Fine v Geier [2003] QSC 73

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS - Landlord and Tenant - Where Fire Broke Out in a Unit - Where Bars over Window Preventing Escape - Where No Smoke Detectors - Where No Firefighting Equipment - Where No Instructions as to what to do in the Event of a Fire

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - Statutory Duty of Care under the Residential Tenancies Act 1994 (Qld) - Whether Premises were in Good Repair - Whether Premises were Fit for the Tenant to Live In - Standard of Reasonableness

TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - Where Plaintiff had made Inconsistent Statements on the Cause of the Fire - Where Plaintiff and other occupant had been Smoking Cigarettes - Where Plaintiff had Injected Himself with Heroin on the Night of the Fire - Where Insufficient Evidence to Prove the Cause of Fire on the Balance of Probabilities

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS IN TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - GENERALLY

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS IN TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - Where Plaintiff Failed to Disclose All Income to Taxation Authorities

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS IN TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - Where Plaintiff Suffers from a Drug Addiction and Hepatitis C

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS IN TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - NON-PECUNIARY DAMAGE - PAIN AND SUFFERING - LOSS OF AMENITIES OR CAPACITY FOR ENJOYMENT

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS IN TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - Griffiths v Kerkemeyer claim - Where Conflicting Evidence as to Amount of Time Spent Caring for the Plaintiff

Building Act 1975 (Qld), s 58

Northern Sandblasting Pty Limited v Harris [1997] HCA 39; (1997) 188 CLR 313, applied

Jones v Bartlett (2000) 205 CLR 166, applied

NSW Land & Housing Corporation v Watkins [2002] NSWCA 19, applied

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, applied

Phillis v Daly (1988) 15 NSWLR 65, applied

Bond v Weeks [1999] 1 Qd R 134, applied

Giorginis v Kastrati (1988) 49 SASR 371, applied

Nominal Defendant v Littlewood, NSW Court of Appeal, CA 203/79, 21 August 1980, Hope JA, Reynolds JA, Hutley JA, unreported, noted

[1] WILSON J: The plaintiff claims damages for personal injuries sustained on 19 September 1998. He has brought his claim in negligence and breach of statutory duty.

[2] The defendant Alfred Geier and his wife (who has since died) owned a block of eight home units in Orleigh Street, West End, Brisbane. There had previously been a house on the property. They had built the units in 1971 and owned them since then. The plaintiff was the lessee of unit 8.

[3] It was a brick building of three levels: the ground floor was taken up with car parking, and then there were four units (in a row, one behind the other) on each of the next two levels. Unit 8 was at the back of the top level. Access to the top level was via a common external stairway. There was then a balcony which ran the length of the western side of the building. The door to unit 8 opened off that balcony.

[4] Unit 8 consisted of a central hallway, and four rooms off it. There were two bedrooms at the northern end of the unit; the main one was on the eastern side (farther from the entrance door) and the other was adjacent to the long balcony on the western wall of the building. The bathroom was opposite the second bedroom (ie in the south-western corner of the unit), and a combined lounge/kitchen occupied the south eastern part of the unit. There was a small external balcony outside the lounge, which was accessed by a sliding glass door.

[5] There was a synthetic (and flammable) carpet on the floor.

[6] There were sliding windows in the main bedroom, the second bedroom and the bathroom. Those in the second bedroom and the bathroom opened on to the common balcony. There was a sheer drop from the main bedroom window to a concreted area on ground level. The window in the second bedroom was fitted with security bars, which covered the whole width of the window and were bolted into place at four points in the brick wall. They could not be opened or removed (except with an implement such as a crowbar). The bathroom window was small and high - its total length was 1.9 metres and its bottom sill was 1.56 metres above the floor.

[7] On 19 September 1998 there was a fire in unit 8. The plaintiff escaped through the main bedroom window, from which he dropped to the concrete below. He was injured when he hit the concrete. His flatmate Grant Ellem perished in the fire. Firefighters found him in the bathroom, overcome by the smoke. They were unable to revive him.

[8] The action was brought against both Mr and Mrs Geier. She died before trial, and I ordered that her name be removed from the proceedings, and that the proceedings continue against Mr Geier only.

[9] In his amended statement of claim (filed by leave on 3 February 2003) the plaintiff alleged -

"2. At approximately 3.00 a.m. on 16 19 September, 1998:-

(a) the Plaintiff, who had been asleep in his bedroom in the unit, was woken up by the smell of smoke coming from the living room area of the unit;

(b) the Plaintiff went into the living room area to the doorway and opened the door and saw that the lounge room area was filled with thick black smoke to approximately a metre from the floor, as well as flames which were blocking access to the balcony area;

(c) the Plaintiff crawled on his hands and kneed knees to the front door of the unit and attempted to open it but it was stuck;

(d) the Plaintiff then attempted to exit the unit via the window of Grant Ellem's bedroom but he could not as there were bars bolted to the outside of the window;

(e) the Plaintiff then attempted it was impossible to exit the unit via a the small window in the bathroom of the unit however the Plaintiff was unable to open the window to a sufficient extent to allow him to climb out of the window because it was too small and too high;

(f) the Plaintiff re-entered his bedroom and jumped from the window of his bedroom to the ground three stories below, thereby sustaining personal injuries ("the incident").

