Freudenstein v Marhop Pty Ltd & Ors [2010] NSWSC 724 | Case summary

Freudenstein v Marhop Pty Ltd & Ors [2010] NSWSC 724 | Case summary | Zoe

[15]

The broad issues. 1 I should, at the outset, identify the issues on liability. At the time of the accident the hotel was undergoing renovations. It was operating out of a bar on the first floor. The plaintiff was a patron of the hotel. He lived nearby and had been to the hotel many times before. On the evening of the accident he consumed at least 13 or 14 schooners of full strength beer. Much of it had been purchased from the hotel. It was not unusual for him to consume that much beer. The hotel continued to serve him alcohol because it did not regard him as drunk (T 119-122). 2 There was controversy as to the circumstances in which the fall occurred. Mr Freudenstein was, according to the defendants, a very determined entrant, who ignored obvious risks. On the defendants' case, the door from the hotel bar that led to the building work was closed, if not locked. There was a sign which, in substance, said: "No Entry - Construction Work". The door opened onto a short corridor. A wall had been knocked out at the end of the corridor, in preparation for the installation of a fire door. According to the builder, the opening for the fire door was blocked by plywood. The plywood was secured by props, which had been fastened to the roof on the other side of the doorway. Hence, on the defendants' case, Mr Freudenstein had forcefully removed the plywood, displacing the props. Further, to pass through the door, he had to step up 500 mm onto the roof. Beyond the door, there was, according to the defendants, a further barrier. A safety fence had been erected. It was set back a metre and a half from the edge of the roof. The fence was about a metre high. Underneath there was plastic mesh, which had been fastened to the wood of the fence. To get to the edge of the roof and fall, the plaintiff had either to climb over the fence or push the mesh to one side and then climb under it. 3 The plaintiff's case was very different. There was no barrier between the interior of the hotel, where he was drinking with his friend, and the edge of the roof from which he fell. The door was not locked. Indeed, it was wedged open. There was no sign. There was no plywood covering the opening. He pushed nothing aside to pass from the corridor to the roof. Certainly he stepped up 500 mm or so. However, there was no barrier on the roof and no plastic mesh. 4 Further, the defendants argued that, even were these issues resolved against them, and a fortiori if they were not, there was no duty of care. Alternatively, the scope of any duty owed to the plaintiff, did not extend to liability for his fall. The defendants submitted that, in determining whether there was a duty and its scope, the plaintiff's inebriation was not relevant. It was his own doing (DS [36]) Alternatively, were the Court to find a duty and breach, the plaintiff's own lack of care was such that his contributory negligence should be assessed at 100% (DS [41]). 5 On the plaintiff's case there was a duty. In determining the scope of that duty, it was relevant that the first defendant was a hotel and that patrons may be affected by liquor. There was, it was suggested, a clear breach of duty, both by the builder and the hotel. Any deduction for contributory negligence should be modest (10% - 15%) (Pl's Subs [44]) 6 Against that background, let me go to the evidence.

[16]

The plaintiff's account. 7 The renovations at the Mona Vale Hotel began in early 2000, that is about a year before the accident (Ex 5, para [11]). It was the plaintiff's local hotel. Mr Brad Jenkins, the hotel manager and the second defendant, said this: (Ex 4 para [7]) "7 I know the plaintiff, who is known as 'Fruity' and who drank at the Hotel during the time I worked there. I know him as he was (is) a regular local customer and by this I mean that he came into the Hotel every day. He would come in and drink at least 10 schooners of full strength beer per day. On a weekend Fruity would drink more. It would not surprise me if Fruity drank between 14 and 17 schooners of full strength beer in a 'session'. This was typically what Fruity and his friends would do in terms of alcohol consumption per day at the Hotel." 8 Mr Jenkins joined the Mona Vale Hotel days before the accident. His comments were based upon observations after the accident. Nonetheless, although there was the suggestion that Mr Freudenstein's drinking increased after the accident, it was common ground that he also drank heavily before (T 23). I will return to the issue of alcohol below. Mr Freudenstein, as a local, was aware of the building work which was being undertaken. 9 The building work was suspended on the Thursday before Easter. On Easter Saturday, 14 April 2001, Mr Freudenstein worked as a floor sander with his employer, John Cross, on another building site. His wife, Michelle, was away visiting friends in Wagga Wagga. Mr Freudenstein arranged to meet John Cross at the Mona Vale Hotel at about 5.00 pm. They remained at the hotel until about 7.00 pm, each drinking beer. Mr Freudenstein estimated that he drank about four schooners of beer in that time (Ex A, annex J(2)[14]). He and Mr Cross then took a taxi to the Pittwater RSL, where they met friends and had a meal. They left the RSL Club at about 11.00 pm. In a statement made by Mr Freudenstein six months after the accident (24.10.2001), he said this, providing an estimate which included the beer he had earlier drunk at the Mona Vale Hotel: (Ex A, annex J(2)[14]) "14 ... I estimate that I had consumed ten schooners of beer. I did not drink any other type of alcoholic beverage apart from beer at the Pittwater RSL Club. ..." 10 Mr Freudenstein and Mr Cross returned to the Mona Vale Hotel soon after 11.00 pm. There was a band playing (T 30). They resumed drinking. The incident occurred at about 1.30 am on the Sunday morning. Between 11.00 pm and 1.30 am Mr Freudenstein estimated that he consumed a further three or four schooners (Ex A, annex J(2)[16]). Mr Cross also continued drinking, although he switched to whisky (Ex A, annex J(3)[5]). 11 At about 1.30 am it was Mr Freudenstein's shout. Adjacent to the bar there was a wall with a number of doors (Ex 5, annex I). Two of the doors provided access to toilets. The door immediately opposite the bar was a fire exit that led to a stairwell (Ex 5, annex J). According to the plaintiff, the fire door was open. Indeed, he had noticed that it was open when he arrived at the bar (Ex A, annex J(2)[17]), presumably a reference to his return at about 11.00 pm. A small triangular wedge had been placed under the door as a chock to keep it open (T 31). There was an Exit sign above the door (T 31), but otherwise no sign (T 46). The door opened inwards onto a landing above the stairwell. 12 Why did Mr Freudenstein leave the bar and pass through the doorway? In his October 2001 statement, he said this: (Ex A, annex J(2)[17]) "17 ... I went to this door to have a look at the renovation work. I was curious as to the progress that was being made. ..." 13 The original Defence filed by the defendants on 12 July 2002 provided the following particular of contributory negligence: "(c) Failing to take due heed of his whereabouts, by reason of the fact that he was talking on a mobile phone at the time." 14 The Amended Defence, filed on the third day of the trial (24.2.2009), amended that particular as follows: "(c) Failing to take due heed of his whereabouts, by reason of the fact that he was either talking on a mobile phone at the time or because he was curious about the construction work taking place at the hotel whilst grossly intoxicated." 15 The issue was taken up with the plaintiff in his evidence in chief. He could offer little assistance. He said this: (T 32) "Q. ... firstly let me ask you this; why was it that you left the bar area and walked through the first door in the first place? A. I don't know if I got a phone call, or just been inquisitive because the door was open. I can't tell you." 16 Why Mr Freudenstein left the bar is a puzzle. He was about to purchase, or had purchased, two further drinks. The bar was due to close in half an hour (2.00 am) (Ex 4[11]). Diverting through an open door to a nearby landing is rather more plausible in the context of a mobile phone call than curiosity about renovations. There was a band playing. The corridor would provide something of a shelter from that noise. 17 The evidence included medical reports tendered by the parties without objection. Most reports included a history which had been provided by the plaintiff. The material, when tendered, was not subject to a limitation under Evidence Act 1995 s 136. The report of Dr Alam, dated 20 March 2002, included the following history, which presumbly was the source of the particulars of contributory negligence: (Ex A, annex C, p 2) "He had been at his usual hotel between the time of 5pm and midnight when this accident occurred. Apparently he walked out the side to answer his mobile phone. He saw a large doorway cut into the wall and walked through this. It was dark outside and there was black plastic on the tin roof below and he fell approximately one storey. Fortunately he struck softish turned up ground." 18 Returning to the plaintiff's account, he asserted in his October 2001 statement, that opposite the fire door at the end of a three metre corridor there was a large hole (Ex A, annex J(2)[17]). There was no plywood boarding (Ex A, annex J(2)[22]). He recognised that it was an opening to the building site (T 62). It had rough edges in the shape of a door and had just been knocked through (T 62). To pass through the doorway, he had to step up 500 mm, which was at least twice an ordinary step (T 68) (cf Ex 5, annexs O and S). Mr Freudenstein described what happened in these words: (Ex A, annex J(2)[18]) "18 Once again I became curious regarding the renovation work and I walked through this hole in the wall. It was very dark outside but I could see black builders plastic covering the construction work. It was not raining but the plastic was wet and I remember thinking that this was probably from heavy dew. I walked out onto this plastic and my next recollection was that I was lying on the dirt having fallen from a height." 19 When giving evidence, Mr Freudenstein elaborated. He said: (T 33) "Q. What did you do? Take us through your movements after going through the hole in the wall? A. Once I went through the hole in the wall, I could see the renovations they were doing in the new part of the hotel, because I saw the blackout on the windows. So the further I walked the more I could see what they were doing in the new hotel.

