed from sale.
In cross-examination Mr Rundle explained that the locking mechanism locks with gravity and so the inspection is of the ladder includes its range of motion, to make sure that is free and easy. Once inspected, each ladder has a sticker with a date stamped attached to it. Another sticker which explains the function of the machine and warns the user to "make sure all the locking devices are fully functional" is also then applied.
A randomly selected ladder from each batch is also subjected to critical strength testing in a laboratory, as well as side sway and on extension ladders, a permanent set test. The makeup of the aluminium is also analysed.
On this unchallenged evidence it follows that in Hartman's manufacturing process, while conceivable, it is quite unlikely that the rope used on only one of a batch of 300 ladders, could have been cut shorter than the designed length. In the unlikely event that this occurred, with the result that one ladder was then assembled with a rope which was too short, so that the proper functioning of the latching mechanism would be impeded, it is likely that the defective ladder would be detected and pulled off the line, during the inspection process.
In cross-examination Mr Rundle said that members of the quality assurance team work six days a week in the factory. He agreed that being human beings, they could be tired and from time to time could miss things. It is thus again conceivable, although unlikely, that a defective ladder could be missed during inspection.
Also to be considered in this case, however, is that the bolts on both sides of this ladder had not been tightened, as they were designed to be. On Mr Rundle's evidence, that is another part of the ladder which is inspected by a member of the quality control team.
In cross-examination Mr Rundle explained that the bolts on the sides of the ladder were designed to be done up by hand, using a pneumatic wrench, which is set to a prescribed pressure. This part of the manufacturing process is undertaken by two people, at the same time, one on each side of the ladder, using two pneumatic wrenches. In re-examination Ms Rundle explained that the pneumatic wrenches are set to tighten the bolts to the same tension.
It follows that if the bolts on the ladder Mr Bamber purchased were not tightened up on either side during manufacture, that would have involved two other people involved in its assembly, one on each side of the conveyor line, having made the same mistake, at the same time, using two separate pneumatic wrenches, both not having been set to the prescribed pressure. Those who worked in quality control must also not have detected those errors.
There is no evidence that any other ladders were assembled without the bolts being tightened as they were designed to be.
When all of this is taken into account, I am satisfied that it is not open to conclude that Mr and Mrs Bamber have established, on the balance of probabilities, that that the defects in the ladder identified by the experts occurred during its manufacture.
Given the way in which the rope which controls the locking mechanism is cut to the same size in batches, that in manufacture the rope used on this one ladder was separately cut to a length which was too short, is improbable. So is the possibility that this defect was not identified, either during assembly, or quality control. That would have involved human error on the part of the person who cut the rope, the person who assembled the locking mechanism and the person who inspected the ladder, it not being suggested that there had been any deliberate sabotage.
That must be considered together with the likelihood that other people also made different, but identical mistakes during the manufacture of this ladder process, when they did not tighten the bolts located on both sides of the ladder to the predetermined point, using two separate pneumatic wrenches, each of which was not set to the correct tension. That is also exceedingly unlikely. That these defects were also not identified during quality control, is quite improbable.
When all of this is considered in light of no other complaints of such manufacturing problems in relation to other ladders it has manufactured having been received by Hartman since 2005, the conclusion that Mr and Mrs Bamber have met the onus which falls upon them to prove the factual basis on which their case depends, cannot be reached.

What caused Mrs Bamber's adjustment disorder?