3. The incident and its consequences were the result of the negligence and/or breach of statutory duties of the Defendants, particulars whereof are as follows:-

(a) Failing to ensure that electrical fittings located in the unit were reasonably safe and did not pose a fire hazard;

(b) Failing to provide any or any reasonable means of escape from the unit in the event of a fire and in particular:-

(i) Failing to ensure that the front entrance of the unit was of a construction such that it would not become stuck in the event of a fire;

(ii) Failing to provide a means of unlocking, opening or removing the bars on the window to Grant Ellem's bedroom from inside the unit;

(iii) Failing to provide any fire escape, staircase or ladder for use by occupiers of the unit in the event of a fire;

(iv) Failing to provide any or any adequate instructions to tenants as to the procedure for escape from the unit in the event of a fire;

(c) Failing to provide any or any adequate fire fighting equipment in the unit;

(d) Failing to provide any or any adequate fire warning device in the unit;

(e) Failing to instruct the Plaintiff in relation to appropriate safety procedure to be followed in the event of a fire;

(f) Failing to warn the Plaintiff of the risk to the Plaintiff from fire in the unit;

(g) In breach of Section 103(2) of the Residential Tenancies Act 1994 failing to ensure the premises were fit to live in;

(h) In breach of Section 103(2) of the Act failing to ensure that the premises were in good repair;

(i) In breach of Section 103(2) of the Act failing to comply with laws relating to the health and safety of persons using the premises.

3A. Further or alternatively the particulars of negligence pleaded in paragraphs 3(g), (h) and (i) hereof constitute breaches of statutory duties owed to the Plaintiff as a consequence of which the Plaintiff suffered loss and damage."

"5. For the reasons hereafter pleaded, the Defendants deny that they were negligent as alleged in paragraph 3 of the Plaint, or at all.

5A The Defendants deny the allegations in paragraphs 3(g), 3(h), 3(i) and 3A of the Amended Statement of Claim, and believe those allegations are untrue because contrary to the allegations therein, the premises were fit to live in, were in good repair, and complied at the time of the construction of the premises with laws relating to the health and safety of persons using the premises.

6. Soon before the outbreak of the fire, the Plaintiff ingested or injected himself with a drug, namely heroin.

7. In consequence of the matters alleged in paragraph 6 hereof, the Plaintiff's ability and/or capacity to control his mental faculties and physical capabilities became and remained severely impaired.

8. Soon before the outbreak of the fire the Plaintiff had been smoking a cigarette in the lounge area whilst sitting on a settee.

9. In consequence of the matters alleged in paragraphs 6 and 7 hereof, the Plaintiff failed to extinguish the cigarette.

10. Further or alternatively the Plaintiff failed to extinguish the cigarette.

11. The unextinguished cigarette was the cause of the said fire.

12. In the premises particularised in paragraphs 6 to 11 thereof, the Defendants did not owe the Plaintiff any duty of care or alternatively did not breach any duty of care owed to the Plaintiff.

13. Further or alternatively, in the premises particularised in paragraph 6 to 11 hereof, the Plaintiff voluntarily accepted the risk of injury.

14. Further or alternatively, in the premises particularised in paragraphs 6 to 11 hereof, such injuries as the Plaintiff sustained were occasioned by his negligence or contributory negligence.

15. Further or alternatively, the Plaintiff's failure to safely exit the premises was caused by those allegations particularised in paragraphs 6 and 7 hereof and in the premises the Plaintiff's injuries were occasioned by his own negligence or contributory negligence."

They counterclaimed for damage done to the unit. The quantum of the counterclaim (before interest) was agreed at $80,000.00.

[11] Cameron Athol Mackay, who was then a police scientific officer, arrived at the unit at about 4.00 am on 19 September 1998. By then the fire had been contained by firefighters; it was "cleared" (by which I assume he meant extinguished) not long after his arrival. He found that the lounge/kitchen had sustained the most damage. There was only smoke and heat damage in the hall. The glass doors to the small external balcony had broken, allowing ventilation of the combustion products. In the lounge all combustible materials had been involved in the fire for a prolonged period of time, very little of them remaining. There had been a two seater couch and a one seater couch positioned against the northern wall of the lounge. From the very extensive damage to these, he was able to identify that area as the seat of the fire, but he could not identify an exact point of origin. There was no evidence of accelerants. He was unable to determine the cause of the fire.

[12] Counsel for the defendant mounted a substantial attack on the plaintiff's credibility, and submitted that the Court should not accept anything he said in evidence, unless it was corroborated by independent evidence. He highlighted inconsistencies in the various accounts the plaintiff had given of the fire as well as collateral matters reflecting adversely on his credibility. Issues of credit are relevant to questions of whether the plaintiff failed to put out a cigarette which ultimately caused the fire, whether the door lock was faulty and if so, whether the fault had come to the attention of the defendant, and quantum.

[13] There are several factors which reflect adversely on the plaintiff's credit. He has been a user of illicit drugs (particularly heroin) since he was a young man. He had one conviction for a comparatively minor drug offence committed when he was a very young man.

[14] He went overseas, where he lived for many years. He was deported from the United States, apparently for having participated in a "sham" marriage in order to obtain a "green card" to enable him to work there. Then he travelled fairly widely, working in different countries, until he met his wife in Israel. They moved to Germany and married. There was one child of the marriage. After the marriage failed, he was forced by German immigration laws to leave the country, and he returned to Australia in 1995.

[15] When police searched the unit after the fire, they found a relatively small quantity of heroin and some marihuana. Subsequently the plaintiff pleaded guilty to charges of being in possession of the drugs, but no conviction was recorded. He had subsequent convictions for a number of offences committed in December 1999 and June 2000 including receiving property reasonably suspected of being stolen, possession of drugs and weapons offences. Twice he was convicted of offences against the Bail Act 1980. In August 2002 he pleaded guilty to a number of offences including supplying dangerous drugs and receiving stolen property. He was sentenced to imprisonment for 18 months, with a recommendation for eligibility for post prison community based release after 6 months. At the time this action was tried, he was still in prison.

[16] According to the plaintiff's oral evidence, he and Ellem had been watching the Commonwealth Games on television. The television set was in the south eastern corner of the lounge. The plaintiff had been on the two seater couch and Ellem had been lying on the floor with his back up against the couch. They were both smokers. The plaintiff smoked a few cigarettes that evening, and used a silver ashtray. Ellem used another ashtray on the floor next to him. Earlier in the evening (sometime between 4.00 pm and 7.00 pm) the plaintiff had taken a small quantity of heroin. He got up from the couch when the Commonwealth Games ended at about 12.30 am to go to bed. Ellem wanted to stay up to watch a movie. The plaintiff said -

"I'm a man of rituals. I cleaned up where I was. I had my bedroom blanket on the sofa and bedroom pillow as well, which I packed up and took that in my bedroom. Also, a silver ashtray I always use there in my bedroom and then I think I just washed up a couple of coffee cups and then I washed my teeth and, yeah, and then I went to bed."

