Bryant v Department of Housing, New South Wales & Anor

District Court of NSW|2007-08-27|Before: Mr J

CITATION: Bryant v Department of Housing, New South Wales & Anor [2007] NSWDC 208

HEARING DATE(S): 27 August 2007, 28 August 2007, 29 August 2007, 27 September 2007 and 28 September 2007

DECISION: Verdict for the plaintiff against the first and second defendants in amount of $5,154.50; parties to be heard on costs

LEGISLATION CITED: Civil Liability Act, ss 15(3) and 16(1) Trade Practices Act 1974 (Cth), s 75AD

Austin v Bonney [1999] 1 Qd R 114 Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8 Cavalier v Pope [1906] AC 428 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Donoghue v Stevenson [1932] AC 562 CASES CITED: Gaskell v Denkas Building Services Pty Ltd & Ors [2006] NSWSC 632 Jones v Bartlett (2000) 205 CLR 166 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Parker v South Australian Housing Trust (1986) 41 SASR 493 Quarman v Burnett (1840) 6 M & W 499; 151 ER 509 Scott v Davis (2000) 204 CLR 333 Trevor Howse Associates Pty Ltd v Dessmann & Anor; Quadrant Research Services Pty Ltd v Dessmann & Anor [2003] NSWCA 148

Warren Bryant - Plaintiff PARTIES: Department of Housing, New South Wales - First Defendant J & L Gullotta Pty Limited - Second Defendant

Mr M Thompson (Plaintiff) COUNSEL: Ms L M Csillag (First Defendant) Mr J G Stewart (Second Defendant)

Gerard Malouf & Partners (Plaintiff) SOLICITORS: Hunt & Hunt (First Defendant) McCulloch & Buggy (Second Defendant)

1 Ordinary domestic activity resulted in injury to the plaintiff, Warren Bryant, as he ascended a flight of stairs at the rear of a house he shared with his partner, Phina Aquilina, in Johnson Avenue at South Camden on Friday 22 April 2005 at about 5.30pm. The premises were owned by the Department of Housing, New South Wales, the first defendant, which had leased them to Ms Aquilina under a tenancy agreement since 1995. The subject stairs were repaired on 12 January 2005 by J & L Gullotta Pty Limited, the second defendant, under instructions from Spotless Services Pty Limited at the request of the first defendant when the pre-cast concrete treads on the three steps were renewed. In ascending the stairs, the plaintiff fell backwards onto a concrete path and hit his head on a lawnmower after the bottom step collapsed under his weight.

2 Although not seeking immediate medical attention, the plaintiff noticed soreness in his right arm, shoulder and low back; he was dazed with a headache and became concerned about his head as it continued to throb. Rest in a chair at home for a day or so brought no improvement and, so, he attended Camden Hospital at about 8.00am on Sunday 24 April 2005 for assessment; he was transported by ambulance to Campbelltown Hospital for a CT scan of the head and then discharged. He consulted his general practitioner, Dr Peter Arnaudon, the following Tuesday. Consequent disabilities were said to have affected the plaintiff's personal, domestic and working life in a continuing way.

3 The plaintiff sued the defendants on the factual basis that the stairs, after repair in early-2005, had a defect in that the concrete steps were not properly secured to the metal frame by being glued instead of fixed by brackets and bolts so that they did not provide a secure support for persons using them. The claim against the first defendant was brought in its capacity as the owner of the premises and who, as such, had responsibility for their care and control. As against the second defendant, the claim was brought in its capacity as the repairer of the stairs by an arrangement with the first defendant. The action was in negligence against both defendants for breach of the respective duty of care each owed to the plaintiff to take reasonable care for his safety. By way of defence, contributory negligence was pleaded by each defendant against the plaintiff for failure to take reasonable care for his own safety.

4 The particulars of negligence alleged against each defendant were similar and, as indicated, related to the repairs made a few months earlier. Essentially, it was pleaded that the first defendant failed to engage competent tradesmen to repair the stairs, failed to inspect the stairs to determine they were safe, left the stairs in a defective condition and failed to give any warning to the plaintiff about the defect. As to the second defendant, it was said it failed to properly secure the steps to the frame by only gluing them rather than using brackets and bolts, failed to competently repair the stairs and left them in a defective condition.

5 An additional count was brought against the first defendant for breach of a warranty under a lease it had with the plaintiff that the premises were as safe for the purposes of the occupancy as reasonable care and skill could make them. However, on the evidence showing that it was Ms Aquilina and not the plaintiff who was the actual tenant under the lease, this count was abandoned. Also, a count against the second defendant for a breach by it of s 75AD of the Trade Practices Act 1974 (Cth) as to liability for the supply of defective goods causing injury was not pursued. The proceedings thus focused on the claim in negligence.

6 Although liability, contributory negligence, injury and damages were all originally in issue, the second defendant made no submissions against its liability in view of the evidence and conceded there could be no finding of contributory negligence by the plaintiff. The first defendant continued its resistance to any liability on the basis that it had discharged any duty of care owed to the plaintiff by engaging a qualified contractor to repair the stairs and with no independent duty to inspect the premises as to their safety; it did not, however, persist in any argument for contributory negligence.

7 Both defendants vigorously resisted the plaintiff's injuries and consequent condition as being caused by the subject accident and the quantum of damages as claimed was a major contention in the proceedings. In short, what the defendants submitted was that the plaintiff suffered but minor and transient injuries in the accident which did not sound in damages. A finding to that effect was supported, as the defendants put their cases, by the unreliability of the evidence of the plaintiff and of those persons who gave evidence in his case. The medical evidence was dependent on acceptance of the plaintiff's discredited history of events and of his pre-existing medical condition, with otherwise no definitive objective medical evidence in his favour, so that the nature and degree of the plaintiff's injuries and resultant disabilities as claimed were not established. Effectively, the defendants sought verdicts against the plaintiff.

8 The provisions of the Civil Liability Act 2002 apply to a determination of this matter.

9 Born on 25 May 1944, the plaintiff was age 60 years at the time of the accident and age 63 years at the date of trial. The plaintiff had not been employed since 1980 when he was injured during the course of employment with Nepean River County Council as a linesman. He was wiring high voltage wires after a storm and fell about two meters from a cherry picker fracturing his spine and three vertebrae in the lower back. He underwent a spinal fusion by Dr Peter Giblin, an orthopaedic surgeon, and after a period on workers compensation was retired; in 1982 he commenced receipt of a disability support pension which is continuing.