[41]

The evidence of the hotel manager. 39 The hotel manager, Mr Bradley Jenkins, began work on 11 April 2001, a matter of days before the accident. He was not working on the night of the accident. The duty manager was Mr David Dunkerley. The person behind the bar was Ms Joanne Hymas (Ex 4[2]). He was made aware of the incident by Mr Dunkerley a week later (T 112) as he acknowledged in his statement (Ex 4[16] and [20]). Oddly, Mr Jenkins included in the same statement the following, referring to the Statement of Claim issued on 19 April 2002: (Ex 4[23]-[24]) "23 I was not aware of the Hotel area being hazardous. I was not made aware of the alleged accident until after the Statement of Claim was issued and I received the court documents. 24 By this time the construction works had finished. I was therefore unable to inspect the site (at) the time of the alleged accident." 40 These paragraphs overlook the earlier reporting to him by Mr Dunkerley. 41 Neither Mr Dunkerley nor Ms Hymas, nor indeed any staff member on duty that night, was called to give evidence. Mr Jenkins acknowledged that he passed their names to the solicitors for the defendants (T 118). No explanation for their absence was provided. The plaintiff seeks a Jones v Dunkel inference that their evidence would not have assisted the defendants. I will return to that issue below. 42 Mr Jenkins said that, after joining the hotel and before the incident, he was given a tour of the premises by the licensee, Mr Scott Lane. He said this: (Ex 4[17]) "17 ... I knew that everything was locked down and you could not get into the downstairs bar or other construction areas unless they let you in. ..." 43 He added: (Ex 4[18]) "18 ... During this tour with Scott Lane you could not access any area where construction work was being undertaken. If there was a closed door to any part of the construction area you would have to ask one of the construction workers to let you through that door. I knew every area of the Hotel from back to front." 44 When giving evidence, Mr Jenkins elaborated: (T 124) "A. Everything was key locked on to a different key set by the builders and there was no key access for the management of the hotel, so anywhere where there was construction you could not actually get into that construction area and then they bought in the locksmiths at the end and changed them over." 45 When cross examined about that issue, his only reservation concerned whether the door in the upstairs bar was a Fire Exit (T 125). He added: (T 125) "Q. Are you saying, though you don't know the position if it was a fire exit, then it may have been necessary to leave it unlocked; if it wasn't a fire exit then it should have been locked? A. It would have been locked, yeah." 46 The main entry foyer operated as a Fire Exit and a further Exit had been created during construction in the south eastern corner (T 125), near the storeroom (T 141). Mr Jenkins later said this, referring to annotations on a plan annexed to his statement: (T 142) "Q. Do you know off the top of your head how many fire escapes the hotel would likely have had? A. I think as a general rule there is one metre for every 100 people. So as far as that area went, I don't think they ever had more than 100 people there, to be quite honest. I don't know what--

[52]

The evidence of the builder. 49 Mr John Duignan is a builder and has been since the age of 18 years, when he completed his apprenticeship. He is now 58 years old. For the last decade or so he has specialised in the construction and refurbishment of hotels (Ex 5[3]). One gathers that the Mona Vale Hotel was one of the earlier hotels that he renovated. He was appointed project manager. He resided in Victoria and, whilst the job was underway, occupied quarters within the hotel itself. In 2001 he typically remained in Sydney three days a week (Ex 5[15]). He worked closely with Mr Paul Mignon, the site supervisor, who likewise came from Victoria and had been provided with quarters at the hotel. 50 Mr Duignan provided a statement dated 15 December 2009, which was served (Ex 5). The statement was expressed in strong terms, often adopting the language of an advocate rather than a witness. He described, by reference to an annexed plan (Ex 5, annex A), the renovation of the hotel, including the installation of an external fire door, being the hole through which Mr Freudenstein walked. Jackhammers were used to create an opening. Chip board sheeting was placed on the awning roof to provide a platform whilst work was carried out. He said this: (Ex 5[22(a)]) "22(a) ... Essentially, we constructed the temporary platform consisting of the chip board sheeting and a wooden railing so that we could work off the wooden platform in making the door opening in the exterior Hebel wall in a safe and orderly manner." 51 Mr Duignan returned to Melbourne on the Thursday before Easter (T 222). One infers that work continued in his absence until the end of the day. He could not say from his own knowledge whether the hole created for the fire door had then been boarded up (T 224). He plainly inferred that it had, based upon what he described as standard industry practice. He said this: (Ex 5[20]) "20 If there was a hole in the exterior Hebel wall it was never left open and it was boarded up with plywood at the end of every day. This is standard practice in the building industry for obvious safety and security reasons and I observed it being boarded up." (emphasis in original) 52 Mr Duignan added that, not only was the hole covered with plywood, but it was the practice to secure the plywood by bracing positioned on the outside and attached to the roof (T 246). Props would be placed behind the plywood so that people could not readily get through (T 216). Mr Duignan said this: (T 246/7) "Q. So to get through it you would have to do what? A. You would have to force it to get through it.

[53]

Q. Force it and push the bracing away. A. Yes." 53 Beyond the door and on the awning, safe practice required a safety fence about a metre high with protective mesh, providing a more effective safety barrier. Mr Duignan's statement included the following: (Ex 5[31(e)]) "31(e) ... I cannot recall whether this was in place at the Hotel but can say that it was always my standard practice to have such protective mesh in place and there would have been no exception made at the Hotel as it is standard industry procedure and protocol, without exception." 54 Mr Duignan was then shown the photograph taken by Mr Cross one week after the accident (Ex B, photo 5). It showed black plastic on the awning roof. He acknowledged that it did not include a handrail or barricade (T 219). He provided an explanation. The barricade had been removed shortly before in order to permit the placement of the gantry catwalk, which would connect the fire door with another section of the hotel (T 219). However, there were a number of difficulties with that explanation. First, the photograph showed a door frame but no door. Mr Duignan said that the door frame and the door would have been installed on the same day, as part of the same process (T 221). That was an explanation given without reference to contemporaneous documents, almost nine years after the event. It does not explain why the door was open (and therefore not visible) at the time the photograph was taken. No work appeared to be in progress. On the other hand, the photograph depicting the door frame, with no visible door, was consistent with the description provided by Mr Cross. Secondly, the explanation presupposed that the catwalk had been installed the week following Easter. Again it was an explanation given from memory and without reference to site diaries or contemporaneous documents. The week following Easter was a short week. Monday was a holiday and Tuesday was a rostered day off for building workers (T 254). The language of Mr Duignan's statement, on the other hand, suggested a rather more protracted process. For instance, he said this: (Ex 5[21]) "21 The area where the plaintiff entered the awning area of the Hotel and marked with the Roman numeral 'IX' was to eventually become an additional further fire escape at a later stage of construction. The proposed fire escape marked with the Roman numeral 'IX' was to lead to a 'catwalk' on the awning roofline ..." (emphasis added) 55 Later, Mr Duignan annexed a photograph of the catwalk (annex Q) that was described in these terms: (Ex 5[59]) "59 Annexed to this my statement and marked with the letter 'Q' is the 'catwalk' area that was finally constructed between the exit in the exterior wall (Roman numeral 'IX') ..." (emphasis added) 56 On the other hand, Mr Jenkins in his statement, said the builders were "in the last weeks of construction before all renovations of the hotel were complete" (Ex 4[17]), so perhaps one should not read too much into the choice of words in Mr Duignan's statement. 57 Thirdly, one gathers that the gantry or catwalk, once put in place by the crane, then required the construction of a metal handrail, as depicted in the photographs (Ex 5, annexs 'P' and 'Q') (cf T 228). So there was still work to be done on the roof awning. In this context, Mr Duigan's statement included the following paragraph: (Ex 5[25]) "25 Prior to excavating the exterior Hebel wall we measured and ordered the steel door frame and the fire door and then measured up the catwalk. Until the fire door is in place and the catwalk was measured up and constructed and installed, the wooden hand rails and protective boarding remained in place as a matter of safety for all workers and as a matter of accepted construction and building industry practice." 58 Mr Duignan was taken to that paragraph in cross examination and the following question was put: (T 228) "Q. Your expectation was that that handrail, that safety handrail, was in place until the catwalk was in place? A. That's how that reads, but logically my expectations were until that door was in place and it was lockable and made safe we didn't remove handrails or temporary barriers." 59 Finally, and perhaps most tellingly, the implication of Mr Duigan's evidence concerning the practices which he assumed the company had followed, suggested that there should have been debris as a consequence of Mr Freudenstein's penetration of the opening. The plywood and the props must have been displaced and presumably were left lying on the roof. The open hole must have been exposed. The wooden barrier and the plastic mesh had either to be broken or penetrated (either under or over). Yet nothing of the sort was drawn to Mr Duignan's attention. Mr Duignan said this: (T 247) "Q. But did anyone draw to your attention that the plywood had been displaced and the struts supporting it? A. No. Had no knowledge that any incident occurred. No knowledge whatsoever." 60 He added that, if someone were to crash through the guardrail or disturb the mesh, he would have expected to have been told (T 251). Nothing of the sort was drawn to his attention (T 251). He said this: (T 247) "Q. When did you find out for the first time that an incident had occurred? A. Again I'm calling on my memory but I believe it was about 18 months later. An insurer rang me and said, "What precautions did you take on that day?" And I was perplexed until I knew what was going on. I was never notified by anybody."

[55]

Q. It wasn't locked during the course of your construction works? A. It wasn't locked, no." 63 The door was incapable of being locked from both sides (T 242). It could be opened from the hotel side but, once closed, could not be opened from within the stairwell. So the locking mechanism had nothing to do with the safety of those within the bar. It did not prevent access to the construction zone, as Mr Duignan acknowledged (T 240). Nonetheless, as a matter of policy, Mr Duignan said that he would have expected the fire door to have remained closed (Ex 5[36]). More than that, he would have expected a sign on the door warning patrons. He said this: (Ex 5[33]) "33 ... It was known to all including staff of the Hotel and patrons of the Hotel, as it was a regular or ' locals' pub, that beyond this point there was a construction zone with building works being undertaken beyond this point. To the best of my knowledge we had a sign attached to this existing but unused fire escape door that said either ' NO ACCESS' or ' NO ACCESS - CONSTRUCTION ZONE'." (emphasis in original) 64 Mr Duignan, of course, could not say whether there was a sign on the door on the night of Mr Freudenstein's accident, since he was in Victoria (T 227). He also explained that he had no stationery. When he wanted a sign, he would ask the hotel staff to put a sheet of A4 paper in large bold letters on the door, to make it clear that it was a construction zone (T 238/9). 65 In cross examination, the following was put to Mr Duignan, describing the position as asserted by Messrs Freudenstein and Cross: (T 257) "Q. Well, would you agree if the assumption I put to you is correct, open door, no sign, void in wall, no safety barriers, no mesh, if that was what was happening in reality on the night, that was a woeful breakdown in the system of safety on that site? A. Correct. And if that door was ajar with a wedge I would be very disappointed that somebody had done that. It's not, it wasn't our intent to do something like that." 66 Mr Duignan acknowledged that, in such circumstances, there would be a very real risk of injury. His evidence continued as follows: (T 258) "Q. And once through the first door, if the plywood wasn't in place there would have been vastly magnified the risk of injury by the absence of the plywood. Do you agree? A. Yes." 67 Suggestions were put concerning alternative systems that might have been employed to prevent entry by patrons through the fire door, or make the position clearer than an A4 sign. The suggestions included a wooden bar suspended between two stands, or a tape. Mr Duignan said this: (T 257) "Q. Numerous other things you could have done to make it abundantly clear to anyone minded to walk through that door that it was a strictly no go zone? A. Your Honour, it's all up to interpretation. He is right. How you want to interpret the security of that area is there are many ways that it could be done. We chose to post a sign on the door expecting people to read it and understand what it said. Maybe we did the wrong thing, I don't know, you know, whatever we did may have been the wrong thing. In some circumstances we have to do the best we can to make sure we secure the site and make it safe."