The result of the conclusions which the experts who had examined Mrs Bamber reached was that Mrs Bamber's claim for economic loss was abandoned. Her claims for damages for psychiatric injury and out of pocket expenses were not, even though it became apparent that some of the out of pocket expenses which she had pursued were unconnected with any psychiatric condition.
Mrs Bamber's evidence was that when Mr Bamber fell, she was holding their dogs on a lead, so that they would not make a fuss while he was climbing the ladder. She heard Ms Ball call out "look out the ladder is going" and then saw Mr Bamber, who had his back towards her as he began to fall, twist in the air as he fell. She was then one to two metres away, standing behind a hedge, so he went out of view as he struck the ground. There were rocks in the vicinity. Mrs Bamber said that she then thought that he would be seriously injured or killed, given the height from which he fell and the way he fell.
When Mrs Bamber reached him, Mr Bamber was on the ground moaning. Ms Ball thought he may have broken his leg, or ankle, or both. Mrs Bamber said that she was very badly shaken up, possibly in a state of shock and not able to drive, so Ms Ball drove Mr Bamber to Hospital. Mrs Bamber did not accompany them, she explained in her oral evidence, because she was too distressed.
In her oral evidence Mrs Bamber also said she knew that Mr Bamber was alive, because she could hear him moaning and when she looked, she could see no blood. Still, she was hysterical, crying and shouting and asking him if he was alright.
Mrs Bamber also said that she felt immediate guilt, that she had caused a very serious injury, by making a fuss about the finial on the roof, which she had noticed earlier, while they were having lunch with Ms Ball. She thought that it was in danger of falling from the roof line, some seven to eight metres above the ground. Mr Bamber had said he would attend to it straight away, while Ms Ball was with them and could assist him. Mrs Bamber claimed that she still felt that guilt, because she could have lost her husband due to her sense of tidiness and wanting everything to be perfect.
Mrs Bamber said that when Mr Bamber came home from hospital on crutches, with plaster on his leg, he needed her assistance for showering, toileting, dressing and getting upstairs and even to get a drink. She had to do all of the housework and outdoor work, as well as working at Oxygen and driving Mr Bamber. She was not coping and going to work became too much for her. She was devastated when the decision to sell Oxygen was made, but could not remember if that was before or after Mr Bamber had further surgery in September 2012.
Mrs Bamber said that during 2012 her psychological condition worsened. She became increasingly anxious, nervous and depressed, due to Mr Bamber's injury and the decline of Oxygen. It became increasingly apparent to her that Mr Bamber would be unable to return to many of his pre-accident pursuits and she continued to blame herself for causing his accident.
By December 2012, after it became apparent that Mr Bamber's September surgery had not been successful, her depression got very bad. She was then having problems sleeping, suffering panic attacks and suicidal thoughts. The result was that she was admitted to hospital for a week. In her oral evidence Mrs Bamber said that she then needed to be somewhere safe and her admission had helped her.
Mrs Bamber said that in 2013 her condition was so bad, that she had difficulty performing outdoor duties at their home and continued to need the assistance of friends. In her oral evidence she said that she returned to the UK that year, because her stepfather was ill. She remained there for four or five months. She was devastated when the decision to sell their house was made, because they could not keep up its maintenance.
Mrs Bamber returned to Australia in November 2013 and in 2014, Mr and Mrs Bamber moved to Tasmania, where Mr Bamber had obtained employment. Mrs Bamber said in her oral evidence, that Mr Bamber could then still not drive, because of the ongoing problems with his ankle, with the result that she often had to drive him while they were in Tasmania.
Mrs Bamber then had to return to the UK again, because of her mother's ill health. At trial she remained living near her mother, while Mr Bamber lived elsewhere, near where he was then working in a managerial position. Initially he had worked closer in another such position, where he was paid considerably more and drove to work. But he had problems managing the driving and had thus sought other employment.
There were a number of difficulties with accepting Mrs Bamber's evidence as to what she suffered from having seen Mr Bamber fall, that this had contributed to Oxygen's failure and her claim, that the fall had contributed to the psychological illness from which she continued to suffer, in addition to those I have already discussed.
Mrs Bamber had no problems remembering what had happened to Mr Bamber in January 2012, but she claimed, however, to have a poor memory for very many other dates and events. Mrs Bamber said that she had spent years trying to forget what had then happened in 2012 and 2013 in relation to Oxygen and that she also had no memory of later events, including for example in June 2013, when her insurance claim for the vandalism was refused.
Mrs Bamber's evidence was that she did not have much faith in doctors, who had not helped her before and just said that she was depressed and gave her tablets and told her to see a therapist to change the way she was thinking. She also said that she could not afford a psychiatrist, whose assistance she considered she required, rather than medication, which did not solve her problems. She also said, repeatedly, that she did not take medication she had been prescribed, despite what she had told those who had prescribed it, as to how it had helped her.
This and significant other aspects of Mrs Bamber's evidence, was difficult to accept, as I have explained. In her evidentiary statement, she said that before Mr Bamber's injury "I had no psychological difficulties". This was inconsistent with her account in that statement, of having been treated for depression in 2008, as well as with what medical records and her oral evidence disclosed as to her earlier problems.
Mrs Bamber's history included being treated in 2008 by her GP, Dr Mishricky, for depressive symptoms. The cause of those symptoms is unclear.
Mrs Bamber was referred in February 2008 to Ms Campbell for therapy and was also prescribed medication, but on her evidence, she never took what was then, or later prescribed. Dr Mishricky's clinical records note, however, that by June 2008 she had "been on lovan for 6 months". In her March report to Dr Mishricky, Ms Campbell noted that Mrs Bamber had acknowledged "no experience of major trauma in her life", but was carrying a low sense of unhappiness and dissatisfaction for some time.
In her last report in November 2008 to Dr Mishricky, Ms Campbell advised that Mrs Bamber "planned to stay on the antidepressant medication for a while longer". In her evidence Mrs Bamber also denied ever having taken that medication.
In June 2011 Mrs Bamber again saw Dr Mishricky and was again treated for depressive symptoms, following the fire in the shed at her home, in which the shed and a van were destroyed. She was then prescribed Temazepam, but on her evidence, she also never took this medication.
In her oral evidence Mrs Bamber claimed to have been severely shocked by observing Mr Bamber fall in January 2012, but when she saw Dr Mishricky on 24 January there is no record that she raised any concerns about what she had seen, or the state of her then mental health.
Mrs Bamber did not then seek any treatment from Dr Mishricky or anyone else, for any mental health issues. When she next saw Dr Mishricky in June 2012, it was to have her ear syringed. She then raised sleeping problems, for which she was prescribed medication, but on her evidence she also did not take this medication.
Despite Mrs Bamber saying in her evidentiary statement that her psychological condition worsened throughout 2012 and in her oral evidence that she was not coping after Mr Bamber's fall, it was only in December 2012 that Mrs Bamber sought treatment from Dr Mishricky and Dr Sada. She said that her psychological condition was then very bad, she was having panic attacks and difficulty sleeping. The records indicate that had occurred when her sister died, but in her cross-examination she identified this to have been a close friend. Mrs Bamber was initially prescribed Temazepan and on 11 December Dr Mishricky prescribed Lovan, when Mrs Bamber reported suffering a panic attack. Again Mrs Bamber said in her evidence, however, that she did not take these medications.