He went to sleep. He woke at about 3.00 am smelling smoke. He opened his bedroom door and was hit by immense heat, smoke and flames.

[17] The plaintiff described the smoke in the lounge as very thick, black smoke down to about a metre or less off the floor, and the fire there as like a "huge bonfire". He put a blanket over his head and crawled across the hall. He knocked on Ellem's door until he heard a response and shouted to him that there was a fire. He crawled down the hallway to the front door which he tried to open.

"... the handle was a little bit hot; so I covered my hand a bit but there was this simple problem with the door handle. When I moved into the flat I didn't think it was a big - such a big problem. A lot of people have this. It's one of those twist locks in the middle and at times when you turn it 90 degrees, it still doesn't release the lock in the door and you have to do both. You have to hold the door handle and wiggle a little bit and then it opens up. It was no big deal at the time. However, in this position and with the fire, it wasn't possible to open that lock .... This was - wanted to get out of that flat really badly and I stayed there as long as I could and persevered with it but, eventually, I had to return down the hallway back to my bedroom and at that time Grant [Ellem] was coming - he'd just opened his bedroom door and was also stunned, but I got him down on his hands and knees and across into my bedroom."

[18] The plaintiff said that Ellem came into his bedroom where he told him about the door. They "threw ideas back and forth". They went into Ellem's room briefly to see if the window bars were bolted or screwed. Finding that they could not get out through Ellem's window, they went back into the plaintiff's bedroom and discussed getting out through the bathroom window. This was not practicable, and the plaintiff decided that the only way out was to jump from his bedroom window. They got some of their things together in a black backpack. Ellem panicked and ran out of the room. The plaintiff climbed out of the window and hung on from outside for a while. When he let go, he fell. His next memory was of being in the emergency ward of a hospital 24 hours later.

[19] The first police officers on the scene were Senior Constable Ian Cameron and Constable Kirsty McKenny. McKenny gave evidence but Cameron (who is now stationed at Coorparoo in Brisbane) was not called. McKenny recalled a conversation with the plaintiff on the cement driveway on the ground floor of the unit complex. The firefighters were still in attendance, and attempts were being made to revive Ellem. The plaintiff said words to the effect that he had fallen asleep on the couch with a cigarette. McKenny did not make any notes of the conversation at the time. She took a statement from the plaintiff on 29 July 1999 in which he made no mention of falling asleep with a cigarette and said he did not know the cause of the fire. She first recorded his initial statement about a cigarette in a statement she made on 16 August 1999. Constable McKenny was cross-examined about this before the coroner and again at the trial of this action. It was put to her that she had merely formed the impression that the plaintiff must have fallen asleep with a cigarette. She was firm that he had said words to that effect, although she could not remember his exact words.

[20] Detective Senior Constable Turville and Constable Konefal arrived on the scene after 3.00 am. After preliminary investigations they proceeded to the emergency department of the Mater Hospital where they spoke with the plaintiff at around 3.45 am. They both gave evidence of the plaintiff having told them that he had been in the lounge, that he had used some heroin, that he had lit a cigarette and fallen asleep, and that was the cause of the fire. Konefal gave evidence of the plaintiff having said that he was the only one in the lounge and that Ellem was in his bedroom. Turville completed a summary of the night's occurrences. In relation to this incident he recorded (inter alia) -

"Spoke briefly with FINE who stated that he had been in the loungeroom of the home and had been using drugs during the evening (Heroine) [sic]. FINE also stated that he may have lit a cigarette and fallen asleep with it alight."

[21] In cross-examination the plaintiff said he had no recollection of a conversation with McKenny on the ground below his bedroom window. He said he had a vague recollection of a conversation with Turville and Konefal but that he had been quite heavily sedated with painkillers. He agreed that he had told them that he had used heroin that day. He agreed that he had told them he had been smoking cigarettes, but said he did not remember having told them that he may have fallen asleep. He said he told them that he went to sleep in his bedroom. When questioned whether he recalled telling them that he was in the lounge alone and that Ellem was in his bedroom, he said he did not remember this, but that they may have been talking about a time earlier in the evening when Ellem had been in his room.

[22] On 21 September 1998 Detective Senior Constable Randall Smith and Constable Zac McAfee interviewed the plaintiff. He was still in hospital. The interview was recorded on audio tape. The following was recorded -

"Plaintiff: Yeah I was watching the Commonwealth Games at about 1.30 I retired I cleaned up my table I'm always really clean person I sought of cause I take a blanket out onto the lounge suite and a my pillow and I put all that back onto my bed and then I sought [sic] of always clean up the lounge room table there and I made myself a chocolate milk and went to bed. All I can think of is maybe when I turned off the stove that I didn't turn it right off.

Smith Well mate you told the police that you had a smoke before you went to sleep is that right

Plaintiff I had a smoke in the lounge room before I went to sleep but I put it out in the ashtray

Smith Well is that the case because the other day you told police that you had a smoke before you went to sleep and you may have fallen asleep and that the cigarette may have lit the lounge up is that

Plaintiff Yeah but I checked all around the lounge like I always fluff up the cushions and I took the cushions off the lounge and there was no butts or anything there and on the floor. I always do that and empty the ashtray"

Later he was questioned further about his suggestion that he may not have turned the stove off properly. The following appears -

"Plaintiff Yeah because like I was after I got up from the couch I was still in the lounge room and getting ready and brushing my teeth for at least half to three quarters of an hour before I went into bed and I smelt [sic] no smoke and even ask my room mate I'm pretty neat person I always you know clean things up I hate waking up to a mess I'm a chef and a waiter for the last 40 years and I am a bit of a virgo I am also just like that I hate waking up to a messy place and so I always wash up the last couple of times and do all those sort of things and if a cigarette rolled off I had also I mean Grant was smoking that night as well.