[56]

68 Counsel for the plaintiff, in written submissions, drew attention to the failure of the defendants to call anyone from the hotel present on the night of the accident, and someone from the building company familiar with the state of the premises when construction work ceased on the Thursday before Easter. The witnesses included: (PS [18]) The hotel duty manager on Saturday 14 and Sunday 15 April 2001, Mr David Dunkerley. The person serving behind the bar, Ms Hymas. The site supervisor of building works, Mr Paul Mignon. 69 Counsel asserted that the absence of such witnesses had not been properly explained, or indeed explained at all. A Jones v Dunkel inference should therefore be drawn. The following was said: (PS [20] and [21]) "20 The Defendants were made aware of the Plaintiff's fall about a week after its occurrence (T110). Records of which hotel staff were working were available (T112). Mr Dunkerley informed the Second Defendant of the incident within a week of the incident (T112). 21. It was incumbent upon the Hotel to make a report of the incident (T113). The Second defendant, a then Manager, later Licensee would have expected an incident report. Rosters were kept (T114). It was available to the Defendants to ascertain which staff were working that evening (T115). Mr Dunkerley was still in the employ of the Hotel when the Statement of Claim was served (T116). The Defendants had the opportunity to make enquiries of staff in relation to the allegation of negligence -- The Second Defendant can't recall if he made those enquiries (T117). The Second Defendant made available to the Defendants lawyers the names of the staff working on the night in question. He gave the lawyers the names of Mr Dunkerley and Ms (Hymas). He told the lawyers these people were available to make statements. The Second Defendant asked Mr Dunkerley for something in writing - that document was called for and not produced (T118). 'Matt' was working at the Hotel that night - his surname was ascertainable from payroll/roster records which were to hand (T119)." 70 Counsel for the defendants responded that this was not a case where the witnesses "were solely within the feasance province of the defendants" (DS [25]). It was open to the plaintiff to call these witnesses if he chose (DS[25]). However, the witnesses identified were, I believe, very much in the defendants' camp and their whereabouts capable of being ascertained by the defendants. Mr Paul Mignon, for instance, who was site supervisor and worked closely with Mr Duignan, was clearly well known to Mr Duignan. Mr Duignan said this: (T 239) "Q. But you know where you can get hold of Mr Mignon? A. He's retired now but, yeah, I probably haven't spoken to him for 18 months - two years.

[58]

Q. So you did give it to the solicitors acting for the defendant? A. Yes." 71 There being no explanation for their absence, I infer that the evidence of the witnesses I have identified (amongst a somewhat longer list provided by the plaintiff) would not have assisted the defendants. 72 I return to the broad issues which were identified at the beginning of this judgment, namely: First, was the fire door open or closed? Secondly, was there a sign on the door? Thirdly, was there plywood covering the hole created for the fire door held in place by props secured to the awning roof? Fourthly, was there a barrier fence, set back from the edge of the roof and plastic mesh fastened to that fence? 73 Dealing with the first of these issues, it was ultimately common ground that the door was not locked. But was it closed? The plaintiff and Mr Cross said that it was not. Indeed, it was held open by a chock. No-one from the hotel was called to suggest otherwise. Mr Jenkins believed, as it happens wrongly, that the door was closed because it was always locked by the builders and they had the only key. Mr Duignan could only say that it was the policy of the company and of the builders that the door be kept closed. 74 I accept the evidence of Mr Freudenstein and Mr Cross that the door was open and held open by a chock. 75 The second issue concerns whether there was a sign saying, in effect: "No Access - Construction Zone". If the door was open, as I accept, the sign was to some extent irrelevant. An open door was capable of being viewed by patrons as an invitation to enter, or at least permission to enter. The sign, if there was one, was liable to be missed or ignored because, unlike a sign on a closed door, it was not immediately visible. It did not confront the entrant as he sought to pass through the door. 76 Mr Freudenstein said that there was no sign. Mr Cross said the same thing. No-one from the hotel said that there was a sign in place on that night. The system of posting signs on A4 paper, as described by Mr Duignan, seems to me very haphazard and makeshift. The builder was not the one who affixed the sign. Instructions were given to hotel staff and it was left to them. Somehow, having printed a sign on A4 paper, it was to be affixed to the door. Such a sign, one would imagine, would be liable to fall off. In my view, it was no substitute for a professional sign made from rather more robust material, such as one sees on construction zones and building sites throughout the city. 77 The third issue concerns whether there was plywood covering the fire door opening, secured by props fastened to the roof. Mr Freudenstein said that there was no such barrier. He simply passed through the door by stepping up. Mr Cross later went looking for him. He saw no barrier, simply a void. However, if one assumes there was a barrier and Mr Freudenstein had pushed it down, then there would have been a void, although there would also have been debris. Mr Cross' evidence does not therefore take the matter much further. 78 Mr Jenkins said that he did not know of the opening or of the plywood. Mr Duignan gave evidence concerning the appropriate practice, which required plywood secured by props. One infers that he expected that practice to have been followed. But was it followed? Mr Mignon was not called, nor anyone to say that it was followed. It was Easter and the workers were about to take a five day break. If, upon their return, the building site had been significantly disturbed by forcefully displacing a large sheet of plywood, which had been secured by props, one would have expected that to have been noticed and drawn to the attention of management. The absence of any evidence suggesting that there was such an intrusion, is consistent with the plaintiff's account that there was no such barrier. 79 But leaving that aside, the account given by Mr Freudenstein seems to me much more plausible than the alternative. All possibilities must, of course, be viewed in the context of Mr Freudenstein's considerable intake of alcohol. He said that his curiosity was aroused as to what was happening in respect of the renovations. If you assume that he was standing in the bar, about to order a drink for himself and Mr Cross, and that he looked through the open fire door, it is instructive to ask what he might have seen. If there was a barrier, all he would have seen would be a corridor and an opening covered by a plywood barrier. It is hard to imagine anyone's curiosity being aroused by that. On the other hand, if he went from the bar through the fire door onto the landing, perhaps to take a mobile phone call, and had there been a barrier, he would still have seen an opening covered by plywood. Again, it would be odd to be so curious about the renovations as to be moved to physically displace the barrier. No doubt displacing the barrier would have been difficult and would have caused significant noise, which would make such behaviour even more odd. On the other hand, if you assume that the plaintiff went from the bar onto the landing to take a mobile phone call and you further assume an opening in the opposite wall, but no barrier, then it is less difficult to understand that someone's curiosity may have been sufficiently aroused to peer out and even step up in order to have a better look. 80 Any analysis is to some degree speculative. Nonetheless, Mr Freudenstein struck me as an honest witness. I think it likely that he went onto the landing to take a mobile phone call and found that there was a hole and no barrier. That appears to me far more plausible than the alternative suggestion, made by the defendants, that he removed the barrier. 81 The final issue concerns the additional barrier fence erected on the roof itself to prevent workmen accidentally falling from the roof. Again, Mr Freudenstein said that there were no such barriers. He had a reasonable recollection of his actions before the fall. Again, it is far more plausible that he accidentally fell off the roof, not appreciating precisely where the edge was, rather than deliberately climbing over or under a barrier which had been placed upon the roof. Certainly he was affected by alcohol, but he knew he was on a roof. 82 Mr Cross said that there were no barriers. However, he also said that it was very dark. Indeed, he used the expression "pitch black" (T 99). His observations of the roof in these circumstances are of limited assistance. The photograph taken a week later was consistent with there being no barrier, although the possibility that there had been a barrier and that it had been removed to allow the positioning of the gantry must be acknowledged. 83 On balance, I think it likely that there was no barrier fence (and no plastic mesh) on the roof at the time the plaintiff fell. 84 So I accept the plaintiff's account of the way in which the accident occurred. The fire door leading to the corridor and stairwell was wedged open. There was no sign. There was no plywood covering the hole in the exterior wall and no props securing that plywood. There was no barrier on the roof and no plastic mesh. 85 Against that background, let me turn to the legal issues concerning duty, breach of duty and contributory negligence.