10 Around 1995, the plaintiff and Ms Aquilina moved into the first defendant's premises at Camden. In the late-1990s he started, on a self-employed basis in conjunction with Ms Aquilina, doing part-time work of mowing lawns on about four to six occasions a week; he erected on a daily basis for Starr Real Estate "For Sale" signs outside houses by putting two stakes in the ground and screwing the sign to the stakes; and, every two weeks or so, he would do a rubbish removal job. Those activities did not apparently involve the plaintiff in long working hours and the weekly earnings, estimated at about $50 in total after equal sharing with Ms Aquilina, supplemented but did not disqualify him from the disability pension. He said he had some difficulties in doing the work because of arthritis, which was "in the whole of my body", but generally he coped quite well. During the pre-accident period, the plaintiff admitted to a number of physical symptoms which he was able to manage with tablets, such as Panadol or Panadeine on a monthly basis, and without being bothered too much - the right arm had a "tingling" feeling down to the fingers, he had arthritic pain in the lower back on a pretty constant basis for which he took Celebrex tablets daily, for about 14 or 15 years he had consulted Dr Arnaudon for general aches and pains, his right shoulder had some soreness and he was on medication for high blood pressure.

11 Domestically, the plaintiff said he assisted Ms Aquilina with the housework, such as cleaning floors and vacuuming, washing up and some cooking, including barbecues; he was able to attend to his own personal needs. He enjoyed driving a motor vehicle and did all the family driving. Ms Aquilina confirmed the plaintiff's assistance with the household chores of washing up, vacuuming floors, making beds and hanging out the washing on the line; in terms of his general activities around the house, she said "he was fine" and it was only "now and then I'd drive but not often."

12 Significantly, Ms Aquilina, who has lived with the plaintiff for 15 years, gave the following evidence about his physical condition during that period: Q. Did he have arthritis in his knee before the accident? A. I can't say. … Q. Right about fifteen years and when you first moved in together you knew he had a spinal fusion? A. Yes. Q. And that's why he was on a disability pension? A. Yes. Q. And he had some aches and pains arising from that didn't he? A. I suppose so.

Q. You suppose so? A. I don't know. … Q. It's not true that you don't know that he had some aches and pains before this accident? A. He had a spinal fusion. Q. Right and you know that he was experiencing pain regularly before the accident don't you? A. No I don't know. Q. I do believe at some point - sorry Ms Aquilina did you ever apply for ground level housing with the New South Wales Department of Housing because Mr Bryant suffered from a disability that prevented him from climbing stairs? A. Yes we didn't want anything with stairs. Q. With respect to Mr Bryant why didn't want Mr Bryant want anything with stairs? A. Because he couldn't get up and down them I presume. ... Q. Why do you think he finds it difficult? A. Maybe from - I don't know. It's from what - this accident and also from the, the spinal - I don't know. Q. But you knew prior to the accident he found it difficult to climb stairs didn't you? A. I can't say. Q. You've told this court that prior to the accident Mr Bryant was pretty good didn't you? A. Prior to the accident? Q. Yes you were asked how he was functioning or what his medical condition was? A. He was all right. … Q. Yes and he complained of arthritis all through his body didn't he? A. Yes. … Q. But you're telling this court you can't remember which parts of his body had arthritis? A. I think he was riddled with arthritis. … Q. His condition was actually quite bad? A. Not bad as it is now. Q. But it wasn't good? A. I suppose not. Q. It's quite a different picture than the one you've painted for this court you understand? A. Suppose so, I don't know. Alls I know he's riddled with arthritis. …

13 Ms Aquilina was, in furthering her vagueness about the plaintiff's pre-accident condition, very evasive about whether the plaintiff limped before the accident when she said "I can't remember … Sometimes I can't even remember last month … I can't remember". Even though Ms Aquilina maintained the plaintiff was better before this accident than what he is now, she persisted in saying she had no memory of his condition beforehand. However, she did recall the plaintiff complained of headaches before the accident and in the year before the accident she agreed he most probably attended a hospital for treatment of a headache and dry retching.

14 Clinton Bryant, the plaintiff's son, gave evidence of his father's situation. Before the subject accident, Mr Bryant, who saw him weekly, described the plaintiff as being "stiff … soreness with his back problem. Not as agile as anyone I guess his age could've been, but not as severe as he is." Having known the plaintiff for 35 or 36 years, Arthur Smith was a friend who saw him weekly and remarked that "he had trouble moving, moving around and doing his job, but he consistently worked on a daily basis" although he had difficulty in "mostly walking … Actually pushing the lawnmower."

15 The clinical notes of the plaintiff from Dr Arnaudon's practice provided an insight into the plaintiff's background before the subject accident as to his medical condition from 1 February 2000. Conditions in the past medical history of a tinea infection in November 2000, hypertension in June 2004, chest pain in July 2004, stress in July 2004 and sciatica in November 2004 were noted. The plaintiff, on any view, attended Dr Arnaudon on a quite frequent basis with multiple complaints - there were forty-four consultations in the period of five years before the accident. Diagnoses made by Dr Arnaudon covered persisting frontal headaches, hypertension, neck pain, hip pain, back pain, arthritis, injured left knee from a fall, tinea infection, injured left foreleg from a falling pallet, left leg traumatic ulceration with throbbing and swelling, high blood pressure, pins and needles in hands and arms, right forearm warts, knee pain, right shoulder pain, soreness in right chest, insomnia, general chest pain, impotence, and back and left groin pain. Recurring conditions in the medical history concerned arthritis, headaches, hip pain, high blood pressure and right shoulder and neck pain. The notes showed the treatment given, including extensive medication, creams and ointments. Dr Arnaudon did not give evidence in the plaintiff's case and no report from him was available - in view of the knowledge he must have acquired about the plaintiff since February 2000, I consider that omission to be unfortunate in endeavouring to assess the impact on the plaintiff of the subject injury from the fall on the stairs in April 2005. One needs to have it in mind in viewing the medical evidence which was provided.

16 The resultant picture which emerges of the plaintiff is of a person who has been disabled for the past 25 years from a serious back injury, involving a spinal fusion, and who consequently has been unable to engage in full-time employment; modest work of a part-time nature has been possible to supplement the disability support pension to the extent of, say, 10 to 15 hours per week earning about $50 per week with Ms Aquilina's assistance with the work from time-to-time. Although admitting to the back problem and arthritis, the plaintiff, contrary to the clinical medical history, either did not admit or minimised his other problems to the point where he endeavoured to make them irrelevant or insignificant for present purposes. Ms Aquilina followed a similar course but where she relied on an inability to remember. Both Mr Bryant and Mr Smith did not really advance this aspect.

17 I consider the plaintiff's evidence as to his condition before the subject accident to require caution in its acceptance. I find that he was indeed seriously incapacitated for full-time physical work but where he had a capacity for minimal part-time work at his own pace. Continuing problems of some long-standing existed as concerning arthritic pain throughout his body, headaches, hip and back pain and pain in the right shoulder and neck radiating down into the arm and hand. Medication of a not insignificant amount with creams and ointments was required to manage his condition, including for blood pressure, and regular consultations with a general practitioner were necessary.