Plaintiff Maybe not even an hour before I did, and he was on the ground he was lying on the ground using glass ashtray next to him"

The plaintiff admitted having used some heroin earlier in the evening, probably at 6.00 pm or 7.00 pm. He said he was aged 43, and that he had been a heroin junky for 25 years (with some intermittent periods of detoxification and abstinence). He denied having taken heroin just before going to sleep. He described going to sleep in his bed and being woken by smoke. He described the lounge as an inferno and flames shooting at least 2 metres out from the balcony.

[23] The plaintiff visited the defendant after his discharge from hospital. Despite the plaintiff's denial in cross-examination, I accept that he asked the defendant whether he had insurance, and that he asserted that the power point in the lounge had been faulty. Shortly afterwards, these proceedings were commenced by the issue of a District Court plaint on 17 November 1998. The first particular of negligence pleaded was failure to ensure that electrical fittings in the unit were reasonably safe and did not pose a fire hazard. I observe that there was no evidence of any faulty electrical fitting led at trial.

[24] At the inquest, which was held more than 12 months after the fire, the plaintiff said he did not know how the fire had started - "whether it was something from me or something from [Ellem]".

[25] I accept the evidence of McKenny, Turville and Konefal that the plaintiff said words to the effect that he had, or may have, fallen asleep after lighting a cigarette. However, I am not persuaded that is what in fact happened. Counsel for the plaintiff described what the plaintiff said as "remorseful reconstruction", which is a fair epithet in the circumstances. It is significant that he did not sustain any serious burns in the fire. Given the forensic evidence of the very extensive damage to the couches, it seems almost inevitable that he would have been burnt had he been asleep on the two seater when the fire developed. He sustained quite serious orthopaedic injuries, and it is reasonable to assume that he was in some pain and state of shock when he spoke to McKenny. He was still on a trolley in the emergency ward of the hospital when Turville and Konefal spoke to him. Konefal said he appeared to be in pain, but he was coherent and seemed to understand what they said. Mackay (the police scientific officer) was cross-examined about how long a cigarette might smoulder before developing into flaming combustion, but his response was to the effect that the time would vary according to the temperature, the supply of oxygen and the nature of any combustible materials present. It would be mere speculation to suggest that the plaintiff left a smouldering cigarette before going to sleep in his bedroom. Similarly it would be speculation to suggest that the fire resulted from a cigarette lit by Ellem. The cause of the fire has not been established on the balance of probabilities.

[26] The plaintiff first inspected unit 8 on 6 September 1998, and his tenancy commenced two days later. He telephoned the defendant in response to a newspaper advertisement, and the defendant took him to inspect a number of properties including unit 8. He decided to take unit 8 and paid one week's rent to secure the tenancy. On 8 September the defendant visited him where he was then living and the lease and a bond form were signed. The plaintiff paid further rent and part of the bond. The defendant also gave him a condition report relating to the premises, which the defendant had signed and dated.

[27] There was dispute about when the plaintiff signed the condition report. This is important because as against "Locks" the symbol "W" appeared, meaning that they were in working order.

[28] According to the defendant, he inserted the date 8 September against the space for the plaintiff's signature, but the plaintiff refused to sign it, insisting on taking it away for the allotted three days. The defendant was at the unit complex working on unit 6 after the plaintiff had moved into unit 8: he asked the plaintiff if he had any problems, to which the plaintiff said that he did not. On another occasion, at least 5 days after the plaintiff had moved in, the defendant approached him and asked for the return of the condition report. The plaintiff then signed it; he did not alter the date; and he gave it back to the defendant.

[29] In cross-examination the plaintiff seemed to have no specific recollection of signing and returning the condition report. He was obviously familiar with such documents from renting other premises. He said he was fairly accurate with his paperwork, and that if he had signed and dated it, he would have returned it the same day or the following day. When his attention was drawn to the notation against "Locks" and the absence of any other comment about them, he said -

"No, because this was right at the very beginning when I moved into the flat and we didn't realise how much trouble it was locking, the locks were working, they were locking the doors, however, it was the thing about unlocking them that became a problem after four or five or six days of being in the flat, that's when we realised that there was a problem, but this had already been handed in."

[30] The defendant impressed me as an astute and cautious person. He had obviously been an investor in residential properties for many years, who took a hands-on approach to the management of his various properties. He was meticulous in his record-keeping and himself actively involved in dealing with tenants and maintenance and cleaning of his properties. I accept his recollection of the circumstances in which the plaintiff signed and returned the condition report in preference to that of the plaintiff.

[31] I accept the defendant's evidence that he was not aware of any problem with the front door lock. Previous tenants had not drawn any problem to his notice. He personally cleaned and inspected the premises between tenancies and did not identify any problem. I accept that after the plaintiff moved in, he asked him if there were any problems and the plaintiff said there were not. I reject the plaintiff's evidence that he told the defendant the doorknob was "a bit catchy" and that the defendant said he would take a look at it.

[32] I do not accept that there was a problem with the twist lock on the front door which prevented the plaintiff's escape from the fire.

[33] The plaintiff did not mention it to McKenny. He told Konefal and Turville that the door was "stuck", but did not elaborate. In the interview with Smith and McAfee on 21 September he said that he tried to open the door with a blanket over his hand but it was jammed - the heat must have expanded the metal door. (I assume he meant the door frame rather than the door itself.) Later he said -

"I went to the front door and I realized I knew it was so hot I used the blanket to hold the front door handle cause it and it sitched sitched (sounds like) with the blanket on it.