[60]

Was there a duty? 88 In Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, the High Court, by majority, abandoned the fine distinctions of occupier's liability in favour of a general duty, as expressed by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614. Deane J, in that case, said this: (at 662/3) "... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk." 89 Nonetheless, the relationship between the occupier and the entrant, and the circumstances surrounding his entry, remain important. In Phillis v Daly (1988) 15 NSWLR 65, Samuels JA, having referred to Australian Safeway Stores (supra), said this: (at 67/8) " ... That means, I take it, that the classical categories of entrant may still be accorded some potency. It is perfectly rational to assume that the degree of care which is appropriate to a trespasser, whose entry may fall at any point in a long continuum of knowledge, perception and expectation on the occupier's part, may be much less than that which can reasonably (be) demanded by the business visitor, whose appearance is anticipated and welcomed, and less than that owed to someone whose entry is anticipated but merely tolerated. Equally, the nature of the danger will be a necessary constituent in working out whether any breach has occurred since it will be material to the foreseeability and magnitude of the risk, and the requirements of the defendant's response." 90 More recently, in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330, Gummow J said that duties of care are not owed in the abstract, but are "obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question" (p 345 [43]). His Honour added: ([44]) " ... a duty of care involves a particular and defined legal obligation arising out of a relationship between an ascertained defendant (or class of defendants) and an ascertained plaintiff (or class of plaintiffs). Sometimes, the determination of that legal obligation is more complicated than it was at the time Lord Atkin announced his 'neighbour' principle in 1932. The law now recognises types of loss and kinds of relationships which are different from those of earlier days." 91 Here Mr Freudenstein was a lawful entrant. The hotel owed him a general duty to take reasonable care to avoid the foreseeable risk of injury (South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113, per Ipp AJA at 137 [151]). In the context of an action against an hotel, the High Court in CAL No. 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390, recently expressed the duty in these terms: "[31] There is no doubt that the Proprietor and the Licensee owed Mr Scott various duties to take reasonable care - for example, a duty to take reasonable care to ensure that the premises were physically safe, and a duty to take reasonable care to ensure that the equipment in operation, like gambling machines and kegs, did not injure him." 92 The duty, however, was not limited to the static nature of the premises. An important circumstance, relevant to the scope of the duty, was the activity within the premises, which involved the sale of alcohol. In South Tweed Heads Rugby League Football Club (supra), Ipp AJA said this: (at 137) "[152] This duty ordinarily concerns risk of injury from the condition of the premises, but this is not an inevitable limitation on the scope of the duty. If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor [2002] NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises." 93 In the context of a licensed restaurant, the High Court in Adeels Palace Pty Limited v Moubarak [2009] HCA 48; (2009)239 CLR 420, identified a number of matters which pointed to a restaurant owing patrons a duty of care. The circumstances included: (at 436) "[25] ... Secondly the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, 'harm [arise] from violence and other antisocial behaviour'." (references omitted) 94 Of course, the circumstances giving rise to Mr Freudenstein's injury do not involve violence or aggression. However, another consequence of the sale of alcohol is that, notoriously, it may impair the judgment of those who consume it. In CAL No. 14 Pty Limited (supra), Gummow, Hayden and Crennan JJ said this: (at 414) "[54] ... Virtually all adults know that progressive drinking increasingly impairs one's judgment and capacity to care for oneself. Assessment of impairment is much easier for the drinker than it is for the outsider." (references omitted) 95 That is not to say that the hotel owed Mr Freudenstein (unless his circumstances were exceptional) a duty to monitor and minimise the service of alcohol to him as a customer in order to protect him from the consequences of the alcohol he chose to consume (CAL No. 14 Pty Limited, supra at [52]). Nonetheless, a relevant circumstance in determining the scope of the duty was the knowledge of the occupier of the characteristics of entrants. Although dissenting as to the outcome, McHugh JA expressed the principle in these words in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431: (at 460/1) "[76] The duty of care is owed to each entrant personally. It is not owed to entrants as a class. If, for example, the Commission knew that a blind person was about to enter the Reserve, the Commission's duty would be measured by reference to the particular circumstances of that person's disability. The commission was not aware that the plaintiff was adversely affected by alcohol. But it was reasonably foreseeable that a person such as the plaintiff, affected by alcohol, might come to the Reserve and go beyond the limit of the car parking area - a limit that was marked by the low posts and logs. That being so, the Commission was under a duty to exercise such care as would reasonably protect a person such as the plaintiff from the reasonably foreseeable consequences of her condition, including the possibility that she might by inadvertence or inattention expose herself to the risk of injury." (references omitted) 96 An illustration of the concept is provided by an unreported Full Court decision in Queensland (Hogan v Rusty Rees Pty Ltd (Supreme Court of Queensland, Connelly, Ryan and Cooper JJ, 8.6.89, unreported). The action concerned an accident on an internal staircase within the hotel involving a person staying at the hotel. Connolly J (Ryan and Cooper JJ agreeing) said this: "The learned trial Judge concluded that the duty of care owed by a proprietor of licensed premises such as these is not limited to a duty owed to the ordinary reasonable person but that he must have in mind inebriated customers or guests, particularly as the hotel provided no desk attendant or night watch system and was at no pains to explain to its customers or guests what the keys they are given are for. In all the circumstances his Honour considered that the steps should have been as effectively sealed off at the bottom as they were at the top. His Honour did not consider that the means taken to block the stairs off went far enough, bearing in mind that people who had been drinking might wish to get back into the hotel." 97 In Lanahmede Pty Ltd v Koch [2004] SASC 204, although dealing with an action where alcohol had excited aggression, the South Australian Full Court (Perry, Bleby and Gray JJ) dismissed an appeal. Bleby J made the following comment: "[2] ... There can be no doubt that Lanahmede was under a common law duty of care to its patrons. The content of that duty of care must be informed by the fact that patrons will, from time to time, become affected by liquor and may become subject to aggressive, disorderly or offensive behaviour. The duty extends to taking steps to ensure that reasonable precautions are taken to ensure the safety from physical harm of those who may become so affected, as well as those who may be affected by such conduct of others." 98 Gray J added the following: "[35] In the present case Lanahmede was under an admitted duty to take care with respect of its patrons. It could be expected that patrons would be affected by alcohol with an attendant risk of aggressive, offensive and disorderly behaviour. Lanahmede could also expect patrons' attention to be diverted to the social occasion particularly having regard to the Christmas celebrations. Patrons were likely to be relaxed and to have a reduced awareness of possible dangers." 99 Here, the hotel manager, Mr Jenkins, and the builder, Mr Duignan, each foresaw the risk of injury to hotel patrons unless precautions were taken in respect of the renovations then underway at the hotel. It is clear that the defendants were under a duty to take reasonable care for the safety of the plaintiff.

[61]

Was there a breach of duty? 100 The classic formulation of breach was provided by Mason CJ in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, where he said: (at 47/8) "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 101 That formulation, with refinement and elaboration, has been adopted in the Civil Liability Act 2002, ss 5B and 5C. Here, a reasonable person in the position of the defendants would have foreseen that the continued operation of the hotel, whilst building work was taking place, involved a risk of injury to patrons using the hotel. The risk was not only foreseeable, but plainly foreseen by the hotel and the builder. 102 Further, the risk of injury was not insignificant. The hotel was operating at night from a bar on the first floor of the premises, which was roughly four metres above ground level. The renovations were not being undertaken around the clock. The area being renovated was in darkness or semi darkness. Mr Jenkins said there had been no previous incidents during construction (Ex 4 [25]). However, one does not know whether the hotel usually operated from the upstairs bar with the fire door open. Even if it did, the issue is whether a reasonable person would have taken precautions to prevent danger to patrons arising from access to the building work, and whether it was unreasonable to ignore that danger (Francis & Ors v Lewis [2003] NSWCA 152, per Mason P (Hodgson and Tobias JJA agreeing) at [57]. Here, Mr Jenkins and Mr Duignan each accepted the need for precautions preventing access by patrons to the building work. 103 However, foreseeability of injury does not determine breach. The Court is obliged to balance the reasonableness of the defendants' conduct in response to the foreseeable risk. The question is, what would a reasonable person have done in the light of the matters identified by Mason CJ, namely: the magnitude of the risk the probability of its occurrence the expense, difficulty and inconvenience of taking alleviating action. any other conflicting responsibilities which the defendant may have? 104 Here, unless steps were taken to prevent access to the building work, there was the grave risk of serious injury, including death. As to the probability of its occurrence, it was perhaps moderate. There was I believe, a real risk of injury if a patron from the hotel, and especially one affected by alcohol, entered the building site. The defendants need not foresee precisely how an accident may happen. The risk of injury could not be considered negligible or remote such that a reasonable person would reject it as unworthy of consideration (cf McHugh J in Romeo v Conservation Commission of the Northern Territory (supra) p 461 [78]). Indeed, the hotel and the builder believed that the risk had been addressed by measures which, in fact, had not been taken. 105 The precautions identified by the plaintiff, which ought to have been taken, included those steps which the defendants asserted (mistakenly, according to my findings) were taken, namely: ensuring that the fire door in the upstairs bar remained closed; providing a sign on the door stating: " No Access: Construction Zone" ; providing a plywood barrier (secured by props) covering the hole in the external wall; providing a handrail forming a barrier and mesh. 106 Dealing with each of these measures, there would obviously be no difficulty or expense in closing the door. However, closing the fire door would not prevent access, unless the door were locked. It appears that the door was incapable of being locked because it was a fire door, even though not used as part of a fire escape during construction work. The plaintiff, in these circumstances, suggested the alternative of a tape secured on one side of the door and passing across the door frame to the other side, to make it clear to patrons that entry was forbidden. That message should have been reinforced, according to the plaintiff, by a sign on the door itself. Alternatively, a barrier in the form of a wooden pole slung between two supports, such as one sees at a cinema whilst they are being cleaned, would have been a simple and obvious way of getting the message across. A professional sign stating: "No Access: Building Work", such as one sees on city building sites, would presumably cost very little. Indeed, so common are they, one assumes such a sign would be available off the shelf from an appropriate store. But, even if that were wrong, I infer it would cost very little to manufacture and properly affix. A paper sign, fixed somehow or other, is plainly no substitute. 107 The third suggestion (plywood to cover the hole and props to hold it in place) are standard items on any building site. 108 The final precaution, the barriers and mesh on the roof itself, are rather different from the other precautions suggested. Such barriers were in place to safeguard workers when they were working on site (cf DS [28]). They were not a precaution contemplated in the context of patrons drinking in the bar. No doubt there is expense and inconvenience in erecting such barriers. It would hardly be reasonable, assuming other precautions, to insist upon such a measure in respect of patrons in the hotel. 109 Leaving the barrier and mesh to one side, it was not suggested by the defendants in respect of the other precautions, that there were competing responsibilities on the part of the hotel or the builder which conflicted with the implementation of such measures. 110 Balancing these matters with the foreseeable risk of injury, I believe the defendants were in breach of their duty. The primary responsibility for some aspects rested with the builder, especially in relation to blocking the hole in the external wall. One would infer that it was the hotel employees who opened the fire door. There was no issue of apportionment between defendants. It is enough, therefore, to say that the defendants were in breach.