18 About 5.30pm on Friday 22 April 2005, the plaintiff was in the backyard of his residence when Ms Aquilina called him inside to get something. There was a flight of three concrete stairs leading to the rear door from ground level. As he sought to use the steps, the plaintiff described in this way what occurred: As I walked up the first step, then put my foot on it, the step repelled backwards, which I come - fell backwards. I grabbed, grabbed my hand and hit my head and come down on my back … it was not bolted, it was just glued … There is a rail either side, but very wide apart and the only one I could grab is the right-hand side … my bottom hit first, then I come straight back on to the mower, which I hit my head … Grabbed the railing and I couldn't, it just jarred my shoulder as I went back. I come straight back on my backside and come straight back and hit my head on the, the mower at the back of me [on a concrete surface].

19 Immediately after the fall the plaintiff said he noticed soreness in the right arm and shoulder but, as he said, "not extensive … wasn't worrying me as much as the head … [lower back] ached a little". As he lay on the ground the plaintiff felt "shaken up … sort of headachy and a bit wonky, sort of delirious I suppose". Ms Aquilina went to the plaintiff's assistance after he called her and took him inside where he said she "sat me in a chair and that's where I sat for two days" with his head feeling "very throbby and aching" so he took two Panadol tablets in the hope the pain would ease. Feeling upset in the stomach and with a dizzy feeling, the plaintiff for the next day or so stayed in the chair without going to bed and, on there being no improvement, took himself to Camden Hospital at about 8.00am on Sunday 24 April 2005. He was transferred that day to Campbelltown Hospital and then discharged home. He consulted Dr Arnaudon on Tuesday 26 April 2005 and the clinical notes recorded "fell backwards on loose step at home on Friday, tried to save himself grabbed rail but injured right shoulder, hit head on mower as he fell" - the notes indicated the reason for the visit as "concussion, right supraspinatus tendinitis, hypertension"; a further visit on 27 April 2005 with shoulder pain was recorded and, although no abnormality was detected, the notes stated "shoulder … still unable to easily abduct."

20 A number of coloured photographs were taken of the subject steps by Mr Smith the day after the accident on 23 April 2005 when he was contacted by either the plaintiff or Ms Aquilina. The photographs have been of much assistance in understanding the oral evidence of the plaintiff as to what occurred and of the structure and condition of the stairs. As Mr Smith said, when he took the photographs he noticed that the bottom step appeared to have been glued to the steel frame with nothing to indicate it had been bolted to the frame.

21 Although challenged as to what actually occurred, the plaintiff maintained the events and I have no reason to doubt his description of the mechanics of the fall. I accept the plaintiff's account.

22 On presentation to Camden Hospital on 24 April 2005, the plaintiff was seen in the Emergency Department and the problem was noted as: Head injury - States he fell from loose step last Friday, injured (R) shoulder and arm. States hit crown of head on lawnmower. States no loc but "saw stars". Still has pain (R) shoulder and arm and has strange feelings in head associated with lightheadedness and nausea. States has hypertension but not on medication.

23 The nursing assessment recorded "alert and responsive, GCS = 15 (a Glasgow Coma Score at this level is normal with full alertness). Feels nauseated. Has strange, throbbing feeling in head. No visual disturbances. Has pain in (R) shoulder and arm. Pupils equal and reactive to light." In view of the head complaints, the plaintiff was transferred by ambulance to Campbelltown Hospital where he had a CT scan of the head reported as showing no abnormalities and with no bleeding or lesion. On a diagnosis of "minor traumatic brain injury with concussion" and "(R) shoulder rotator cuff tear" and a pain score of six out of 10, the plaintiff was discharged about 12.30pm that day in the care of Ms Aquilina with a recommendation to see his general practitioner in a day's time.

24 When he attended Dr Arnaudon on 26 April 2005, the plaintiff reported he was "very achy in the head, my arms and whole body was very sore." Dr Arnaudon referred the plaintiff for an ultrasound which was done by Dr Michael Meyerson of Macarthur Diagnostic Imaging on 27 April 2005. The report of the lumbar spine stated "degenerative changes" and that of the right shoulder said: No fluid collections were noted about the right shoulder. No abnormality of the biceps or subscapularis tendons was noted. The supraspinatus tendon exhibited a homogeneous echo pattern. No impingement was demonstrated and no tear of the rotator cuff was noted. Some limitation of mobility however was noted on abduction. No other abnormality was detected.

25 The plaintiff complained to Dr Arnaudon of continued right shoulder pain on 19 May 2005 and he was then referred to an orthopaedic surgeon, Dr Chandra Dave, who he consulted on 4 July 2005. Dr Dave in a report of 21 July 2005 expressed the opinion "that he has some rotator cuff tendonitis and may have a small tear. I have organised for him to have an MRI scan at Liverpool Hospital. He may need some physiotherapy and some local measures for his shoulder. He may need some surgery for his fingers. I will keep you informed of further developments." However, there was no evidence of any such developments and there was no mention in Dr Arnaudon's clinical notes of any follow up by Dr Dave. The plaintiff said he saw Dr Dave only once at a time when the right shoulder was feeling pretty sore", although before the fall in April 2005 it was "not as bad", and the soreness has never gone away as it aches and restricts movements. The plaintiff said "I can get it (right arm) up shoulder high, hurts to get it past there."

26 With continuing headaches and sensations radiating down his arm, Dr Arnaudon referred the plaintiff to Dr David Rail, a neurologist, who saw him on a few occasions from February 2006 to April 2006. From the first consultation, Dr Rail thought the plaintiff's problems were cervical in origin and suggested a neck and scalp care chart with medication. By the final consultation, Dr Rail considered the plaintiff to be fairly stable with no further major problems; he was to be reviewed in a few weeks. However, again the evidence did not deal with any follow up treatment and Dr Arnaudon's notes made no reference to it. Nevertheless, the plaintiff said he had continued to experience headaches with no improvement.

27 On 16 February 2006, Dr Arnaudon referred the plaintiff back to Dr Giblin who saw him on 27 February 2006 and in a report to Dr Arnaudon, after referring to the fall in April 2005, commented: The plain x-rays of his hips shows that the left one has had it and needs a hip replacement. The CT scan lumbar spine shows a little bit of arthritis at 4/5, as you would expect being the level next to the fusion but there is no evidence that any surgery is necessary. In summary, it looks as though your patient needs a hip replacement.

28 The plaintiff said he was worried about any damaging effect to the spinal fusion from the fall and therefore asked to see Dr Giblin again to have the situation checked. He said his back felt worse after the fall than it had before. However, again the evidence was silent on any further report from Dr Giblin about a hip replacement, as were Dr Arnaudon's clinical notes, or as to Dr Giblin's opinion of the causation of the plaintiff's then complaints. At most, Dr Giblin in referring to the fall said "[e]ver since that time he has had pain in the neck going down his right arm but principally pain in the low back going down his left leg". It needs to be mentioned that from Dr Arnaudon's notes, as earlier recited, the plaintiff experienced such pain even before the April 2005 fall and the principal complaints since then concerned the headaches and right shoulder problems; but, of course, and as Dr Arnaudon's notes indicated, those complaints had been made even before the accident.