Plaintiff no I had a thick blanket and went to the front door handle and I could feel that the blanket was sitching schhhh (sounds like) and I just tried to turn it and pull it I couldn't do anything."

He did not mention it when he spoke with the defendant after his discharge from hospital. In the plaint issued in November 1998 the plaintiff pleaded that the door was "stuck", but gave no particulars of the twist lock. In May 1999 he told the occupational therapist Lesley Stephenson that the front entrance was extremely hot. In the statement he gave McKenny in July 1999 he said the door was "too hot". At the inquest held in November 1999 he said that he could not kick the door in because the frame went in the other direction, and that the handle was extremely hot.

[34] In the plaintiff's favour I note that Dr Peter Mulholland, psychiatrist, who examined him in March 200 recorded being told that the front door would not open; that they had been having problems with that door.

[35] Mr David Freeman, a friend of the plaintiff who cared for him after his discharge from hospital, gave evidence of having visited the unit every day or every second day after the plaintiff moved in. He said there was a problem with the front door lock on leaving the premises. He had difficulty describing the problem. He seemed to be saying that the twist lock could be turned to the unlocked position, but that it would still be necessary to "pull it and pull it to get it open. It was like the thing itself, you know, needed a good overhaul." When he as cross-examined about problems with the door handle, he agreed that he could unlock the lock, but said that it was still necessary "to turn the handle and jiggle it to pull it out". Mr Freeman was a kind-hearted soul who genuinely wanted to help his friend the plaintiff. He was a disability pensioner who led an otherwise uneventful life. Unfortunately his evidence was replete with vague generalisations and exaggerations. I shall deal with this in more detail when I address quantum, particularly the claim under the principle in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. He was an unreliable witness. I do not accept that he had experienced any more than a minor problem in opening the door.

Absence of firefighting equipment and instructions

[37] There was no firefighting equipment in the unit, and at no time before the fire had the defendant given the plaintiff any instructions about what to do in the event of a fire.

[38] A landlord of premises owes the tenant a duty to take reasonable care to avoid foreseeable risk of injury: Northern Sandblasting Pty Limited v Harris [1997] HCA 39; (1997) 188 CLR 313; Jones v Bartlett (2000) 205 CLR 166; NSW Land & Housing Corporation v Watkins [2002] NSWCA 19; (2002) Aust Torts Reports 81-641. The content of the duty must depend on all the circumstances. The Court must determine whether a reasonable person in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class including the plaintiff, and if so, the Court must determine what a reasonable person would have done in response to the risk: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at pages 47 - 48.

[39] In Jones v Bartlett the High Court considered the obligation of landlords of residential premises to an adult child of their tenants. There the plaintiff was injured when he walked into a glass door which shattered. The glass complied with relevant safety standard when the premises were built, but it did not comply with standards which would have been applicable had the glass been replaced at the time of the accident. The negligence alleged against the landlords was their failure to have an expert assessment of the premises at the time of the lease, in circumstances where it was supposed that such as assessment would, in turn, have resulted in a recommendation to replace the glass - a supposition Gleeson CJ described as (at page 184) "unwarranted". The High Court found (by 6 - 1 majority) that the landlords were not liable to the plaintiff.

[40] Gleeson CJ described the question whether it was reasonable to require an owner of premises to have them inspected by an expert before letting them as involving a factual judgment which could not be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which sought to pre-empt the decision as to reasonableness.

[41] Gaudron J was of the view that the landlords' duty was simply to take reasonable care to put and keep the premises in a safe state of repair; they were not obliged to make the premises as safe as reasonable care and skill on the part of anyone could make them. In coming to that conclusion her Honour was influenced by the contractual nature of the relationship between a landlord and a tenant. She said at pages 192 - 193 -

"Moreover it is a relationship that involves an element of choice. As the relationship is contractual, the parties can either stipulate as to the terms of the tenancy or elect not to enter into that relationship. Moreover, it will ordinarily be the case that the relationship between a tenant and the members of his or her household involves a greater degree of control and dependence than does the relationship between a landlord and the members of his or her tenant's household."

[42] Gummow and Hayne JJ said (at page 215) that broadly the content of a landlord's duty to his or her tenant will be coterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence. They observed that normally the landlord will surrender occupation to the tenant, and so the content of the duty will be less than that owed by an owner-occupier who retains the ability to direct what is done on, with and to the premises. They noted that the content of the duty was consistent with statutory duty under various residential tenancy statutes around the country, and commented (at page 215) -

"In the present field, affecting the daily lives and transactions of a very large proportion of the population, the Court should be slow to hold that the content of a common law duty rises above that which has been imposed by statute in the various Australian jurisdictions."

Their Honours went on to say that the notion of reasonable fitness prompts three inquiries - the presence of dangerous defects, the taking of reasonable care to ascertain them, and the exercise of reasonable care to remove them or otherwise to make the premises safe.

[43] Kirby J considered that the landlords' duty of inspection and the taking of remedial action extended to patent defects only.

[44] Callinan J was not convinced that there was a common law duty of care in addition to obligations arising under the tenancy agreement and the Occupiers' Liability Act 1985 (WA). He went on to say (at page 252) that if there were such a duty, it was no more than to provide, at the inception of the tenancy only, habitable premises - something which the landlords had surely done.

[45] McHugh J dissented. He was of the view that ensuring that premises are reasonably fit for habitation will usually require an inspection by the landlord or an agent immediately before the commencement of a tenancy. It may also require inspection by a person with building qualifications and the capacity to assess the safety of the premises, depending on the age of the premises, their general condition, and the time since the last inspection by a professionally competent person. His Honour considered that this was a case where there ought to have been such an inspection. The risk of injury to someone such as the tenants' son would have been reasonably foreseeable to such a person. The glass could have been replaced relatively cheaply. The Australian Standards were merely a guide to, but could not dictate, the standard of care required in the circumstances of individual cases (at page 197).