On 16 December 2012, Mrs Bamber went to Wagga Wagga Base Hospital, after an acute anxiety attack. On her evidence Mrs Bamber was then suicidal, but the contemporaneous hospital records note that she then denied ideas of self harm and that she had recently ceased taking Lovan, because of gastro intestinal problems. She was prescribed Diazepam. Again, in her evidence Mrs Bamber denied having taken any of these medications.
Mrs Bamber was released the same day, but on 27 December 2012 was admitted to Hyson Green Psychiatric unit, in Canberra. That unit's records note that she "has multiple traumatic experiences and losses over last 2 years" and had "apparently has been overwhelmed and stressed with uncertainties about finance, sale of business and future plans". There was marked situational anxiety, no clear cut depressive symptoms and no suicidal ideation. There was also reference to huge financial losses and being six months behind in financial commitments. An adjustment disorder was diagnosed and a management plan devised, which provided for continuing treatment with Diazepam. Again, on Mrs Bamber's evidence, she did not take this medication.
These records accord with the evidence that Oxygen had traded at a loss since 2009; that its expenses were not being met; and that the negotiations with the prospective purchaser, Mr Morcom, were then proving difficult. Mrs Bamber said that she did not trust him. In evidence were the Oxygen financial records and documents relating to the insurance claim and attempts to sell Oxygen, which were consistent with Mrs Bamber's problems being the result of the financial pressures which had resulted from her conduct of a business which had never traded profitably.
In all of Mrs Bamber's medical records, there was only one reference to Mr Bamber breaking his ankle in January 2012. That was in progress notes made on 27 December 2012. The prevention and discharge release prevention plan also included that Mrs Bamber should "be assertive as regards to my own feelings regarding medications".
Mrs Bamber's financial situation worsened, with Mr Morcom reneging on the purchase due to be settled on 14 January. It was on the night of 13 January that the premises were vandalised, that resulting in its closure soon afterwards.
On 17 January 2013 Mrs Bamber saw Dr Mishricky, who ceased Lovan and prescribed Demazapan. Again, Mrs Bamber's evidence was that she also did not take this medication and pursued no other treatment.
Mrs Bamber's evidence was that she had had no confidence in her GP, Dr Mishricky, who prescribed her medication which she did not require for her condition and which she did not take. It is relevant to take into account that Mrs Bamber, who has a nursing background, had seen other doctors at the clinic at which Dr Mishricky worked and yet continued to see Dr MIshricky for years, despite what she said at the hearing about lacking confidence in her and other doctors.
Mrs Bamber never appears to have voiced the concerns she explained she had in her evidence, about her treating doctors, to anyone who she ever consulted. Instead, on her evidence she repeatedly lied to those who treated her, not only about taking the prescribed medication, but it also helping her.
In her evidentiary statement Mrs Bamber also said that her psychological condition throughout 2013 was so bad, that she had difficulty performing many of her normal outdoor duties, which Ms Ball helped her with. But it emerged that in 2013 Mrs Bamber had spent much of the year with her sick mother in England. It was then that she and Mr Bamber decided to sell their home.
The experts who examined Mrs Bamber, Dr Gertler in Australia and Dr Smith in the UK, recorded the history which she gave each of them, that she had suffered various symptoms after Mr Bamber's fall. They considered the medical records made available to them, but Mrs Bamber did not tell them, what she gave evidence about, namely, that she had never taken any of the medication she had been prescribed, for any of the mental health problems for which she had ever sought assistance, including after Mr Bamber's fall.
Dr Gertler saw Ms Bamber in December 2013 in Sydney. His report included a history that Mrs Bamber was treated by her GP and a psychologist, on some 12 occasions, after Mr Bamber's fall, but her depression worsened and she was admitted at Wagga Wagga Base Hospital and then a psychiatric unit in Canberra. She was then still under her GP's care, taking prescribed Diazepam and wanted further treatment by a psychologist or psychiatrist. Dr Gertler then considered that Mrs Bamber was suffering an adjustment disorder with depressed mood and a major depression.
Mrs Bamber next saw another GP, Dr Habib, in July 2014, but she sought no further treatment for any psychological problems. She then returned to the UK to live.
In his December 2015 report, after Dr Gertler had spoken to Mrs Bamber by Skype, he noted that she had told him that she continued to suffer depression, but had not pursued psychological treatment, because the insurance company had not given its approval and she could not afford private care, but she continued to take Diazepam. On her evidence at trial this was also untrue. Dr Gertler then considered that Mrs Bamber had recovered from the deterioration in her emotional state following Mr Bamber's fall, but remained negative about the future, her mother's illness and her need to care for her, aggravating her feelings, for which she required care, given the continuing diagnosis of adjustment disorder.
In his June 2016 report Dr Smith noted that the history which Mrs Bamber gave included that before Mr Bamber's fall, she had not "previously experienced psychological symptoms of significance". Dr Smith also recorded that Mrs Bamber reported then utilising Diazepam as required for anxiety. In her evidence she also denied taking such medication.
In their April 2017 joint report the experts agreed that it was as the result of having witnessed her husband's fall, that Mrs Bamber experienced an adjustment disorder with mixed depression and anxious mood, which had partially remitted. They considered that her ongoing symptoms were not, however, related to his fall, but rather to this litigation and the difficulties she had experienced, adjusting to her return to England. The experts nevertheless considered her prognosis to be good and that she required no formal psychiatric treatment, although ten counselling sessions would be beneficial. They also considered that Mrs Bamber's work capacity had not been impaired, nor had there been any need for care or assistance, at any time following Mr Bamber's accident.
It is apparent from the joint report that the clinical records which reflected the medication which Mrs Bamber had been prescribed and which she told both Dr Gertler and Dr Smith that she continued taking, were taken into account by the experts, in the conclusions which they reached.
The experts were not required to give concurrent evidence, with the result that they could not be asked about the impact on their opinions, of Mrs Bamber's evidence that she had lied to them and those who had treated her in the past, about taking the medication she had been prescribed at various times, for her mental health problems and of having been helped by that medication.
Despite my reservations, accepting that Mrs Bamber was truthful when she gave her evidence about not taking her prescribed medication, I am satisfied that the expert's opinions that witnessing Mr Bamber's fall contributed to the mild psychiatric condition which she was still found to be suffering in 2016, cannot be accepted. Those opinions depended on a history which Mrs Bamber denied in her evidence.
In those circumstances, the views which the experts reached as to the cause and severity of Mrs Bamber's mild psychiatric condition, cannot be accepted.
On the evidence any symptoms which Mrs Bamber experienced, after seeing Mr Bamber fall in January 2012, were neither serious nor ongoing. From what little effect that experience had on her, she recovered, without the need for either medication, or other treatment. If Mrs Bamber did suffer from a psychiatric illness when admitted to hospital in December 2012, it was an illness which was not the result of having seen Mr Bamber fall in January, but of other stressors which she was then experiencing.
It follows that even if it had been established that Mr Bamber's fall was caused by the manufacture of the ladder, Mrs Bamber's claim would fail because she has not established that she suffered any illness for which she is entitled to damages against Hartman.