29 About a month or so after the accident, the plaintiff said he commenced to have difficulty in walking with a "pulling" feeling in his groin area which was more pronounced than what it was before the fall. He had difficulty in walking up and down stairs which started, as he said, about a month after the accident. As Ms Aquilina admitted, however, the plaintiff had had problems in using stairs for very many years, that would seem to be so because of either the arthritic condition or the spinal fusion, and that was the reason the application in 1995 to the first defendant sought accommodation in a house without stairs.

30 In terms of work since the accident, the plaintiff said he receives more help from Ms Aquilina. As to the sign erection for Starr Real Estate, he says he now does only two or three each week because "the market dropped off and I can't handle the work much now … I can't lift with my right arm"; with assistance from Ms Aquilina, his daughter, son and son-in-law, the plaintiff still does lawn mowing but only two or three jobs a week; and, because he "can't get down on my hands and knees and I can't get back up", the rubbish clearing activity has ceased.

31 A consequence of the injuries sustained in the accident was said by the plaintiff to be limitations on his activities in a domestic sense. He now relies on Ms Aquilina to assist him with personal hygiene such as dressing, washing, towelling dry, toileting and cutting toenails; each night she applies creams or ointments by rubbing his back and shoulders to relieve the pain. The plaintiff no longer does the housework he did before and the regular barbecues he cooked now occur only every few weeks. The main difficulty was described by the plaintiff in this way: I can't get down to my feet to get my socks on … I can't get down to tie laces up or things like that, dressing is like now all pull on stuff … I get them [shirts] on but with difficulty with my arm … it's hard to bend my arm back … I can get my trousers on but I can't put my belts on … [difficulties washing] round my private parts, like back and stuff like that … I cant' pull a towel around my back … I can't even wash my feet … Phina [Aquilina] cuts them [toenails] about every two, three weeks … I pull things out of the cupboard and go to move them across and they just drop straight out of my hand … [last dropped something (cup of coffee)] about two weeks, three weeks ago.

32 Medication in the form of Panadol and Panadeine Forte since the accident was said by the plaintiff to be a nightly occurrence to relieve the pain in his hip and back and for the headaches; tablets are continued for blood pressure and the arthritis.

33 The defendants' counsel tested extensively and in detail the plaintiff as to his comparative condition both before and after the accident. It may be said he did not fare all that well in that respect. For instance, in Dr Arnaudon's clinical notes an entry for 29 November 2004 stated - "left sciatica left leg gives way at times"; the following cross-examination ensued: Q. You'd had cause to complain to Dr Arnaudon not six months before this accident, about your left leg giving way on occasions? A. No I can't remember that. … Q. Mr Bryant if you were having trouble with your left leg giving way on occasions, six months or so before this accident, that is something you would expect to remember, isn't it? A. Not when you've got as many aches and pain, you don't' sort of, you take them in a bit of thing. Q. Was the constellation of your disabilities such that six or so months before this accident, you wouldn't have attached much significance to your left leg giving way on occasions? A. It didn't worry me too much, I just went down to get it checked out, I was walking, I'd be able to handle it all right, but I just wanted it checked. … Q. Mr Bryant, did you on 29 November 2004 attend Dr Arnaudon complaining of left sided sciatica and your left leg gave way at times? A. I went to Dr Arnaudon, yes, I complained about my leg and if I can remember right, I remember he sent me I think for x-ray …

Q. I'm not asking you where he sent you, Mr Bryant, I'm asking you about complaint. Let me break it down for you so it's a bit easier. Did you see Dr Arnaudon on 29 November 2004 and tell him your left leg gave way at times? A. I said I remember going down there. I had trouble with my leg. I said it now and again give me a bit of trouble so he checked it out and I said it was giving when I walked now and again. Q. Mr Bryant, do you have some problem with that question which I've now asked six or seven times? A. No I don't, I'm just … Q. Well please answer it, sir. A. I am trying to answer it. Q. It's a simple proposition. You know what your leg giving way is, don't you? A. Yes. Q. It's when you lose control of it, that's as you understand it, isn't it? A. It just collapsed a couple of times I suppose - - - Q. Well please, just follow my question. Did you on 29 November 2004 see Dr Arnaudon and complain to him that your left leg gave way at times - are you able to answer that for me sir? A. I went down and seen him about my leg, which I had trouble with, and I asked him, and that's all I can - when I walked it just gave away now and again, yes. I suppose I - and he sent me for x-rays. That's all I'm saying. Q. Do you wish to give a direct answer to the question, Mr Bryant? A. Well that's all I can say. I went down because I was worried about my leg. Q. Do you feel if you give a direct answer to the question, it may not help your case? A. No, I've got no worries about that.

34 Very many other instances occurred during cross-examination on this aspect of the plaintiff's comparative condition which, in my view, showed a reluctance on his part to concede prior problems of any real significance so as to direct his present condition to the subject accident. Again, by way of illustration, the plaintiff gave evidence that sitting generally was an activity which caused his back to "flare up". Yet, in cross-examination this evidence emerged: Q. Did you - going back to the accident, spend two days in a chair before you sought any medical attention. Is that right, the very activity that causes your back to really flare up, isn't it? A. (no verbal reply). Q. Sitting down? A. Well with the headache and my shoulder what it was, I wasn't very proud of getting up and running around. Q. Sitting down for long periods is the very activity that causes your back to flare up, isn't it? A. It flares up whether I'm laying down, sitting down, walking around. Q. You don't want to answer my question directly, do you sir? A. Yes, I'll answer it. Q. Let me try a third time - sitting down is the very activity that causes your back to flare up, isn't it? A. Not always. Q. Not always? A. No. Q. You're not going to tell me that in these two days you spent in the chair after falling on your backside, your back wasn't - didn't flare up, are you? A. It flared up, it flared up … Q. Flared up? A. … when I lay down, it flares up when I stand up. Q. And while you're in these chairs for the two days before you went to the hospital, you were no doubt wondering whether anything had come adrift in the surgery that you'd had over 20 years before for your back, weren't you? A. That was correct. Q. And so when you went to Camden Hospital and then to Campbelltown Hospital, one of the things uppermost in your mind was the condition of your back, wasn't it? A. No, not at that stage it wasn't. … Q. Well you sat using a chair and you said this morning: "That's where I sat for two days". Remember saying that? A. Yes. … Q. And you also said not more than a few hours that sitting for long periods really causes, your back to play up, didn't you? A. Well it was either lay down and be sick in bed … Q. I'm not asking you about that now, I'm asking you about sitting down generally is one of the activities that causes your back really to play up … A. Yeah … Q. … if you sit down for a long period. Is that right? A. I get up, I lay on the lounge most of the time. Q. Is that an activity sir that was evident to you from the time of this accident, that is, sitting down for lengthy periods causing your back to - causes your back to play up? A. I can sit down for little times. I lay down most of the time. I lay down on the lounge because I - back aches.