The content of the duty of care in the present case

1. On the facts as I have found them, there are five matters to be considered -

(i) the presence of bars over the whole of the window in the second bedroom;

(iv) the absence of instructions as to what to do in the event of a fire;

(v) breach, if any, of the provisions of the Residential Tenancies Act 1994 (Qld).

[46] Was it reasonably foreseeable that the presence of the window bars over the full length of the window in the second bedroom would prevent someone such as the plaintiff escaping from the premises in the event of a fire? If so, what if anything would a reasonable person have done in response to the risk? Clearly the bars would prevent egress through the window. The extent of the risk that they would prevent escape from the unit in the event of fire must be assessed having regard to the layout of the unit as a whole, various permutations of where the fire might be and how intense it might be, and other possible means of escape. I do not think their presence could be described as a defect in the premises, or as detracting from their otherwise habitable character. They were there for the purpose of preventing the use of the window as a means of ingress and egress. They were there for the plaintiff to see before he chose to enter into the tenancy. It is true that the defendant could have replaced them with bars covering only part of the window at relatively little cost, but to find him negligent for not having done so would, in my opinion, be to apply the benefit of hindsight and to require of him more than the response of a reasonable person in all the circumstances.

[47] When the building was constructed there was no statutory requirement that smoke detectors be installed, and I am satisfied that there was no obligation under legislation in force at the time of the fire that they then be installed.

[48] The Standard Building Regulation 1993 ("SBR") was made pursuant to s 4 of the Building Act 1975. By s 8 of the SBR, the Building Code of Australia ("BCA") is part of and to be read as one with the regulation. The unit building was a class 2 building under the BCA. A class 2 building was required to be fitted with a smoke alarm or detector complying with a certain specification in the BCA: see A3.2 (Classifications), E2.2(a)(i) (General requirements), table E2.2a, specification E2.2a.

[49] Section 58 of the Building Act (which was in force at the time of the fire) provides -

"Lawfully constructed buildings and structures protected

58. If a building or structure was lawfully constructed before the commencement of this section, the Standard Building Regulation can not require the building or structure to be altered or removed unless the building or structure is -

(b) in a dilapidated condition and unfit for use or occupation; or

[50] Thus there was no obligation on the defendant to install smoke detectors in his existing unit building unless one of the five alternatives in s 58 was satisfied. Alternatives (b) - (e) were clearly not satisfied. Was the building "dangerous" within alternative (a)? Danger, or exposure to risk or peril, is necessarily a relative concept. As Mahoney JA observed in Phillis v Daly (1988) 15 NSWLR 65 at page 74 -

"There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed."

And in Jones v Bartlett 166 Gleeson CJ said at page 177 -

"There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense."

See also the judgment of Gummow and Hayne JJ at pages 216 - 220. In those cases, their Honours were speaking in the context of the common law duty of care, but what they said is pertinent, too, in considering what the Legislature meant in s 58 of the Building Act. Clearly it intended to prescribe higher standards for building construction and safety than had previously been in force, but at the same time it recognised the potential costs and impracticalities of requiring existing buildings to be brought up to the new standards. It required alteration or removal of existing buildings only where their condition was inimical to their ordinary use. This is clear from the terms of alternatives (b) - (e), and, in my view, alternative (a) is to be read in similar vein.

[51] There was effectively only one means of entry to/exit from unit 8, and that was through the front door on the western side of the unit. There was a synthetic carpet on the floor. There were no smoke detectors or fire fighting equipment in the unit. Relatively inexpensive smoke detectors were readily available at the time and the desirability of installing them was a matter which had received some publicity. It would have been possible to have installed window bars which covered only that half of the window which could be slid open. Indeed the defendant took both of these measures after the fire. With the benefit of hindsight, it is easy to say that the relative safety of the unit could have been improved without disproportionate expense. However, I am not satisfied that the premises were "dangerous" within the meaning of s 58 of the Building Act. They were sufficiently safe for ordinary every day use. It follows that there was no obligation to install smoke detectors in accordance with the specification in the BCA.

[52] Counsel for the defendant submitted that there were no provisions of the Fire and Rescue Service Act 1990 or the Building Fire Safety Regulation 1991 applicable to this case. I did not understand counsel for the plaintiff to demur from that submission.

[53] In circumstances where there was no statutory obligation to install smoke detectors in an existing building which was not "dangerous" within the meaning of the legislation, I do not think that the common law required the installation of smoke detectors, whether complying with the specification in the BCA or otherwise. See Jones v Bartlett at page 215 per Gummow and Hayne JJ and at page 252 per Callinan J. Moreover, there was no evidence of their effectiveness, and in particular no evidence from which the Court might have concluded that had they been installed, the plaintiff would have been alerted to the fire early enough to be able to escape without injury - presumably through the front door or through the sliding door on to the small external balcony (although the latter would have involved him dropping three levels to the concrete below, just as he did when he escaped through the bedroom window).

Absence of firefighting equipment and instructions

[54] Similarly there was no evidence to establish any causal link between the absence of firefighting equipment and instructions about what to do in the event of fire and the plaintiff's injuries.

[55] By s 103(2) of the Residential Tenancies Act 1994 (Qld) -

"(2) At the start of the tenancy, the lessor must ensure -

(b) the premises are fit for the tenant to live in; and

(c) the premises and inclusions are in good repair; and

(d) the lessor is not in breach of a law dealing with issues about health or safety of persons using or entering the premises."

The plaintiff alleged breach of these provisions as constituting both particulars of negligence and as the basis of a separate claim for breach of statutory duty.

[56] Questions of fitness for habitation and repair are to be judged against a standard of reasonableness having regard to the age, character and locality of the residential premises and to the effect of a default on the state or condition of the premises as a whole: Bond v Weeks [1999] 1 Qd R 134 at page 138 (where the Court of Appeal discussed provisions to similar effect in earlier legislation). As I have said when discussing s 58 of the Building Act, the premises were sufficiently safe for ordinary everyday use. They did not contain any dangerous defect (see Jones v Bartlett at page 216 per Gummow and Hayne JJ). They were fit for the plaintiff to live in. Moreover there is no evidence of lack of repair or breach of any relevant health or safety law. In short, I am satisfied that no breach of any of these provisions of the Residential Tenancies Act has been made out.