Did Mr Bamber's fall preclude him from working?

Despite there being no issue that Mr Bamber's ankle injury was serious, requiring repeated surgical treatment and impacting his ability to engage in activities which he had previously enjoyed and Mr Bamber's concessions that he was working at Oxygen before the fall, not Planet Max, what work he actually performed both before and after the fall and what he was then capable of performing, were in issue.
That the consequences of Mr Bamber's fall were such as to have precluded him from either from performing work of the kind he was performing at Oxygen immediately before the fall, or managerial work of the kind which he had performed in the past and to which he eventually returned, was disputed. That he was not able to resume driving after the fall, was also in issue, as was whether the consequences of the fall had an impact on the decision Mr and Mrs Bamber later made to sell Oxygen.
I am not able to come to conclusions favourable to the case which Mr Bamber advanced, on any of these matters.
Mr Bamber has university qualifications in health science and management and a PhD in tourism management. He was a keen sportsman and had played professional soccer. He also taught sports at a university in the USA, where he completed a Masters in health science, before returning to the UK, where he managed a sporting facility. Between 1990 and 1995 Mr Bamber worked with the Abu Dhabi National Hotel, where he looked after the fitness and general health of 5,000 employees. In 1997 he took up employment at the Crown Casino in Melbourne, managing its health facilities. In 2002 he moved to Wagga Wagga, where he was the project manager at the Oasis Aquatic Centre. He began the Planet Max business in 2005.
In his evidentiary statement Mr Bamber described the ongoing consequences of his physical injuries. He had surgery on his ankle on 9 January 2012 and was discharged on crutches on 10 January, which he later stopped using. He required further surgery in September 2012, involving an ankle arthroscopy and debridement. In April 2014 he underwent ankle arthrodesis at Canberra Hospital. In the UK in 2015 he sought further treatment for instability in the ankle and he suffered an episode while driving, when he reported that he had been unable to move his foot to brake.
In his statement Mr Bamber said that the nutrition shop which formed part of Planet Max was closed for 12 weeks after his fall, but he had returned to work in March and attempted to operate Planet Max and to assist with administrative duties for Oxygen. He was not, however, able to do much of his former work there, which included taking classes, personal fitness and maintenance and repair of plant and equipment. This evidence was contradicted by that of Ms Ball.
Mr Bamber also said that by mid-2012 it became clear to him that he would not be able to do much of the work associated with Planet Max and Oxygen and that he had received medical advice, that he should not do work which involved him being on his feet for long periods and that he should avoid physical work, including gym training and class work of the kind which much of his work at both Oxygen and Planet Max had involved. It was for that reason that he and Mrs Bamber decided to cease both business, it not being finically viable to pay employees to do the work he had previously been doing.
In his oral evidence Mr Bamber's evidence altered significantly.
Mr Bamber then said that before the fall he was using a part of the Oxygen promises to sell nutrition products, under the name Oxygen Nutrition, after the closure of Planet Max, he thought in 2010. He also said that this was a separate business to Oxygen, his wife's business, but it did not have a separate ABN. He then said that he also gave weight loss counselling and one on one physical training sessions to clients.
It was 12 weeks after the fall, Mr Bamber said, that he returned to work on a fairly interim basis, being in and out a couple of times a week, but he was not back to full capacity. He found that he could no longer facilitate his clients' needs, because he "couldn't do that anymore" and the business started slowing down. It was not profitable, because it was not open and he and Mrs Bamber decided to put the business up for sale. That sale fell through and eventually the business folded, after an insurance claim, in early 2013.
In cross-examination it emerged that even by this evidence, Mr Bamber had sought to paint a picture of the consequences of his fall which was untrue. That was confirmed by evidence given by Mrs Bamber and Ms Ball, who both gave evidence that Mr Bamber was working at Oxygen before his fall.
In cross-examination Mrs Bamber claimed that she could not recall details of Mr Bamber's recovery, or even him returning to work at Oxygen. Ms Ball's evidence that he did, I am satisfied must be accepted.
In cross-examination Mr Bamber agreed that not only had the Planet Max business traded at a loss, before it was closed, but so had the Oxygen business. Further, Planet Max had ceased operation, long before his fall in 2012. Its business had involved the sale of gym equipment, setting it up and giving basic induction on how it operated, as well as the sale of supplements. It was this latter work which Mr Bamber had continued at Oxygen.
When cross-examined as to other discrepancies between his oral evidence and his evidentiary statement, Mr Bamber explained them to have been the result of him mistakenly referring to Planet Max, rather than to Oxygen Nutrition, the name under which he had conducted the supplement business, after he had closed Planet Max and him not being diligent in how he had read his evidentiary statement. That explanation was difficult to accept. Nor do I accept that the errors in his statement were the result of any representative errors.
Mr Bamber was then cross-examined as to what work he had been precluded from performing at Oxygen, after the accident. Mr Bamber then said that he could not perform the work involved in selling gym equipment, which he had undertaken when Planet Max operated, but he then conceded that he had not been doing work of that kind, at Oxygen.
It was finally the work involved in demonstrating exercises to clients, which Mr Bamber said that he could not perform, when he returned to work at Oxygen. That was consistent with Ms Ball's evidence, but contrary to Mr Bamber's case, her evidence was that this work was then undertaken by other employees of the gym.
Mr Bamber explained that he was on crutches for some five or six weeks, while in a cast and that he had returned to work while on them, not weight bearing. Later he had worn a boot, initially while still using crutches, if he needed them. He denied, however, having told his GP in February 2012 that he had been full weight bearing for about two weeks, despite having been told not to, as was recorded in his GP's notes, or having then said that he was experiencing minimal pain and had a good range of movement. Mr Bamber also denied being able to weight bear by 24 February. On his evidence, by then he was using a walking stick, he had more than minimal pain and did not have a good range of movement.
In his evidentiary statement Mr Bamber also said that the September 2012 ankle fusion surgery had been unsuccessful. He disagreed with medical records which recorded that nine days after that surgery, he had reported no pain and that he was walking more comfortably than prior to surgery. He also denied that he could by then have pursued managerial work.
Mr Bamber also said that he continued suffering pain and restriction in his right ankle and that by February 2013, he was still recovering from the second surgery. That and the pursuit of the sale of Oxygen had precluded him from pursuing other work.