35 A submission was put for the first defendant that the plaintiff's evidence as to the change in his condition could not be relied upon as it was internally inconsistent and in conflict with the evidence of other witnesses called in his case. His son, Mr Bryant, gave evidence that for the first month after the accident the plaintiff struggled greatly in standing and walking and then improvement occurred. However, the plaintiff earlier said in evidence that it was not until about a month or so after the accident he started to have difficultly in walking. Counsel for the second defendant, supported by the first defendant's counsel, put: The answers the plaintiff gave were coloured throughout his evidence by a refusal to give answers directly, to minimise or refute either the existence and/or the extent of his pre-existing difficulties; to protest a worsening of general condition after the accident at every opportunity and on occasions without the opportunity arising and evasiveness in answering questions.

36 Overall, I think there is some force in counsel's approach. I detected throughout the plaintiff's evidence an endeavour to maximise the subject accident as affecting his present condition but I think it to be clear that even before it he had significant problems with his physical condition - I have referred earlier to this aspect in looking at the plaintiff's background, particularly in respect of headaches, shoulder, back, hips, neck, arms and arthritis generally in his body. This is not to say there was no injury sustained from the fall in April 2005. I think, on the plaintiff's evidence, the records of Camden Hospital and Dr Arnaudon's clinical notes, that there was injury to his head, right shoulder and right arm; after all, the fall onto his back and head from the collapsing step was a traumatic incident, particularly for a 60-year old man in his then condition. However, the degree of injury suffered, I am satisfied, has been greatly exaggerated by the plaintiff with a minimising of his pre-existing condition and answers given to best suit his case. I will return to this after considering the medical evidence. In the meantime, however, I note the plaintiff's manner in entering and leaving the witness box as being heavily marked and faltering; counsel asked whether that was typical of the way he walked since the accident and he responded - "Pretty near, yes."

37 Informative evidence of the plaintiff's condition in a present sense was given in a video film of his recreational and work activities on 28 March 2007, 10 April 2007 and 16 August 2007 obtained by a private investigator for the second defendant. The film covered a period of three hours and 42 minutes of which about three hours was viewed. Counsel in relying on it submitted, without suggesting it was decisive, that the film provided a "window of opportunity" to see the plaintiff in a reasonably recent setting doing things which he said in evidence he either could not do or had difficulty in doing. For myself, I found the film most helpful in better understanding and resolving any doubts existing from the other evidence. I agree, of course, that the film cannot in itself be decisive and some caution needs to be given, but it was, I think, instructive having in mind the physical limitations said by the plaintiff to exist.

38 The events on 28 March 2007 covered an early 6.13am start by the plaintiff as he bent over from the waist putting air in the four tyres of his car and filling it with petrol at a service station in Camden; as he did so, he appeared to walk normally without impediment. About three hours later, the film resumed showing the plaintiff outside Gosford Hospital where he was visiting an ill friend; again, he appeared to walk normally, albeit slowly; and, relevantly, this was after a drive from Camden where the plaintiff's earlier evidence was that now he was only able to drive for short distances. From about 10.15am the plaintiff was shown in Gosford Leagues Club sitting and standing playing the poker machines with his right hand, which was the hand he had problems with in even opening a screw top bottle and holding things, and walking in a normal gait around the premises until he left about 4.20pm. In the Club's car park he was seen to walk in a normal fashion to his car which he then drove.

39 Gardening activities on 10 April 2007 from 8.54am showed the plaintiff starting a "whipper-snipper" with his right hand by pulling the cord and using the machine as he walked in a forward leaning way trimming the edges of the nature strip along the kerb. As he did so, he reached down to the ground to pick-up things and then placed the machine in his utility truck. A rake was then used to sweep up clippings from the nature strip lawn with quick movements of the arms and a rubbish bin was pulled from inside the property; the clippings were collected onto the rake as he leaned down and put them into the bin. The gutter was swept with the rake and the clippings picked up and put into the bin. During those activities, the plaintiff appeared to have no difficulties and he walked normally although with a very slight but unpronounced limp. Significantly, he was able to bend over, reach to the ground, use his arms to make regular quick movements and lift the machine onto and off the truck. Three lawnmowers and real estate advertising signs were seen in the truck. Filming on this occasion ceased at 10.28am.

40 On 16 August 2007 from 7.20am the plaintiff was filmed using a lawnmower and whipper-snipper at premises at Bradbury. He was seen lifting the machines off and onto the tray of the utility truck and bending over filling them with fuel. The whipper-snipper was used with a forward leaning motion to trim the garden edges and the lawnmower was pushed by the plaintiff, usually with the right hand and guided by the left hand, around a lawn with some twists and turns; the grass catcher when full was emptied by him using his right arm. Again, it appeared the plaintiff had no impediments as he did the work and walked normally other than for a very slight limp. Ms Aquilina was seen sweeping the driveway. This activity ceased at 9.51am.

41 Accepting the video evidence in the manner I have suggested, nevertheless it may be said that it disclosed an objective view of the plaintiff at odds with the description of his condition and disabilities both domestically and in a work situation. Clearly, albeit with a slight limp, he walked with a normal gait pushing and pulling a lawnmower, leaning forward using a whipper-snipper, bending down to pick-up rubbish and objects from the ground, raking lawns, clearing kerbside gutters, driving from Camden to Gosford and return, bending down to inflate car tyres and sitting for a protracted period playing poker machines. It is difficult to accept his complaints of inability to attend to his personal needs, such as washing, showering, drying, dressing, cutting toenails and bending down to put on socks, shoes and to tie laces. Certainly, the apparent difficulties shown by the plaintiff's presentation in court were wholly inconsistent with his movements as shown on the video. In terms of work capacity, and given his evidence it has been reduced by about one-half since the accident, it is also difficult to accept he does not have a continuing capacity to mow lawns and erect real estate signs on a part-time basis as he did beforehand.