[57] The plaintiff has failed to prove that the defendant was negligent or in breach of any statutory duty. The claim must be dismissed. The defendant has failed to prove that the fire was caused by the negligence or breach of statutory duty of the plaintiff. The counterclaim must be dismissed.

[58] Despite my findings on liability, I am obliged to assess the quantum which I would have awarded the plaintiff had he succeeded on his claim.

[59] The plaintiff was born on 26 August 1955. He was educated to the equivalent of year 12 at the Cranbrook School in Sydney.

[60] From the age of 18 he worked for approximately two years as a reservations clerk for Qantas. He started a chef's apprenticeship at the Sydney Opera House but did not complete it. Soon afterwards he went overseas, working in the kitchens of big hotels in various cities. After five years, he came back to Australia for about seven or eight months, before returning overseas. He went to Israel where he worked in a large hotel and where he met his wife, who was German. They went to Germany where they married. The plaintiff continued to work in the hospitality industry, and at the age of 26 opened his own cafe bar restaurant which he ran for about 10 years. After that he went into property development (building houses to set designs) for about three years. He and his wife had been married about 15 years when their only child was born. Not long after that, the marriage failed. Eventually he returned to Australia in 1995.

[61] Upon his return to Australia the plaintiff obtained work in restaurants. He spent about six months in Cairns, then six months in Sydney before going back to Germany for a brief period. He then came back to Australia, and again obtained work in restaurants. I shall consider that employment and his earnings in more detail below.

[62] As I have noted earlier, the plaintiff has had a longstanding heroin addiction. He has been through various phases of using heroin, detoxification and abstinence. That pattern continued right up until the fire and after it. Since the fire he has had several criminal convictions. He was diagnosed with hepatitis C (a viral infection transmitted by blood or serum) at about the age of 38. The progression of the hepatitis has been slow, and if it continues to be so it may be 20 years before it becomes disabling.

[63] The plaintiff has been in custody since May 2002, and is presently serving a term of imprisonment for supplying heroin and other offences. The evidence about when he may be considered eligible for post prison community based release was unclear. He referred to an unresolved matter (by which I assume he meant something in relation to his conduct as a prisoner) which might delay his being considered for such release. Suffice it to say that he was sentenced to 18 months imprisonment commencing 23 August 2002.

[64] As the result of his fall from his bedroom window on to the concrete the plaintiff sustained the following injuries:

(i) fractured right wrist and comminuted fracture of the right distal radius;

(iv) musculoligamentous injury to the lumbar spine;

[65] He was admitted to the Mater Hospital where his fractured wrists were pinned and an external fixateur was applied to his right wrist. On his discharge on 8 October 1998 (two and a half weeks later) he went to stay with Mr Freeman. He returned to hospital on 30 October 1998 and had the external fixateur removed; he was discharged on 6 November 1998 and went again to Mr Freeman. He had a further five days in hospital in July 1999 when he was treated for an infection.

[66] Mr Freeman looked after the plaintiff after his discharge from hospital. Unfortunately his evidence about how long he cared for the plaintiff, what he did for him and how many hours a day he devoted to his care was not entirely reliable. I prefer the plaintiff's evidence that he stayed there for four or five months to Mr Freeman's evidence that it was up to six months. I accept that when the plaintiff first left hospital he was weak and mostly confined to a wheelchair. He still had the external fixateur on his right wrist and pins in both wrists. He needed a good deal of help with almost every aspect of daily living, which Mr Freeman generously and gratuitously provided. However, it was an exaggeration for Mr Freeman to say that this took almost every minute of his waking day. When asked for his estimate of the number of hours he spent assisting the plaintiff Mr Freeman said -

"The real estimate is probably about 10 to 14 hours a day, you know. Just six hours is fine, you know."

Mr Freeman described himself as being like a limousine driver constantly on call to meet the plaintiff's needs.

[67] I accept the evidence of the defendant that the plaintiff visited him at his home on 16 October 1998 when the defendant agreed to refund the week's rent which had been paid in advance. He arrived unexpectedly at the defendant's side door. He was not in a wheelchair. To reach that back door from the entrance to the defendant's property it was necessary to traverse about 40 metres, covering a total of 15 steps, broken by several flat areas. I reject Mr Freeman's evidence that the plaintiff was not mobile at that time.

[68] The plaintiff's need for intense assistance abated after his second discharge from hospital. It is always difficult to form a fair estimate of the number of hours spent in caring for an injured plaintiff when the care was provided by someone in the household who bore the burden along with his or her normal chores. Of course, damages must reflect the needs of the plaintiff rather than recompense for the caregiver. Doing the best I can, I consider that the plaintiff's needs were for four hours per day over the first three weeks of his convalescence, and thereafter for two hours per day over four months.

[69] The plaintiff has been left with restricted movement and strength in his right wrist equivalent to a 20 - 25% loss of function of his right arm. There is no present indication for arthrodesis of the right wrist, but it may become necessary in the future with increasing osteoarthritis. He has about a 20% loss of function of his left arm. He experiences discomfort in his spine after sitting or standing for prolonged periods. (At one time he said he could tolerate two or three hours, but he later reduced this to about an hour or an hour and a half. The earlier, longer estimate accords more with my observations of him in court.) He has a chronic depression. This was probably present to a lesser degree before the fire, but aggravated to the clinical diagnosis level as a result of his experience in the fire and the injuries he sustained.

[70] I assess damages for pain and suffering and loss of the amenities of life at $40,000. I allow interest on $25,000 of that amount at 2% per annum over four and half years ($2,250).