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Causation. 111 In March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506, Mason CJ said this, concerning the issue of causation: (at 515) "Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the 'but for' test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments. However, this approach to the issue of causation (a) places rather too much weight on the 'but for' test to the exclusion of the 'common sense' approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn : 'it is all ultimately a matter of common sense' and '[i]n truth the conception in question [i.e, causation] is not susceptible of reduction to a satisfactory formula." (references omitted) 112 Here, part of the plaintiff's complaint concerns the absence of a sign and therefore a failure to warn. In the context of a failure to warn, McHugh J, in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, summarised the principles relating to causation, where there is a failure to warn, in a series of propositions which included the following: (237 at [34]) "(1) a causal connection will exist between the failure and the injury if it is probable that the plaintiff would have acted on the warning and desisted from pursuing the type of activity or course of conduct involved; (2) no causal connection will exist if the plaintiff would have persisted with the same course of action in comparable circumstances even if a warning had been given;" 113 But for the defendants' breaches, the accident would almost certainly not have occurred. Had the fire door in the upstairs bar been closed with a barrier or tape in front of it, and had there also been a sign on the door, the plaintiff, I believe, would not have gone through the door. Indeed, I think it very likely that, if the fire door had simply been closed with an appropriate sign, it would not have occurred to the plaintiff to go through the door. 114 Further, even if the fire door had been open with no sign, had there been a plywood barrier covering the hole in the external wall, again I believe it implausible to suggest that the plaintiff would have violated such a barrier to satisfy his curiosity about the renovations. 115 It was the open fire door leading from the bar which allowed the plaintiff to enter the corridor, and then the absence of a cover over the hole which allowed him to see out onto the building site, thereby arousing his curiosity. As I will shortly describe, in the context of contributory negligence, his actions in seeking a better look were no doubt the product, at least in part, of an impaired judgment, the consequence of alcohol. The issue of policy and scope must be addressed in the context of a hotel serving liquor until late into the night. In that context, a failure to take reasonable care, exposing patrons who may be affected to the risk of serious injury, makes it appropriate, to my mind, that the scope of the defendants' liability extend to the harm so caused. In other words, approaching the issue in a common sense way, one would identify two causes: the failure of the hotel and builder effectively to insulate the building site from the operating hotel, and the failure of the plaintiff to take reasonable care for his own safety. The defendants' breach of duty was a substantial and effective cause of the accident and the plaintiff's conduct contributory negligence, rather than an intervening cause. 116 The plaintiff has established factual causation and that the scope of the defendants' liability should extend to the harm so caused. I now turn to the issue of contributory negligence.

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Contributory negligence. 117 Contributory negligence at common law is the failure of the plaintiff, in the circumstances, to take reasonable care for his own safety (Caterson v Commissioner for Railways NSW [1973] HCA 12; (1973) 128 CLR 99). The onus of proving contributory negligence is upon the defendant. Where the damage suffered by the plaintiff is the result, partly of his own failure to take reasonable care (contributory negligence) and partly of the wrong of another person, the damages recoverable are reduced to the extent the Court thinks it just and equitable, having regard to the plaintiff's share in the responsibility for that damage (s 9(1) Law Reform (Miscellaneous Provisions) Act 1965). 118 In Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25, in the context of the reduction of damages arising under the Law Reform Act, Hayne J adopted the approach described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529. In that case, the following was said: (at 532) "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 119 Here the plaintiff had consumed a significant amount of alcohol. According to Professor Starmer he would, as an habitual drinker, have developed significant tolerance. Nonetheless, he would still have been "grossly intoxicated" (Ex 1, report 18.10.09, p 4), although that opinion was expressed on an assumption as to Mr Freudenstein's weight (87 kg), which was less than his actual weight (100 kg). Professor Starmer added that his state of intoxication may explain why Mr Freudenstein chose to inspect renovations in the dark at about 1.30 am (Ex 1, report 18.10.09, p 4). 120 However, Mr Freudenstein's impaired judgment and reduced appreciation of danger as a consequence of alcohol, are not matters which ameliorate his culpability when assessing contributory negligence. The test is objective (Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552). 121 In forming a view as to what is "just and equitable", It is instructive to look at Joslyn v Berryman and the determination ultimately made. A passenger in a car (Berryman) sued the driver (Joslyn) as a result of a motor vehicle accident. The passenger, who was severely intoxicated, had originally been driving the car. However, he exchanged places with the driver, who was also intoxicated. He allowed her to drive and soon after the car overturned. He was severely injured. 122 The trial Judge found the passenger guilty of contributory negligence and reduced the damages by 25%. The Court of Appeal determined that the perception of the passenger, at the time of the changeover, was so impaired that he would not have known the level of impairment of the driver. The Court therefore overturned the finding of contributory negligence. 123 The High Court allowed an appeal, and remitted the matter back to the Court of Appeal for reassessment on the issue of contributory negligence. McHugh J identified the test in assessing contributory negligence in these words: (at 564) "[32] The test of contributory negligence is an objective one. Contributory negligence, like negligence, 'eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question'." 124 The rule has one exception. In respect of children the standard varies depending upon the age of the child. There were cases which supported a similar concession in the context of old age. An elderly pedestrian, for instance, may not be capable of moving as fast as someone who is younger. However, the rule makes no concessions for other idiosyncrasies, even though they may be material to the accident, such as impaired hearing or sight (at 565). The test to be applied, in determining whether there was contributory negligence in circumstances of intoxication, was formulated by McHugh J in these words: (at 566/7) "[38] Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition - if there could be such a person - would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person - a sober person - would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication." 125 His Honour then identified the matters in that case which would cause an ordinary reasonable person to infer a lack of care on the part of the passenger, Mr Berryman. The facts were as follows: (at 567) "[40] ... First Ms Joslyn had lost her driver's licence and probably had not driven for some time. Secondly, she was insisting on driving a vehicle whose speedometer did not work and which had a tendency to roll over and she had had no experience of driving the vehicle. Thirdly, Ms Joslyn had been drinking for about the same length of time as Mr Berryman who was unfit to drive. Fourthly, the amount of alcohol consumed by Ms Joslyn, the time that had elapsed since she stopped drinking and her lack of sleep confirmed that she also was probably unfit to drive. Mr Berryman's inability to keep awake and his agreement to stop driving increased the probability that her drinking and lack of sleep made her unfit to drive." 126 Other members of the Court, with some variations, took a similar view. When the matter was remitted to the Court of Appeal (Berryman v Joslyn [2004] NSWCA 121), the Court (Mason P, Beazley and Tobias JJA) adopted the matters suggesting culpability on the part of the passenger as set out in McHugh J's judgment. They assessed the plaintiff's culpability at 60%. The verdict was reduced accordingly. 127 Joslyn v Berryman has since been applied a number of times (The Nominal Defendant v Lane [2004] NSWCA 405; Mackenzie v The Nominal Defendant [2005] NSWCA 180; Dos Santos v C Morris Painting & Decorating & Anor [2006] NSWCA 54). One small inroad into the objective test was made by Bell J in Russell v Rail Infrastructure Corporation [2007] NSWSC 402, where the plaintiff had a mild intellectual disability. Her Honour determined that the standard to be applied was objective. However, it was the standard expected of a reasonable adult with a mild degree of intellectual handicap. 128 I should therefore apply an objective standard, viewing Mr Freudenstein's actions from the viewpoint of a reasonable (and sober) person. That approach, incidentally, is now reflected in the Civil Liability Act 2002, and is consistent with the philosophy of personal responsibility stated by Ipp AJA in South Tweed Heads Rugby League Football Club Ltd v Cole (supra) in these words: (at 144) "[182] The recognition that, generally speaking, adult persons must assume responsibility for their own actions while intoxicated (provided that they are sufficiently in control of themselves to be able to exercise their will and to know what they are doing) underlies the treatment of such actions by the law and principles of equity relating to contract and the criminal law. There is no reason why the law relating to negligence should not adopt a similar approach." 129 Nonetheless, there is perhaps some tension between such an approach and the duty of the hotel, which is informed by the nature of the entrants of which it has knowledge. Here, the hotel was aware that those who may be exposed to danger may be affected by alcohol. Yet a more exacting standard, that of a sober person, is expected of the persons put at risk. 130 The parties made short submissions on the question of contributory negligence, which it is convenient reproduce. The plaintiff said this: (PS p 5) "[41] The Defendants allege and particularise contributory negligence in their Amended Defence. [42] The Plaintiff asserted ' There was nothing stopping me from walking out there so I walked out there to have a look '. The obvious inference from this is that had there been anything stopping him either by way of signage or barricade he would not have done so. It was not put to the Plaintiff that his senses were impaired, that he was disorientated, unbalanced, uncoordinated or that his cognition was impaired on the evening in question. The evidence is to the contrary both from the Plaintiff and Mr Cross. The Second Defendant's evidence, as discussed above, is corroborative. [43] The fact is that although it was the Defendants' view that the 'fire door' was prohibited this fact was not brought to the Plaintiff's attention. It was never put to him that he knew he was entering a 'prohibited' door or that indeed he was travelling in a 'prohibited area'. If the door was not a proper, accepted or allowed means of egress from the bar then he should not have been allowed to exit from it at all. There was no evidence, nor was it ever put that the Plaintiff had the 'full and proper knowledge' and or the cognizance alleged. [44] It is submitted, in all the circumstances, that it would not be appropriate to assess contributory negligence in this case beyond the range of 10-15%." 131 The defendants made the following submissions: (p 14) "[41] It follows from what is said above, that even if the plaintiff were to succeed, then contributory negligence must play a very significant part. The defendant submits that contributory negligence would be assessed at 100% or very close to it. In any event, the defendant submits that there should be a verdict for the defendant." 132 There can be no question that, by an objective measure, the plaintiff failed to take reasonable care for his own safety. His actions involved: First, stepping up to the door frame, 500 mm. Secondly, stepping down onto what he knew was a roof. Thirdly, doing so in the dark, when it was very black, where he could see black plastic which appeared to be wet and therefore potentially slippery. Fourthly, in order to get a better view of the room downstairs, moving away from the wall across the roof to a point where he fell off the roof. What is "just and equitable"? 133 What, then, is just and equitable as between the parties, having regard to the "assessed culpability and causal potency" of each (per Giles JA in Mackenzie v The Nominal Defendant (supra) [127])? There were a number of discreet breaches by the defendants, where there ought to have been successive barriers, safeguarding the plaintiff from risk of injury arising from the building work: First, in circumstances where the fire door could not be locked, the failure to erect a simple barrier or tape outside the fire door in the upstairs bar. Secondly, the further failure to close the door and ensure that it remained closed. Thirdly, the failure to place a sign on the fire door saying: "No Access - Construction Zone". Fourthly, the failure to cover the hole made in the external wall leading to the roof with a plywood barrier, properly secured by props attached to the roof. 134 The builder acknowledged that such circumstances would amount to "a woeful breakdown in the system of safety on the site" (supra [65]). It is material that the first defendant was operating a hotel, serving alcohol late at night. Such breaches put all patrons at risk, including some who (to the hotel's knowledge) may be affected (to a greater or lesser degree) by alcohol and their judgment impaired. 135 Turning to the plaintiff, significant culpability must attach to his actions. Admittedly he did not put others at risk, but he did put himself at risk. I accept that his action in stepping out onto the roof was spontaneous, in circumstances where his curiosity had been aroused. I also accept that, but for the defendants' negligence, which permitted access through the fire door to the corridor and then to the roof, the accident almost certainly would not have happened. The plaintiff's actions, to this extent, were opportunistic and probably impulsive. Unlike the plaintiff in Joslyn v Berryman (supra [120]), the situation did not evolve over a number of hours, with many opportunities to think better of what he was doing. I accept that it probably happened fairly quickly. 136 Having said that, there was not simply one foolish action by the plaintiff, but a succession of such actions where he moved from the corridor, to the door frame, to the roof, and then beyond. He obviously did not know the precise dimensions of the roof. Based upon a vague appreciation of its size, he clearly misjudged. However, he knew he was on the roof. Adopting the objective measure, his actions were clearly dangerous because of the risk of falling. 137 In my view, it is just and equitable to share responsibility between the plaintiff and the defendants equally. Mr Freudenstein's damages should be reduced by 50% for contributory negligence. 138 Let me then turn to the question of damages.