I am satisfied that in so far as Mr Bamber's evidence departs from what is recorded in these medical records, it cannot be accepted. I consider that those records provide much more reliable evidence as to the true state of his recovery at particular times, than Mr Bamber's evidence does.
I do not accept Mr Bamber's evidence as to the impact of his ankle injury on his ability to perform his work at Oxygen, other than as to demonstrating exercises to clients, given Ms Ball's evidence as to what Mr Bamber in fact did after the accident, being satisfied that her evidence must be preferred.
Ms Ball said that it was she who signed up clients at Oxygen, dealt with work, health and safety issues, maintained equipment, took bookings for classes, ensured that everything was running smoothly and that client needs were being met. It was Mrs Bamber who was the owner and it was she who did all the book work.
Contrary to Mr Bamber's evidence as to his work before the fall, on Ms Ball's evidence he was taking some group classes, selling supplements and giving advice about supplements, in a shop part of the premises. He also gave advice to clients about programs, which he would demonstrate on the gym equipment, but even before the fall he was not at Oxygen all day, or even every day.
Ms Ball recalled Mr Bamber returning to work at Oxygen after the fall, while he had a boot on his foot. On a few occasions she had picked him up. Apart from demonstrating exercises, which other instructors then did, on Ms Ball's evidence, Mr Bamber then performed his other work, but he only stayed for a couple of hours, because he said he was in pain.
In cross-examination, Mr Bamber also denied that by February 2012, he could have performed managerial tasks working in a health and fitness centre, in a general manager's job. Given his extensive qualifications, his prior employment history and the work which Mr Bamber actually performed, even on his own account, when he returned to work after the fall, that evidence cannot be accepted.
When Mr Bamber was cross-examined about the profitability of Oxygen, which had first started trading in the last quarter of 2009, he agreed that until its closure in 2013, like Planet Max, it had also traded at a loss. He also agreed that during the time that he was unable to work after the fall, Oxygen's figures had stayed at similar levels, even though for that period Oxygen Nutrition had not traded at all.
Still Mr Bamber denied that his evidence that the decision to sell Oxygen had been made by he and Mrs Bamber because he could not perform physical work of the type he had been performing before the accident, was wrong, as was his evidence that additional cost had been incurred because extra staff had to be hired to perform the work in the gym he had previously undertaken. Neither Ms Ball's evidence nor the financial records supported Mr Bamber's evidence. In the quarter before his fall, Oxygen's losses had been even greater.
The business was vandalised on 13 January 2013, after which it was no longer viable and so, Mr Bamber said, the business was closed and the equipment sold. Mr Bamber claimed that even then, he could not have undertaken managerial work, because his leadership style involved him in all facets of the business, including member engagement, working with the public and physically taking classes and the state of his ankle did not permit him to perform such work. I also do not accept that evidence.
Mr Bamber claimed that he did seek other work from February 2013, throughout Australia and overseas. He said that there were many jobs available involving the management of health centres, but he could not apply for them, because he could not carry out the inherent duties required, because in his experience, in addition to administration, such work required him to take classes and to provide one on one personal training. I also do not accept that evidence. That Mr Bamber enjoyed work of that kind may be accepted. That his inability to perform it after the fall precluded him from performing the managerial work he was qualified to perform and which he later accepted, cannot.
In May 2013 Mr Bamber accepted a three month contract with the Osprey Group, which involved him auditing various leisure facilities in Australia, including cinemas and bowling alleys. That work involved driving, with which he said he had experienced some problems, but he was able to work a 40 hour week. He was offered a further three month contract, but on 29 September, while inspecting a vacant building in Tamworth, he was assaulted and robbed, suffering injuries to his back and teeth, as well as a psychological injury, for which he received treatment. He made a full recovery and was fit to resume work in January 2014. Mr Bamber then applied for various jobs.
Mr Bamber had further surgery to his ankle in April 2014, from which he agreed that he had obtained benefit, his ankle becoming much improved, feeling more secure, with reduced pain and improved mobility. But he denied that he then had no difficulty driving, even though when he went to Tasmania in July 2014 to take up another managerial position in July, he had a manual car, which he did drive.
Mrs Bamber's evidence was that she did remember that Mr Bamber was unable to drive in the time up to their departure from Wagga, after the sale of the house in December 2013. Even when they moved to Tasmania, Mrs Bamber claimed, however, that it was she who drove Mr Bamber, even though he then had his own car.
Mr Bamber's position under a 12 month contract with Zap Fitness, involved him overseeing the management of 28 health clubs in Tasmania and South Australia, commanding a salary of $95,000 and working a 40 hour week, even though on his evidence, he was not, in fact, then completely fit to perform that work. That was because, Mr Bamber explained, he was still suffering the consequences of the psychological injury he had sustained as the result of the assault in Tamworth.
In that position Mr Bamber reported to the executive chairman. A problem arose over his performance. A meeting was arranged between them on 30 September. On 29 September 2014 Mr Bamber had another serious accident, when he stumbled on a carpet, fell down some stairs and suffered a head injury and the partial loss of vision in his left eye. Mr Bamber was unfit for work until December. He returned to work on a return to work plan, but by mutual agreement he was paid out the balance of his contract and the employment came to an end. He and Mrs Bamber returned to the UK to live in late 2014.
Mr Bamber's evidentiary statement was filed in May 2016. He there said that he had looked for work in the UK, without success, but it emerged that he did eventually find lucrative managerial work, to which he drove. On Mr Bamber's evidence his ankle is not now uncomfortable when he is walking, but he still has difficulties driving. He said that he had left that employment because he found that he could not manage that driving, and later took up other managerial work a considerable distance from his home, where he was paid considerably less and where he had to rent a flat, to live. This evidence was also not credible. Whatever the reasons were for him having left his former employment, I am not satisfied that it was because of the adverse consequences of his fall.
In the result it must be concluded that Mr and Mrs Bamber have not established that Mr Bamber's injury prevented him from performing his work at Oxygen, or that the physical consequences of his fall had an adverse impact on Oxygen's financial performance, or influenced the decision to sell that business, or later ever precluded him from performing other managerial work which he obtained.