42 What compounds this difficulty in accepting his complaints was the plaintiff's evidence directly contrary to what the video disclosed, as follows: Q. Not much wrong with you is there Mr Bryant? A. There is a lot wrong with me. Q. You start the lawnmower right handed … A. I start it … Q. … is that right? A. … right or left handed. … Q. Is that right sir, that you've got to overcome the resistance of the compression of the motor as transmitted through the cord as you're pulling it? A. No because they've got the easy valves on them, which allows them to start very easy. … Q. Do you ever rake up the lawn or leaves or … A. No. Q. … anything of that nature? A. No. Q. And then you put the lawnmower back on the truck? A. Yes I've got to get it up on the truck, with great difficulty. Q. Mr Bryant difficult or not, that's what you do isn't it? A. Because if I didn't do it, I would not survive because of the accident. … Q. Now this pushing of the lawnmower is a two handed job isn't it? A. I push it with, mostly with my left hand and just rest my right arm on it. Q. You use your right arm to push don't you? A. I use my left hand and steady it with the right, yes. … Q. What's the problem with your socks? A. I can't get down to get the socks over my toes. … Q. What's the furthest distance or the longest distance that you've driven since the accident? A. I've driven about an hour and a half, that'd be, yeah about an hour and a half down towards Wollongong. Q. When was that? A. About, about four, five, three or four weeks ago now we pulled up and sat down because I had to get out of the car. Q. How long have you done that trip? A. I hadn't done it for ages. … Q. Have you driven any similar distances? A. No, well up to Penrith once, that was, yeah. Q. When you drove down to Wollongong, how did you feel at the end of the trip? A. I was aching.

43 That evidence was given before the video was shown and the inconsistencies emerging were patent.

44 As the case was eventually argued from the evidence as it developed, there was no real issue that the stairs were defective when the bottom step collapsed causing the plaintiff's fall and without any fault on his part.

45 The defective condition was confirmed by the unchallenged expert evidence of Mr Ian Burn, a consulting engineer, who inspected the stairs at the premises at Camden on 14 February 2006. He concluded in a report dated 6 March 2006 that "[t]he primary cause of the accident is the failure to properly secure the replacement step treads to the steel stringers below during routine maintenance". In a supplementary report of 13 December 2006, Mr Burn said "[t]he use of glue to secure stair treads is poor practice as only mechanical securing of treads will ensure treads do not come free during use."

46 Although the defendants did not admit the repairs to the stairs a few months before the accident, they led no evidence to otherwise contradict the oral evidence of the plaintiff and Ms Aquilina that the repairs had been effected or the documentary evidence tendered by the plaintiff from the business records of the first defendant showing it had arranged with Spotless Services Pty Ltd for the repair work to be done and that it was indeed done by the second defendant.

47 What was significant, in my view, was the absence of any evidence from either defendant as to the business in which the second defendant was engaged and the qualifications and competency of the person from the second defendant who actually carried out the work. What the records simply disclosed was that the repairs were completed on 12 January 2005 at 9.00pm to "renew pre-cast concrete tread only - up to 1.1m long" and that the cost was $182.90.

48 After the accident, the second defendant was recalled to again repair the stairs and did so on 27 April 2005 at 8.15am as "minor repair work". There was no evidence that the first defendant inspected the stairs after either repair was done. However, Mr Smith gave evidence that he inspected the stairs after the second repair work and noticed the addition of bolts to secure the concrete treads to the frame.

49 I accept that the subject stairs at the time of the plaintiff's accident were defective in that the concrete treads were only glued to the frame and not bolted so as to be a risk to the safety of persons using the stairs. That condition was brought about by the first repairs conducted by the second defendant in January 2005 with the knowledge of the first defendant. The first defendant failed to make any inspection of the stairs after such repair work to assess suitability of the work. There was no evidence as to the qualifications or competency of the persons who carried out the repairs.

50 The second defendant as the repairer of the stairs did not make any submissions against it being found liable to the plaintiff. I think the concession was properly made on the evidence. I find that the second defendant had a duty of care to the plaintiff to effect the repairs to the stairs in a manner as would reasonably secure the safety of a person, such as the plaintiff, in using them. That it failed to do by only gluing the concrete treads to the frame and not securing them with bolts. It thereby breached its duty and was negligent.

51 As to the first defendant as the landlord of the premises, it acknowledged it had a duty of care towards the plaintiff for the safe condition of the premises. I agree. In Parker v South Australian Housing Trust (1986) 41 SASR 493 at 516-517, King CJ considered the supposed rule in Cavalier v Pope [1906] AC 428 against any such duty of a lessor towards a member of the tenant's household to be "inconsistent in principle with the modern doctrine of liability for negligence as it has developed since Donoghue v Stevenson [1932] AC 562." As Gaudron J commented in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 358: It cannot, in my view, be doubted that the law has now developed to the point that, so far as concerns premises leased for residential purposes, the relationship between a landlord and those who constitute a tenant's household is one that gives rise to a duty on the part of the landlord to take reasonable care for their safety by putting and keeping the premises in a safe state of repair.

52 The majority of the High Court in Northern Sandblasting declined to follow Cavalier v Pope and, in general terms, stated the position consistently with what Gaudron J said.

53 However, although here accepting the existence of a duty, the first defendant submitted that the nature of the relevant duty owed to the plaintiff in fact had been discharged by it engaging a qualified contractor, the second defendant, to repair the defective stairs and that there was no independent duty on it to inspect the stairs after they were repaired to ensure their safety. Thus, as the submission went, liability for what occurred to the plaintiff from the collapsing step was avoided. Even so, counsel for the first defendant accepted that if it be found it did not take reasonable care in effecting the repairs then no further submissions against liability being found were made.

54 Whether reasonable care has been afforded seems to me to depend upon a factual finding in the circumstances of the case concerned. In Northern Sandblasting (188 CLR at 343), Dawson J, as to which Gummow J agreed, described the nature of the duty of care as being "that which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the respondent. The nature and extent of the duty in the particular instance depends upon the circumstances of the case". This aspect from Northern Sandblasting arose for consideration by the High Court in the later case of Jones v Bartlett (2000) 205 CLR 166 where Gummow and Hayne JJ cited (at 213-214) the relevant principle with approval and then dealt with this notion of keeping the premises in a safe state of repair, that is reasonably fit for their purpose, by what constitutes a dangerous defect. Their Honours (at 216-217), by reference to Austin v Bonney [1999] 1 Qd R 114, gave as an obvious example of a dangerous defect stairs that could not bear the weight of a person and then reasoned, in determining a landlord's liability, the further inquiries of taking reasonable care to ascertain defects and the exercising of reasonable care to remove them or make the premises safe. It was as to those latter aspects the first defendant relied in this case. Reliance was placed on Trevor Howse Associates Pty Ltd v Dessmann & Anor; Quadrant Research Services Pty Ltd v Dessmann & Anor [2003] NSWCA 148 in para [61] and Gaskell v Denkas Building Services Pty Ltd & Ors [2006] NSWSC 632 in para [211].