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Resumption of work. 156 When Mr Freudenstein resumed work, in April 2001, he was still disabled. He said, and I accept, that he was suffering from back pain and restriction of movement in his left shoulder. When asked about his duties, he gave the following evidence: (T 48) "A. Very light duties, I was doing the very minimum." 157 That was to improve. However, on Mr Freudenstein's evidence, he remained disabled, taking pain killers to ease the pain (T 48). In his statement of 24 October 2001, that is six months after the accident, he described his disabilities in these terms: (Ex A, annex J2[26]-[27]) "26 Now I cannot raise my left arm above shoulder height. If I try to force my left arm above this height I suffer intense pain in my shoulder joint. I have difficulty at work using the edger when sanding the floors because I cannot bend for more than five minutes at a time due to the pain in my lower back. 27. I now suffer with a sleep disorder and find that the pain in my left shoulder and lower back disrupts my sleep. I sometimes become moody because of this pain." 158 The statement of his employer, John Cross, made on 9 November 2001, provided the following comment: (Ex A, annex J3[9]) "... When he returned to work he could not work as quickly as (he) could before this fall. Many times I saw him wincing in pain. He told me that he had pain in his left shoulder and his lower back." 159 His wife, Michelle, in her statement of November 2001, furnished the following description: (Ex A, annex J4[11]) "11. Since this incident Doug has not been able to help me around the house with the normal household tasks such as cleaning and especially carrying the shopping. He always helped me with the shopping before this incident. Moreover, he has become difficult to live with. In the mornings he is particularly unpleasant and he 'bites my head off' if I say the wrong thing." 160 Mrs Freudenstein added that her husband was, since the accident, drinking more heavily (Ex A, annex J4[12]). She noticed a "big change" in him, adding these words: (Ex A, annex J4[13]) "13. ... Our relationship has suffered greatly and I (attribute) the deterioration of our relationship to the pain he continually endures in his left shoulder." (parenthesis added) 161 The plaintiff was given work on what was described as the light truck. He was engaged in coating floors with polyurethane once they had been sanded. He did so using a 12 inch roller (T 48/9). He said he could do the work (T 49). The light truck also picked up rubbish, which was then taken to the tip (T 70). He said that he could not use the heavy sander. His evidence was as follows: (T 48) "Q. What was it about sanding floors that gives you to say you couldn't do it any more? A. The machine, once you engage the sand paper on the floors it pulls and you've got to be able to stop the machine, physically stop it. I couldn't and you can't - it's a four horse power motor with a great big sanding belt on it trying to get away from you and you've got to try and hold it, sand the floor, physically hold it.

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The orthopaedic evidence. 196 The orthopaedic evidence was dealt with by way of reports. The solicitors for the plaintiff qualified Dr Graham Marney and the defendants Dr Bodel. Each was an orthopaedic surgeon. Each saw the plaintiff in the first few years after the accident and saw him for a second time in 2009. Both took broadly the same view. 197 Dr Bodel first saw Mr Freudenstein in October 2002, that is, 18 months after the accident. The plaintiff gave a history of returning to work on light duties. He complained of pain and stiffness in his left shoulder and back (Ex 1, report 23.10.02). On examination, Dr Bodel recorded the following findings in respect to the left shoulder: (Ex 1, report p 2) "He has full shoulder abduction and rotation on the right hand side and there is mild generalised wasting in the left shoulder . Abduction on the left is to 90 degrees and forward flexion to 100 degrees and there is a slight restriction of external and internal rotation. There is no definite instability in the left shoulder but there is weakness on resisted shoulder movement and there is some subacromial impingement ." (emphasis added) 198 Dr Bodel recorded the following findings in respect of the plaintiff's back: (Ex 1, report p 2) "The patient has a good range of lateral bending and rotation of the thoracic spine but there is tenderness at the lumbosacral junction. He reaches forward in flexion with his hands to the mid tibia. He has increasing backache at this point and also pain on extension. Straight leg raising is 80 degrees on both sides and there is no evidence of nerve root tension or neurological abnormality in the lower limbs." 199 Dr Bodel's opinion was expressed in these words: (Ex 1, report p 2) "This patient had a fall from a height on 16.4.2001 in the circumstances described above. He has suffered a soft tissue injury to the left shoulder, a soft tissue injury to the neck and lower back although he may have rotator cuff pathology in the left shoulder and possible disc injury in the lumbosacral region. The patient has been able to return to work as a floor sander. He has had to modify his duties because of persisting pain in the back and in the left shoulder. The patient's complaints are quite genuine and he does have ongoing pathology in both areas but the exact nature of the pathology is uncertain without seeing his investigations." (emphasis added) 200 Dr Bodel encouraged the plaintiff to exercise. He saw the possible need for further treatment of the shoulder, either by hydrocortisone injection or surgery. He thought there had been a 12% overall permanent impairment of function of the left upper limb as the result of the fall, and a 10% permanent impairment of the back, also probably due to the fall. 201 Dr Mahony first saw Mr Freudenstein on 29 April 2003, that is, two years after the accident (Ex A, annex A4). He complained of pain and stiffness in the left shoulder and low back, which did not radiate (Ex A, annex A4, p 2). Left shoulder movements were possible to about 90 degrees of abduction with little rotation. There was some restriction of movement in the back. Dr Mahony expressed the following opinion: (Ex A, annex A4, p 3) "Mr Freudenstein gave a history of sustaining a laceration to the lower lip. He has symptoms referable to a cervical strain, a capsulitis of his left shoulder and a rotator cuff lesion could not be excluded as well as a low lumbar back strain. It is consistent that the incident he described on the 14th April 2001 has produced such lesions." 202 Dr Mahony recommended further investigation by CT or MRI with physiotherapy in the meantime. He also made the following comment in relation to Mr Freudenstein's work: (Ex A, annex A4, p 4) "In order to minimise an exacerbation of his symptoms, I would suggest he restrict his future activities to activities not involving significant use of the left arm above the shoulder level or significant bending or lifting." 203 According to Dr Mahony, there was a 15% permanent impairment of the efficient use of the left upper limb (Ex A, annex A5). 204 Dr Mahony saw Mr Freudenstein again on 20 November 2008. He continued to complain of restrictions of movement in his left shoulder and low back pain. The low back pain radiated to his buttocks on prolonged sitting. On examination, Dr Mahony noted some restriction of movement of both the left shoulder and back. Before he reported, he had access to an MRI which was undertaken on 15 January 2009 (arranged by Dr Milder, neurologist). Dr Mahony summarised what he believed emerged from that investigation in these words: (Ex A, report 20.1.09, annex A3, p 2) "The MRI of the lumbosacral spine suggested a disc lesion at the L4/5 and lumbosacral levels with possible right L5 nerve root irritation." 205 Dr Mahony then expressed the following opinion: (Ex A, report 20.1.09, annex A3, p 2) "Mr Freudenstein gave a history of sustaining a laceration to his lower lip. He has symptoms referable to a cervical strain, a capsulitis of his left shoulder and a rotator cuff lesion could not be excluded as well as discogenic lesions at the L4/5 and lumbosacral levels with possible right L5 nerve root irritation." 206 He believed it was consistent that the incident of 14 April 2001 had produced such lesions. He recommended physiotherapy and that Mr Freudenstein's work be modified. He said this: (Ex A, report 20.1.09, annex A3, p 2) "In order to minimise an exacerbation of his symptoms, I would suggest he restrict his future activities to activities not involving significant use of the left arm above the shoulder level or significant bending or lifting." 207 Dr Mahony once more estimated the degree of permanent loss. There was, in his view, a 15% permanent loss of the efficient use of the left upper limb above the elbow and a 15% permanent impairment of the back (Ex A, annex A1, report 22.1.09). 208 Dr Bodel saw Mr Freudenstein once more on 20 April 2009. Mr Freudenstein told him that nothing had changed since the last consultation (Ex 1, report p 2). He made an examination. He had been provided with a summary of the MRI findings of January 2009. He had also been furnished with reports, including that of Dr Mahony. He said this: (Ex 1, report p 4) "A subsequent letter on 20 January 2009 confirms that at that time he still had a restricted range of left shoulder movement and I agree with that." 209 Dr Bodel then addressed specific questions which had been posed by the solicitors for the defendants. The first question and answer was as follows: (Ex 1, report p 4) " 1. What are the plaintiff's present complaints and disabilities? This gentleman's main ongoing complaints are the pain and stiffness in the lower part of the back aggravated by prolonged sitting bending or twisting and lifting. He also has pain and stiffness in the region of the left shoulder and pushing, pulling or lifting or use of the left arm overhead aggravates the pain." 210 He thought that such complaints were reasonable and that there was a direct causal link to the accident. He believed that the plaintiff was coping quite well with his garbage collection work (Ex 1, report p 5) which "he should be able to continue ... indefinitely" (Ex 1, report p 5). Dr Bodel concluded by saying that ongoing treatment should include analgesic medication.