Contributory negligence

Had I been able to reach conclusions favourable to Mr and Mrs Bamber's claims, in Mr Bamber's case there would have to be a deduction for his contributory negligence.
Mr Bamber said that the locking mechanism was tight when he tested it while it was on the ground, as I have explained. On the experts' examination of the ladder, the rope could be manipulated, so that the mechanism could engage, but that required effort. Mr Bamber must have managed that effort, if his and Ms Ball's evidence that they had checked the operation of the locking mechanism, as the sticker on the ladder instructed, while it was on the ground, is to be accepted. They both said that the mechanism then locked.
The ladder can only have collapsed because that same effort was not applied, when the ladder was extended. In the result there would have to be a deduction for contributory negligence on Mr Bamber's part, which I would assess in the order of 30%.

Mrs Bamber

In Mrs Bamber's case, on the evidence I have discussed, even if I had come to the conclusion that she had suffered a psychiatric condition to which Mr Bamber's fall had contributed, I am not satisfied either that it left her unfit to work, or that it could be assessed as falling above the statutory threshold in s 16 of the Civil Liability Act 2005 (NSW), namely 15% of a most extreme case.
In the result, Mrs Bamber's claim to an award of damages for either non-economic loss, or past or future economic loss was not pressed.
As to the $1,531.65 past medical expenses Mrs Bamber claimed, those relating to the attendances on Dr Mishricky on 24 January 2012 and 21 June 2012 were established not to have been connected with Mrs Bamber observing Mr Bamber fall. Even the attendances which resulted in Mrs Bamber's admission to the Hyson Green Psychiatric unit in December 2012 have not been established as being the result of Mrs Bamber observing Mr Bamber fall, as I have explained. If anything, that was connected with the consequences of the financial failure of her business and the difficulties then being experienced with its sale, which was also not the result of Mr Bamber's fall.
The claim for future medical expenses of $70 per month could also not be awarded, given Mrs Bamber's evidence that she does not take medication she is prescribed. Nor is there any basis for awarding her the cost of counselling. It is not the consequences of Mrs Bamber observing Mr Bamber fall, which might make that desirable for her.
Nor was a basis for claimed travel expenses established. They appear to relate to travel to Canberra in December 2012 and January 2013. What is claimed appears to far exceed the cost of such travel, even if it had been the result of Mrs Bamber observing Mr Bamber fall.