55 It may be given that at common law a person generally is not liable for the negligence of an independent contractor: see Quarman v Burnett (1840) 6 M & W 499; 151 ER 509; Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48; Northern Sandblasting 188 CLR at 366; Scott v Davis (2000) 204 CLR 333 at 406 in para [218]; and Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8 in para [82]. However, insofar as the first defendant here being vicariously liable for the acts of the second defendant does not seem to me to be the question. The real issue is whether it is liable in its own right as the landlord in piling to keep the subject premises in a safe state of repair - that is the question, in my view of the circumstances and of the nature of the duty cast upon it. That enquiry takes one back to whether what it did, or did not do, was reasonable in remedying a defective flight of stairs: see approach of Gummow and Hayne JJ in Jones v Bartlett (205 CLR at 219-221 in paras [183]-[194]). As Gummow and Hayne JJ concluded in Jones v Bartlett (205 CLR at 22 in para [197]) as to the landlord's duty to a party other than the tenant: [197] Nevertheless, the duty of the landlord owed to these third parties, in many cases, will be narrower than that owed to them by an occupier such as a tenant. An example of facts not involving the placing of a duty on the landlord is a slippery floor … ; an unsecured gate to a fenced swimming pool may be another. The duty of care of the landlord to the third party is only attracted by the presence of dangerous defects in the sense identified earlier in these reasons. These involve dangers arising not merely from occupation and possession of premises, but from the letting out of premises as safe for purposes for which they were not safe. What must be involved is a dangerous defect of which the landlord knew or ought to have known.

56 In the present case, the first defendant was advised on or about 23 December 2004 by the tenant, Ms Aquilina, that the rear steps to the house were, as the first defendant's records showed, "falling apart". It arranged for repairs through Spotless Services Pty Ltd, which eventually were performed by the second defendant on 12 January 2005. There was no evidence the first defendant did anything to ascertain the repaired state of the stairs or that the defect had in fact been remedied. It clearly knew about the problem. But, on the expert evidence of Mr Burn, the remedy taken by the second defendant of gluing the concrete treads to the frame was "poor practice" and, after about three months, the lower tread collapsed under the plaintiff's weight.

57 In my view, the first defendant ought to have known of the problem of the defective stairs in April 2005 after being informed about it in December 2004 and should have taken steps to properly remove the defect which was clearly a detriment to safety. That it failed to do so was negligent and I find accordingly.

58 Apart from the medical evidence to which reference already has been made, the plaintiff relied on the opinions of Dr Peter Conrad, a surgeon, who examined him on 13 December 2005 and 6 February 2007. In a report dated 16 December 2005, Dr Conrad concluded that the plaintiff as a result of the accident on 22 April 2005 aggravated a previously injured back and also sustained a neck strain and a right shoulder strain. He added: He is well motivated and he is struggling to continue his lawn mowing business of fifteen hours per week, with the help of his wife. It is highly likely that he will need to give this up in the near foreseeable future. It is not likely that he will be able to do any sort of physical work in the future. His prognosis for recovery is poor.

59 Dr Conrad assessed permanent impairment of the plaintiff's back at 25 per cent referable to the April 2005 accident plus 10 per cent to the pre-existing condition; related also to the accident he made an assessment of 20 per cent permanent loss of efficient use of the left leg, 25 per cent permanent impairment of the neck and 25 per cent permanent loss of the efficient use of the right arm due to the shoulder strain.

60 In a later report of 6 February 2007, Dr Conrad referred to the plaintiff's pre-existing pain and stiffness in the left hip and thought that the accident had aggravated a necessity for a hip replacement operation. Otherwise, the report was consistent with the first report and with the view that the plaintiff would need to give up completely the lawn mowing activities unless continued assistance from his wife and children was available. Continuation on the invalid pension was seen as necessary. The percentage impairments earlier assessed were confirmed.

61 The difficulty in accepting Dr Conrad's conclusions stems from the fact that they were clearly based on an incomplete clinical history of the plaintiff's pre-existing complaints. For instance, there was no mention of the plaintiff's long-standing arthritis throughout his body, left-sided sciatica, widespread and recurring hip problems, right shoulder and neck pain over some years and recurrent headaches requiring medication. Of some concern too was Dr Conrad's notation in the first report, no doubt from the plaintiff's advice, that he had not worked since the accident and then, from the second report, that he has had to keep working even in pain for fear of losing the business. I have to say that the observations of the plaintiff from the video are not consistent with his history to Dr Conrad.

62 To make clear the point about the nature and severity of the plaintiff's pre-accident condition, in addition to the references earlier made from the notes of Dr Arnaudon and the reports from Dr Dave, Dr Rail and Dr Giblin, reports from Dr Vivian Fernandes, a consultant in nuclear medicine and a general physician, of 17 May 2000 and 12 November 2004 were provided following referral by Dr Arnaudon. Dr Fernandes reviewed bone scans of the plaintiff's right hip, right thigh and back taken at those times. The results of both scans were similar and she made a clinical assessment with this conclusion in the second report: Today's scan findings are consistent with osteoblastic activity in the left hip joint lumbar and SI joint. The most likely cause is arthritis. There is also left sacro-ilitis, this is new since 2000. There is facetal joint reaction in the lumbar spine, which was present previously and arthritic reaction in the mid-thoracic spine. There is also arthritic reaction in the knees and in the small joints of the feet. There are no features elsewhere to suggest sinister pathology. I would suggest x-ray correlation to assess the hip finding to confirm benign pathology.

63 On 1 June 2006, the plaintiff was examined at the first defendant's request by Dr Roger Pillemer, an orthopaedic surgeon. Significantly, Dr Pillemer reported that the plaintiff informed him "he has had 'a bit of arthritis of my shoulders', but denies any previous problems with his neck or left hip region in the past". Also, Dr Pillemer stated the history given by the plaintiff referred to the April 2005 fall and that "he has had significant ongoing problems since then" so that "he has been unable to get back to this (lawnmowing), and has had to close up the business, but later he mentioned that he had mowed a lawn two weeks ago". Dr Pillemer noted the plaintiff's main concerns as being with his left buttock and hip area going down into the groin and left thigh as far as the knee, headaches daily, discomfort in the neck region, right shoulder problems; otherwise, his health was good. Arthritis was not mentioned. Dr Pillemer's conclusions appeared to be guarded and he thought the left hip problems were due to an underlying idiopathic osteoarthritic condition; a soft tissue injury to the neck was suspected from the accident but it was said that that was not then causing much of a problem. He had difficulty in attributing any replacement need of the left hip to be due to the accident.