[71] The plaintiff's income tax records for the years ended 30 June 1996, 30 June 1997 and 30 June 1998 reveal the following sources of income-

He had various jobs in Sydney, Cairns and Brisbane. In the year ended 30 June 1998 he received over $2,000 in social security benefits. From 24 November 1997 until 5 September 1998 he worked as a casual flambé cook/waiter at Gambaro's Restaurant. According to his employer, his average net weekly wage was $252; in the four weeks ended 21 May 1998 his gross wage was $464-80 per week.

[72] The plaintiff's evidence was that he received cash in the hand in addition to the wages he declared for income tax purposes. He said that at Gambaro's he was earning about $700 a week, being $250 "registered on the books" plus $150 cash in hand plus tips of $50 per night six nights a week. He declined to answer questions about this in cross examination after being advised of his right to claim privilege against self incrimination.

[73] In Giorginis v Kastrati (1988) 49 SASR 371 the Full Court of the Supreme Court of South Australia considered the position of an injured plaintiff who had failed to disclose all of his income to taxation authorities. At pages 375 - 376 von Doussa J (with whom King CJ and Legoe J agreed) said -

"Where the plaintiff gives evidence that his income tax returns do not disclose the full extent of his earnings, a court will scrutinise the plaintiff's evidence with special care. The want of honest compliance with the taxation laws is a matter that will reflect adversely on the plaintiff's credit and may lead to the rejection of his evidence as untrustworthy, at least about his earnings. In such a case the plaintiff has only himself to blame if damages are assessed in line with the pre-accident income actually disclosed to the revenue authority. However, where the fact of the receipt of other income is proved, then, in my view, the plaintiff is entitled to have that exercise of his earning capacity brought to account, although subject to reduction for the income tax which should have been paid, and subject to the question whether the plaintiff would have continued to exercise that capacity had he been required to pay tax on the additional income: see McIntosh v Williams [1976] 2 NSWLR 237 at 244, 252. Melino v Ken Eustice Motors (North Road) Pty Ltd (1984) 111 LSJS 296 at 308 - 310 is an example of a case where undisclosed income was proved and brought to account.

A failure to disclose income as required by s 161 of the Income Tax Assessment Act 1936, constitutes an offence which may attract heavy penalties: see s 223 of the Income Tax Assessment Act and ss 8C, 8K and 8P of the Taxation Administration Act 1953. Where a tax fraud or evasion of this kind is disclosed in evidence, it is the court's duty to draw the evidence to the attention of the executive branch of government for such action as may be appropriate; Petera Pty Ltd v EAJ Pty Ltd [1985] FCA 277; (1984) 7 FCR 375. A court should not, generally speaking, make a finding favourable to the plaintiff in a personal injury case that his income is otherwise than he has disclosed to the revenue authority unless the plaintiff admits the non-disclosure. A fortiori, such a finding should not be made where the plaintiff denies that he has failed to properly disclose his income. Unless the plaintiff admits the falsity of his income tax returns the court should not speculate in his favour, for example that his pre-accident earnings were probably higher than he has disclosed. Rather, the court should adopt the income figures actually disclosed and base the assessment of damages on them. Again, if this results in a low assessment, that is the consequence of the plaintiff adhering to the accuracy of his income tax returns."

See also Nominal Defendant v Littlewood, NSW Court of Appeal, CA 203/79, 21 August 1980, Hope JA, Reynolds JA, Hutley JA, unreported, in relation to the value of benefits lost by dependents of a deceased who had not declared all of his income to the taxation authorities.

What the plaintiff said in oral evidence is inconsistent not only with his income tax records but also with documentary evidence from his employer. In the circumstances I do not accept the plaintiff's oral evidence of receiving $150 cash in hand from his employer. I accept that he received some tips, which he ought to have declared for income tax purposes.

[74] I accept that the plaintiff's injuries prevented him from working between the fire and his incarceration (a period of 188 weeks). I assess past loss of earning capacity at $300 net per week over that period, discounted by 40%. This results in an award under this head of $33,840.

[75] I allow interest on $10,000 of the past economic loss at 5% per annum over four and a half years ($2,250).

[76] But for the injuries he sustained in escaping from the fire, the plaintiff would probably have worked to age 60. In estimating the extent to which he would have exercised his earning capacity, there needs to be a substantial allowance for likely periods of unemployment due to his drug addiction, the casual nature of his work history, and the possibility of ill health (including the effects of the hepatitis C), as well as the usual discounting for the vicissitudes of life. He is still in prison, and his criminal record since the fire raises the possibility that he might succumb to illegal activities again. His hepatitis C would probably not be a hindrance to work as a waiter if he could otherwise do that work. However, I accept that he could not return to work as a waiter because of his wrist injuries. The possibility of his being employed in property development was mooted, but I dismiss this as unrealistic in circumstances where he was not shown to have knowledge of or experience in the Australian real estate market. He has some residual earning capacity which might be exercised in clerical or drug rehabilitation work.

[77] I assess the plaintiff's future loss of earning capacity at $120 net per week over 12 years. Using the 5% discount table, the figure of $56,880 is arrived. I would then discount that by 15%, so arriving at $48,350.

[78] I assess past loss of employer's contributions to superannuation at $2,370 (being 7% of the past loss of earning capacity).

[79] I assess future loss of employer's contributions to superannuation at $3,870 (being 8% of the future loss of earning capacity).

[80] Under the principle in Griffiths v Kerkemeyer I allow damages for past gratuitous care calculated on the basis of four hours per day over three weeks and two hours per day over 16 weeks at the agreed rate of $10 per hour - a total of $3,080.

[81] I allow interest on the past gratuitous care at 5% per annum over four and a half years ($695).

[82] I allow $2,000 for the cost of future treatment.

[84] I allow interest on $2,888 of the special damages at 5% per annum over four and a half years ($650).

[85] In summary, my assessment of quantum is as follows -

[86] The plaintiff's claim against the defendant is dismissed. The defendant's counter claim against the plaintiff is dismissed.