Mr Bamber

As I have explained, I am satisfied that Hartman's case that Mr Bamber's evidence had to be approached with considerable caution, because he had repeatedly exaggerated and embellished his position, in order the maximise his entitlement to damages, must be accepted. His evidence, for example, about the care provided him by Mrs Bamber in 2013, when for a considerable time she was out of the country, proved simply not to be true.
Mr Bamber claimed non-economic loss of 45% of a worse case.
Had Mr Bamber succeeded, I would have assessed his non-economic loss at 30% of a worst case, given his age 58, the evidence of the serious injury to his ankle, the subsequent surgeries he required and the ongoing consequences of that injury, which I accept do exist, albeit they are significantly less serious than Mr Bamber claimed. That is apparent from the records of accounts he has given in the past, to those who have treated him, as to the improvement which he obtained from treatment, improvement which he denied in his evidence.
I also do not accept Mr Bamber's evidence that he could not drive at various times, or cannot do so now, inconsistent and contradictory as the evidence which he and Mrs Bamber gave about that topic was. Further, while I am satisfied that Mr Bamber has been left with the consequences of injuries which have affected his former active lifestyle, I am not satisfied that they are as severe as he claimed, or that they have ever precluded him from performing managerial work, other than for short period of time immediately post surgery.
Mr Bamber's past economic loss was quantified to be $100,750 and his future economic loss to age 70, $304,677. The calculations proceeded on an assumption that his economic capacity should be assessed at approximately $90,000 per annum. The difficulty with the claim in respect of past economic loss, so advanced, is that I am not satisfied the evidence provides a proper basis for concluding that but for the injury to his ankle, Mr Bamber would have earned $90,000 per annum, given that the financial records established that neither Planet Max nor Oxygen were ever profitable.
Further, contrary to the case advanced for Mr Bamber, what he has in fact earned from time to time, would have to be taken into account in the calculation of any damages for past economic loss. In Rabay & Anor v Bristow [2005] NSWCA 199 it was observed at [73]: "[73] Compensation for loss of earning capacity is awarded because the diminution in an injured plaintiff's earning capacity 'is or may be productive of financial loss': Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed (Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she 'is not incapacitated from performing'. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: H Luntz, Assessment of Damages for Personal Injury and Death (4th Ed) at 118 [1.9.20].
In this case the evidence of what Mr Bamber is capable of doing and what jobs are open to him, was established by the evidence of the managerial work he has in fact performed, since the injury to his ankle.
Hartman accepted that from 8 January 2012 to 24 February 2012, Mr Bamber was significantly restricted in his ability to work, but he was not then earning any income from Oxygen. There is no basis in the evidence for the conclusion that position would have altered, whilever Mr Bamber worked in that business. It was eventually closed in January 2013.
There is no evidence that while operating Planet Max, or at any time while working at Oxygen, Mr Bamber earned any income from that work. The attempt, in 2012, to sell Oxygen in which Mr Bamber had no interest, failed. That has to be considered with the evidence that while in the tax year ending June 2005, Mr Bamber earned $76,000 while working for the Council, in 2006 and 2007 his earnings fell to some $45,184 and $44,228 respectively in his employment with Easy Fitness.
In the circumstances, the submission that but for his fall, Mr Bamber had a reasonable expectation of obtaining a substantial income from Oxygen, simply cannot be accepted. Further, in the three months Mr Bamber worked with Wagga Entertainment Centre in 2013, he earned $32,944.50, with the result that he was then better off than when he had worked in the Oxygen business.
As I have explained, Mr Bamber's evidence that he could not have earlier obtained other positions, of which he said many were available, because of restrictions then resulting from his ankle injury, simply cannot be accepted, when his qualifications and his record of prior and subsequent managerial work are considered, as they must be.
In August 2014, when Mr Bamber took up employment with Zap Fitness, it was on a contract of $95,000 for a year. That contract was paid out and in the UK he obtained employment in March 2016 earning £38,000 per annum. He resigned from that employment in October, on his evidence because of problems associated with driving. In March 2017 he took up employment at £28,000 per annum, but that required him to rent a serviced apartment away from his home.
Mr Bamber's evidence as to his reasons for resigning his initial employment in the UK, to earn a considerably lesser amount, much further away from home, so far that he had to incur the additional extra cost of renting an apartment where he has to live away from his wife, was not convincing. They were because of his claimed problems with driving and with commuting from home, to his first workplace, by public transport. It is not necessary to speculate as to the real reasons for that decision. That they have anything to do with his injury from the fall from the ladder, was not established
In any event, given what he earned in each of these positions, Mr Bamber was better off than he was while working at Oxygen. Contrary to his case, it follows that if any orders could be made in his favour, what he earned in each of those positions would have to be taken into account in the calculation of his damages.
Given, however, Mr Bamber's financial position while operating Planet Max and working at Oxygen and the other problems I have discussed with his evidence, I am not satisfied that any basis for an order for past economic loss, has been established.