64 Dr John O'Neill, a consultant neurologist, saw the plaintiff for the second defendant and reported on his findings on 7 July 2006 and 31 May 2007. After taking a history of events, hearing of continuing symptoms and making a clinical examination, Dr O'Neill thought the plaintiff to be an "unreliable witness" and he was "very suspicious that Mr Bryant is not telling the truth with respect to the apparent reduction in his work and domestic capabilities following the fall on 22.4.05. Certainly today his hands showed evidence of recent physical work". In the second report of 31 May 2007, Dr O'Neill had access to x-rays, CT scans and Dr Arnaudon's notes of the plaintiff and concluded: In short, medical documentation would indicate that Mr Bryant sustained a minor closed head injury in the fall on 22 April 2005 and at that time he also injured his right shoulder. Right shoulder pain was the sole complaint of sequential subsequent visits to the GP on 27 April 2005 and 19 May 2005. It was again the subject of complaint at visits on 12 August 2005 and 27 September 2005. 27 September 2005 was the first occasion that Mr Bryant made any reference to neck pain or backache. All of this occurred in the setting of pre-existing "arthritis". It is my view, therefore, that the only possible continuing symptom induced by the fall of 22 April 2005 was right shoulder pain - itself occurring in the setting of pre-existing arthritis. There is no evidence from factual data that the fall of 22 April 2005 gave rise to a left hip problem and it certainly did not aggravate pre-existing low back problems.

65 Dr James Bodel, an orthopaedic surgeon, examined the plaintiff on 10 July 2006 and wrote a report that day. Dr Bodel opined that from the fall the plaintiff "suffered a soft tissue injury to the neck and right arm, the lower back and left hip." This conclusion was expressed: The fall has probably aggravated an underlying degenerative change but I see no definitive clinical indication that he has suffered any major structural damage as a result of the fall. I note that he has been in receipt of a disability support pension for about 20 years because of a spinal injury and spinal fusion and clearly he was severely incapacitated at the time of his fall.

66 After reviewing the radiological evidence and Dr Arnaudon's notes, Dr Bodel provided a further report dated 29 May 2007 in which he concluded: The material indicates that this gentleman has had the intermittent symptoms in the neck and headaches, back and hip pain prior to his fall. The left hip is due to arthritic change which is not related to the fall. The right arm problem in relation to the right shoulder with clinical evidence of tendinitis is probably due to the fall. The documentation does not really cause me to alter the assessments previously given in this circumstance.

67 It will be apparent from my earlier comments that I share Dr O'Neill's concern as to the plaintiff's reliability as a witness with a suspicion about the accuracy he gave of his work and domestic activities. Dr Conrad aside, the remaining medical evidence did not support the plaintiff's case of continuing serious effects from the fall on his capacity. Dr Conrad, as I have said, was hindered in his approach by an incomplete history from the plaintiff of his medical history and the reality of his present condition. I prefer the views stated by the other practitioners.

68 I conclude that in the fall the plaintiff suffered minor injury to the head and soft tissue injuries to the back, hip, neck and shoulder of an aggravating nature to his pre-existing condition. Certainly, any need for a hip replacement is not accident induced. To that extent, the consequences of the injuries in terms of continuing symptomatology as affecting his work and other activities has ceased so that, essentially, his present condition accords with his pre-accident condition which has wholly subsumed it.

69 I am satisfied that the plaintiff grossly exaggerated his condition. The objective video evidence was quite inconsistent with his expressed complaints and presentation in court; the other evidence from Ms Aquilina, Mr Bryant and Mr Smith did not, in my assessment of it, cogently indicate otherwise. Any limitations from the accident on the plaintiff's physical capacity have been now overcome.

70 The findings thus made involve a context of traumatic injury to a 60-year old invalid pensioner with a pre-existing medical condition which had severe limitations for his work and daily living activities. The accident injuries were of a minor and soft tissue nature and resulted in transient symptoms which have since ended so that the plaintiff has been restored to his pre-injury condition. I turn to assess the quantum of any damages.

71 The plaintiff's counsel made claims in relation to non-economic loss of 30 per cent of a most extreme case, past and future out-of-pocket expenses, past and future economic loss based on lost earnings of $50 per week, interest on economic loss and past and future gratuitous domestic care of 10 hours per week. The resultant claim was for damages of $298,382. I will shortly deal with each in turn.

72 Non-economic loss: In the context as I have found it, the plaintiff's claim is simply well overstated. I think an appropriate assessment would be in the range of 8 to 10 per cent of a most extreme case. As that does not meet the 15 per cent threshold prescribed by s 16(1) of the Civil Liability Act no damages for this element may be awarded.

73 Past and future out-of-pocket expenses: The claim for the past was $2,509 and, based on that as a guide, $9,690 for the future. The mathematics of the past expenses were agreed in terms of the cost incurred for medication but the causal relationship to the accident was an issue. Indeed, there was no evidence as to those expenses incurred other than the plaintiff's assertion but where no distinction was made as to the expenses incurred for his pre-existing condition. In the result, counsel for the defendants acknowledged that justice would be done if one-half of the claim for the past expenses was allowed. I think that is fair and, so, I will allow $1,254.50.

74 For the future, there is no real evidence of a continuing need for medication, creams or ointments referable to the accident. In light of the finding that the consequences have ceased there is no basis to allow for this future element.

75 Past and future economic loss: According to the plaintiff's evidence, a claim of $50 per week was made for the past and for the future an amount of $25 per week until his normal retirement age of 65 years on 25 May 2009. The evidence of the amount and duration of lost work-time after the accident was virtually non-existent, although one may accept some interruption occurred for a relatively short period. I consider some consideration must be allowed for this element. I propose to allow $50 per week for a period of 52 weeks and $25 per week for a further 52 weeks, a total of $3,900. No amount thereafter is justified.

76 Interest on economic loss: There is no statutory inhibition in the Civil Liability Act in allowing this claim. However, in light of the state of the evidence supporting the economic loss claim I exercise discretion against allowing interest. I think the position is reasonably met by the actual loss I have assessed.

77 Domestic assistance: This was by far the major claim made by the plaintiff being based on 10 hours per week at $28,060 for the past and $148,580 for the future. A summary of the evidence showed that Ms Aquilina quantified her care of the plaintiff after the accident as continuing at nearly eight hours a week and the plaintiff's quantification was 17 and one-half hours per week. Counsel took a mid-point of 10 hours per week. I have referred earlier to the aspects comprehended within this claim as being in respect of dressing, washing, drying, cutting toenails, applying creams and ointments, cooking, cleaning and driving.

78 Consistent with my views about the plaintiff's evidence generally, I think this claim for gratuitous domestic care was very much exaggerated, even fanciful. Ms Aquilina's poor and deficient memory did not assist the plaintiff's case. Certainly, there was no medical or other evidence to support it and the defendants strongly resisted the claim. Having in mind the threshold under s 15(3) of the Civil Liability Act of six hours per week and for six months, I am not satisfied the plaintiff has established a case for domestic care damages.

79 Summary: The damages I would allow as against both the first and second defendants in favour of the plaintiff are $1,254.50 for past out-of-pocket expenses and $3,900 for past economic loss. The total is $5,154.50.

80 There should be a verdict for the plaintiff against the first and second defendants in the amount of $5,154.50. There were no claims as between the two defendants for contribution or indemnity. I will hear the parties on costs before making final orders.

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Trade Practices Act 1974(Cth)

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