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The neurological reports. 211 The plaintiff qualified Dr Dan Milder, neurologist, to express an opinion concerning the plaintiff's complaints. Dr Milder saw Mr Freudenstein on three occasions, providing the following reports: report 19.8.03 (Ex A, annex D4) report 19.8.08 (Ex A, annex D3) report 12.3.09 (Ex A, annex D1) 212 The defendants retained Dr Ronald Fine, neurologist, who saw the plaintiff on 9 December 2002 (Ex 1, report 10.12.02). They then retained Professor Paul Spira to give an opinion concerning Mr Freudenstein's present complaints. Professor Spira provided a report on 22.4.09 (Ex 1). Dr Milder and Professor Spira were called to give evidence. Each had impressive qualifications. Dr Milder held fellowships with various American universities, including Harvard. He is currently a Conjoint Senior Lecturer at the University of New South Wales. Dr Spira is Conjoint Associate Professor at the University of New South Wales. 213 Let me first summarise the views expressed in the various reports. I will then deal with the oral evidence of Dr Milder and Professor Spira. 214 Dr Fine saw Mr Freudenstein on 9 December 2002, that is, 20 months after the accident. Mr Freudenstein complained that he was unable to elevate his left arm beyond 90 degrees and had periodic pain in his lumbar spine (Ex 1, p 1). Dr Fine examined his shoulders and found no wasting. His reflexes were normal (Ex 1, report p 2). There was restriction of movement. He could not elevate his left arm above a right angle, but could perform various other movements. A neurological examination of the lumbar spine did not reveal any abnormality. Dr Fine expressed the following view: (Ex 1, report p 2) "I am unable to explain why this man cannot elevate his left shoulder. There is no evidence of a brachial plexus lesion and there does not appear to be any significant orthopaedic lesion from the straight X-rays which he brought along and from the clinical examination. However, to be absolutely certain there is no neurological involvement I suggest he have nerve conduction studies." 215 However, nerve conduction studies were never undertaken. 216 Mr Freudenstein then saw Dr Milder on 19.8.03. His complaints included pain in the left shoulder and lower back. Panadein Forte gave him some relief. Dr Milder noted the following: (Ex A, annex D4, p 1) "He suffers low back pain, present daily, lasting up to the entire day. It does not radiate." 217 On examination movements were limited, but the neurological examination was normal. Dr Milder thought that the shoulder pain should be examined by an orthopaedic surgeon. His opinion in respect of the lumbar spine was as follows: (Ex A, annex D4, p 2) "I feel Mr Freudenstein has sustained lumbar soft tissue and ligamentous injuries. The possibilities of an annular tear and/or protrusion of a lumbar invertebral disc(s) are suggested ." (emphasis added) 218 Dr Milder added that the outlook was uncertain. Pain may be reduced by appropriate analgesics and anti-inflammatory medication (Ex A, annex D4, p 2). He recommended an MRI which, regrettably, was not carried out for a further five years. 219 Mr Freudenstein was examined again by Dr Milder on 19 August 2008, commenting only on the low back pain which was said to be present intermittently throughout the day. He provided the following opinion: (Ex A, annex D3, p 1) "I feel Mr Freudenstein continues to suffer lumbar soft tissue and ligamentous injuries. The possibilities of an annular tear and/or protrusion of a lumbar intervertebral disc(s) are suggested." 220 Again he thought the prognosis was uncertain. He recommended medication, including analgesia, as well as physiotherapy. He added: (Ex A, annex D3, p 1) "Nevertheless a longstanding tendency to low back pain may remain. A predisposition towards the accelerated development of lumbar spondylosis has resulted." 221 Dr Milder again recommended that an MRI scan be undertaken to determine whether there was an annular tear or protrusion. An MRI was undertaken on 15 January 2009. Dr Milder's subsequent report (12.3.09) included the following summary of the findings: (Ex A, annex D1, p 1) "Scans of the lumbar spine evidenced a protrusion of the L4-5 intervertebral disc, indenting the thecal sac. The protrusion together with facet joint arthropathy, ligamentum flavum hypertrophy and congenitally short pedicles at the same level resulting in canal stenosis at that level. A right paracentral protrusion of the L5-S1 intervertebral disc extended to the right first sacral nerve root. Slight narrowings of the neural exit foraminae at the L4-5 and L5-S1 levels, traversed respectively by the right fourth lumbar and the right fifth lumbar nerve roots were present." 222 Arrangements were made for Dr Milder to see Mr Freudenstein once more on 12 March 2009. He reported the same day, expressing the following opinion: (Ex A, annex D1, p 2) "Mr Freudenstein continues to suffer lumbar soft tissue and ligamentous injuries. He continues to suffer protrusions of the L4-5 and L5-S1 intervertebral discs. 'Irritability' of the right and left fourth lumbar and/or the right and left fifth lumbar nerve roots is suggested." 223 Dr Milder described the prognosis in these terms: (Ex A, annex D1, p 2) "The outlook is uncertain. Low back pain may diminish with physiotherapy and analgesic and anti-inflammatory medications. Nevertheless, a longstanding tendency to low back pain may remain. A predisposition towards the accelerated development of lumbar spondylosis has resulted. " (emphasis added) 224 Dr Milder did not believe that Mr Freudenstein should "take part in duties requiring prolonged standing or sitting or stooping or the lifting of heavy objects" (Ex A, annex D1, p 2). 225 Professor Spira's report of 22 April 2009 recorded the plaintiff's complaints of low back pain with some radiation to the posterior proximal thigh as well as left shoulder pain, brought on by abduction or extension beyond 90 degrees (Ex 1, report 22.4.09, p 1/2). Professor Spira then recorded his findings on physical examination. They included the following comment, which was consistent with my own impression of Mr Freudenstein: (Ex 1, report 22.4.09, p 2) "He provided his history clearly and with no element of dramatisation." 226 In respect of the left shoulder, Professor Spira noted the following: (Ex 1, report 22.4.09, p 2) "Upper and lower limb muscle tone, bulk and power were normal and symmetrical and, specifically, there was no evidence of atrophy in either the left deltoid or in lower limb musculature. All reflexes were readily elicitable and were symmetrical. The plantar responses were flexor. I examined left shoulder mobility and noted restriction by pain of passive abduction and extension beyond 90 degrees. There was crepitus within the left shoulder joint." 227 Professor Spira had been previously furnished with a number of reports, including Dr Milder's report which incorporated the summary of the MRI findings. He did not have access to the radiographs, which he said was a disadvantage (T 201). He expressed the view that Mr Freudenstein was "carrying left shoulder and low back discomforts as the only sequelae to the fall" (Ex 1, report 22.4.09, p 3). So far as the left shoulder was concerned, he said this: (Ex 1, report 22.4.09, p 3) " The left shoulder trauma appears to have resulted in some joint dysfunction as there is palpable crepitus present . I did not see radiographs of the shoulder and in any case believe that this aspect should be assessed by either a rheumatologist or orthopaedic surgeon as recommended by Dr Milder." (emphasis added) 228 So far as the low back pain was concerned, Professor Spira commented as follows: (Ex 1, report 22.4.09, p 3) "The low back pain is not accompanied by any radicular signs and, as such, the back trauma is presumably of musculo-ligamentous form. Again I did not see the MR films to assess them effectively but in the absence of radicular signs the MR changes are presumably asymptomatic and Mr Freudenstein's symptomatology is not consistent with spinal canal stenosis which was apparently demonstrated in the MR films. The back pain is far more likely to be related to musculo-ligamentous strains but this aspect requires further investigation, possibly with bone scanning. There may be a case for a trial of physiotherapy to see if Mr Freudenstein can be extended significant relief." (emphasis added) 229 Both complaints, in his view, required further investigation and management (Ex 1, report 22.4.09, p 3). So far as Mr Freudenstein's work was concerned, Professor Spira made the following comment: (Ex 1, report 22.4.09, p 3) "Despite his back and shoulder pains Mr Freudenstein continues to participate in physically demanding work as a garbage collector. He may well benefit from seeking work involving less effort. " (emphasis added)