As to future economic loss, as discussed in Mason v Demasi [2012] NSWCA 210 at [29], what must be considered is not only whether there has been a diminution in Mr Bamber's earning capacity as the result of his fall, but also whether that diminution has been or may be productive of financial loss: Graham v Baker [1961] 106 CLR 340 at 346-347; [1961] HCA 48; Medlin v State Government Insurance Commissioner (1995) 182 CLR 1 at 3, 16; [1995] HCA 516.
I am not satisfied that Mr Bamber has established either any diminution in his earning capacity, or that it would be productive of loss. The evidence established not only that Mr Bamber was soon fit for managerial work, after the fall, when he chose to pursue it, he obtained such employment and is even now pursuing such work in the UK. Understandably given his education and prior experience, any ongoing consequences of his ankle injury have not precluded him from obtaining or performing such work, even though he does not have the capacity that he had before that injury, to undertake the work involved in taking a gym class.
Mr Bamber's past expenses of $16,594.95 and future out of pocket expenses quantified at $38,705 were claimed and accepted by Hartman, subject to final calculation, if liability was established, which it has not been.
The amount of the cost of future surgical treatment, including $50,000 for future ankle replacement, other medical treatment, pain education and gym and physical sessions were in issue, even if liability was established. Mr Bamber has not established the amounts claimed, but I consider that the sums conceded by Hartman, totalling $9,270 could be awarded.
Past domestic assistance totalling $24,568 was also sought, as was $145,638 for future domestic assistance. I am not satisfied that Mr Bamber has established that there is, or was, a reasonable need for the services he claims to be provided, let alone that they arose because of his ankle injury. Any needs which he had in the past persisted only for a relatively short period after his surgeries.
Mr Bamber's past claims rest on his evidence which did not accord with what medical records evidence as to the progress of his recovery, which suggest recovery at times much earlier than he claimed. Further some of his claims rest on considerable periods when Mr and Mrs Bamber did not even live together.
For example, in cross-examination Mr Bamber acknowledged that during 2013, Mrs Bamber had spent considerable periods in the UK and so had not then provided the domestic assistance of five hours per week which he had claimed. When she was not there, at one point Mr Bamber said that no-one had provided him with that care, at another that friends had helped him with things like lawn mowing and gardening.
Mr Bamber's evidence was problematic, contradictory in part and inconsistent also with aspects of Mrs Bamber's evidence.
The evidence is that both before and after his injury, when present Mrs Bamber did most of the indoor domestic tasks, but the claims are for 8 hours assistance for 3 weeks, then 7 hours per week to July 2012, then 5 hours to December 2013 and 4 hours afterward, to the present.
While Hartman conceded 4 hours assistance to 3 February, reduced then to 3 hours and from 24 February, when Mr Bamber's CAM boot came off in May, to 2 hours, it contended that from May 2012 his concession in cross-examination that no one provided him with that assistance when Mrs Bamber was away, demonstrated that he had no ongoing need for such assistance. That must be accepted.
In respect of the claims for outdoor assistance of 4 hours per week from 8 January to 12 December 2013 and then 3 and a half hours per week, as Hartman also contended, after Mr Bamber came out of the CAM boot and was able to drive, as he conceded himself, he could have used the ride on lawn mower, even though he would have needed assistance with heavier tasks, until the Wagga Wagga house was sold.
That there was such a need at rental properties where Mr and Mrs Bamber have since lived, including in the UK, where Mrs Bamber said that she has chosen to do some gardening, even though it is provided by the agent, was not established. When it is considered that Mr Bamber now does not even live in this property, but visits it only every two to three weeks, that any orders other than those conceded by Hartman, in the event that liability was established, cannot be accepted.
The problem with claims for gratuitous care was that they rested on care claimed to have been provided to Mr Bamber by Mrs Bamber, including in respect of times when he was no longer in a cast, after which he was independent in self-care. On the medical records I am not satisfied that this occurred later than 18 January 2012, when he was in CAM boot.
Nor am I satisfied that after May 2012 Mr Bamber was unable to drive. Even though he may have preferred Mrs Bamber to drive, on the evidence he did drive, including during the times that Mrs Bamber was overseas in 2013, when they moved to Tasmania and in the UK.
As to the claim for future care, Mr and Mrs Bamber's evidence is that they do not prefer to live apart and on Mrs Bamber's part, that she will provide the assistance she has provided in the past. Nevertheless, it must be concluded that Mr Bamber is now capable of performing all but the heaviest outdoor tasks that he has performed in the past, but there is no need evidence that he has a need to do so.
Even if any award could be made, on the basis that in the future Mr and Mrs Bamber might live somewhere where there is a need to do such outdoor tasks, it follows that would have to be a discount: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.

Orders

In the result there must be judgment for Hartman.
The usual costs order under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) is that costs as agreed or assessed, follow the event. In this case that would in both cases be an order in favour of Hartman. Unless the parties approach to be heard within 14 days, that will be the Court's order.
Otherwise, for these reasons I now order that: 1. Both Mr and Mrs Bamber's claims be dismissed; and 2. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

I certify that this and the …… preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Schmidt DATE: …………………………………………. ASSOCIATE: ………………………………… DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2017

Competition and Consumer Act 2010(NSW)

Civil Liability Act 2005(NSW)

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