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The oral evidence of the neurologists. 230 Both Dr Milder and Professor Spira were called to give evidence. Each was shown the investigation of Mr Freudenstein's activities in January and March 2004 (Exhibits 2 and 3). Each was cross examined on the significance of the MRI findings. In respect of those findings, there were two issues. First, given the accident occurred in March 2001, and the MRI was undertaken in January 2009, could the changes appearing in the MRI be related to the trauma? Secondly, if they could, what was their significance in the context of Mr Freudenstein's complaints of disability and reduced working capacity? 231 In answering the first question, it was important to have regard to the context. Before the fall, Mr Freudenstein had continuously performed heavy work without difficulty, whether as a mechanic or as a floor sander. He had done so over many years. The fall was, of course, dramatic, involving a four metre drop. The plaintiff thereafter complained of back pain and restriction which had continued to the present time. He returned to work, although on lighter duties. 232 Dr Milder, in that context, was prepared to relate, as a matter of probability, the changes to the trauma. In cross examination, various other possibilities were explored, including that the changes were the product of repeated micro-trauma (T 168/9). The cross examination included the following: (T 169/70) "Q. So doctor what we have is an absence of any radicular signs in 2003, we have a MRI which is 8 or so years after the accident which demonstrates a certain pathology as we've been through. There is no way that one can be sure that the protrusion was caused by the trauma complained of, is there? A. No-one can't be certain. All that I would say is that protrusion of a disc that compresses a nerve does not necessarily result in radicular signs. If the patient states at a particular point pain developed and the pain was not present prior and the radiologic studies attest a protrusion, then the clinician usually concludes that one was consequent upon the other, in other words that the protrusion was consequent upon the trauma. That is the usual conclusion, the clinical conclusion.

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Q. You say you don't have any evidence, you don't have any radiological evidence but you have at least the history? A. The history does not fit, that is the very point I am making, that the history is not that of nerve root compression. At no stage has this man provided me a history of anything vaguely suggestive of radiculitis. So if he has got a disc protrusion it is not causing him any problems." 235 The two experts disagreed as to the significance of the changes, assuming that they were related to the trauma. There were no radicular signs (that is, symptoms in the legs). Dr Milder, in the passages quoted, repeatedly said that the absence of radicular signs did not necessarily negate the significance of the protrusion (T 170). Professor Spira, whilst agreeing, said that you rarely saw compression without signs (T 205). Professor Spira emphasised that the history provided by Mr Freudenstein was of diffuse pain. The protrusion, if caused by the fall, was therefore asymptomatic. Hence, according to Professor Spira, the cause of the back pain lay elsewhere (T 206). Professor Spira thought the back pain may be caused by ligamentous injury (T 193), or tension myalgia (T 202). Tension myalgia can be treated, especially in the early stages (T 202). Professor Spira acknowledged that Mr Freudenstein's response to treatment after so many years was not likely to be as good (T 207). 236 Let me move from that to the DVD (Exhibits 2 and 3) and its significance in assessing Mr Freudenstein's capacity for work. In examination in chief, Dr Milder said this: (T 167) "Q. ... there has been shown to the Court some video evidence of the plaintiff in late 2003 and early 2004 doing some physical work which involves, amongst other things, his man handling rolls of underlay or carpet on to a truck with the use of arms above shoulder height. The plaintiff's evidence is yes that was done. The plaintiff's further evidence is that he was self medicating with Paracetamols further that after doing that sort of work and he'd as it were suffer with pain from the use. Do you have anything to say in relation to that evidence? Is that reasonable that that should be so? A. There are patients with intervertebral disc protrusions who do all manner of things because they have to. They can do it. It's not that they can't do it but they experience discomfort and so I don't think it's because you have an intervertebral disc protrusion means that you can't do such a thing but you do it with a degree of discomfort and you put stresses on the spine. You feel the effects immediately and in the longer term you almost certainly have a greater rate of progression ." (emphasis added) 237 In cross examination, Dr Milder was shown the sequence on Day 1 (T 172/3), where the plaintiff lifted the compressor from the ground to the ute and then loaded the truck with building material. Dr Milder said this: (T 174) "HIS HONOUR

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Q. Are you able to say by what percentage? A. Of the order of 60 to 70 percent." 244 That answer was attacked by counsel for the defendants as further evidence that Dr Milder was an advocate for the plaintiff. The defendants, in submissions, said this: (DS [48]) "48. Dr Milder was loathe to give any concessions whatsoever, when such concessions were clearly called for. For example, even if it was discernable that he had some restrictions of movement in the DVD evidence of his activities in January and March 2004, Dr Milder was still prepared to assess him as being 60-70% disabled despite the clear evidence that he was (a) working hard; (b) not claiming any economic loss at the present time in his current occupation which appears to be paying him a significant salary. (c) had only had 3 weeks off in 9 years despite clearly performing some heavy work. It must be borne in mind the plaintiff himself believes that the occupation he currently follows is well within his capacity, and he believes that he is capable of carrying out such an occupation through until retirement age. All of these factors appear to have been ignored by Dr Milder." 245 However, that submission misunderstands Dr Milder's view. He was talking about disability for heavy work which the plaintiff had once routinely performed. Such work, for the reasons he gave was, in his view, contra-indicated, although he was still capable of carrying out certain tasks, with pain. 246 Professor Spira, having seen the DVD, thought that Mr Freudenstein's capacity for work was unrestricted. He regarded the suggestion of a 60% to 70% incapacity as "ludicrous" (T 210). 247 However, an explanation emerged for the difference between the views of Dr Milder and Professor Spira. There was the following exchange between counsel for the defendants and Dr Milder: (T 171) "A. He may be able to work. My own sense of it would be that he might be able to work to the age of 65 with light duties, it's possible, but that he would be able to take part in heavy duties, I think that's most unlikely.

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The psychological evidence. 250 The original claim included an allegation of brain damage, which is no longer pressed. The injuries, nonetheless, are said to have had psychological consequences. It is instructive to examine, more or less chronologically, the documentary record of medical examinations undertaken by the plaintiff, ignoring the issue of brain damage. 251 It will be remembered that the plaintiff's wife, Michelle, made a statement to investigators about six months after the accident (supra [159]-[160]). She said, at that time, that she had noticed "big changes" in her husband. He was in pain. He was drinking more. Their relationship had deteriorated. He had become difficult to live with (Ex A, annex J4 [11]-[13]). 252 Almost a year after the accident, the plaintiff was referred to Dr Alam, a general practitioner. Dr Alam's report included the following: (Ex A, annex C1, report 20.3.02, p 2) "3. He is irritable, cranky and moody. He would argue with the wife. For example over a spaghetti dish which is 'quite unlike him'. Normally he is even tempered. Even with his young daughter Kirsten, he has been yelling at her. In fact he has separated from the wife, whom he has known for 24 years and they have been married for 13 years." 253 More than two years after the accident, the plaintiff saw Dr Phillip Brown, psychiatrist, qualified by the defendants. The history he gave Dr Brown included the following: (Ex 1, report 16.10.03, p 3) "He said that he was angry and irritable at home for about six months after the fall . 'This was when his pain was intense. I was frustrated. I could not lift my shoulder up. It was hard walking up the stairs at the unit. I was putting s..t on them at home. Little arguments turned to big ones!' He said that he split up with his wife and left their home unit and moved to his boss' place. 'She had had enough of my attitude. She went to stay with her parents!' There was never any physical violence. They got together again after his mother's death, which was some six months after separating. He said that his attitude changed after his wife left as he missed her. He said that he no longer had this problem ." (emphasis added) 254 The report continued: " He said that (he) does not think that he had any psychiatric or psychological problems. He said that he does not let his pain get to him and frustrate him anymore. He said that his wife and boss did not consider that he has suffered any psychological or mental impairment." (emphasis added) 255 Dr Brown canvassed various possible psychiatric conditions, including an adjustment disorder, as well as brain damage. He said this: (Ex 1, report 16.10.03, p 8) " I found no reason to suspect that Mr Freudenstein was exaggerating his symptoms. In fact he gave direct and simple answers to questions relating to his symptoms and so I needed to be sure that he was not minimising any symptoms and thus I spent time trying to elicit others. His case is unusual in that he is not complaining of any symptoms which he is attributing to a head injury. ..." (emphasis added) 256 Dr Brown also noted that Mr Freudenstein had not sought psychological treatment. In his view he did not require such treatment (Ex 1, report 16.10.03, p 17). 257 Meanwhile, the plaintiff's solicitor had arranged for Mr Freudenstein to see Professor K F Kennett, psychologist. There are a number of reports, mainly concerned with the issue of brain damage, and to that extent, irrelevant. However, Professor Kennett did take a reasonably full history, including from members of the plaintiff's family, and they are instructive. His clinical notes of 24.4.04 (three years after the accident) included the following from the plaintiff's wife: (Ex A, annex E1) "Great change in his behaviour since he fell from roof area at the hotel. Relationships strained. Doug has extreme mood swings and is unpredictable. Will be having a normal conversation - if he does not agree he becomes verbally aggressive and physically destructive. He has never hit me but will punch and damage walls and doors. Such behaviour is constant about 2-3 times a week. Alcohol impacts on his moods. Social drinking with me. Easily provoked. For little reasons he will show explosive response patterns. Recently separated but are back together again." 258 Professor Kennett's notes also included the following history provided by the plaintiff: (Ex A, annex E1) "He seems to forget his injuries and will initially say 'I'm all right' but when asked about specifics like his back, neck, shoulder he admits they are not very good." 259 Professor Kennett also interviewed the plaintiff's daughter, Kirsten. His notes were as follows: (Ex A, annex E1) "Confused over dad's behaviour and his rapid mood changes. Impossible to (predict) how he will respond to situations. Concerned about his attitude to mum - always yelling at mum. Dad hard to get along with. Major change in his behaviour since the accident. Always willing to help and seemed to understand. Alcohol drinking has increased - very heavy drinking over Christmas. When told about how he behaves he says he can't remember. He continues to go to work in pain. Determined to become independent. Dad becomes very abusive and breaking things. Loves dad but can't cope with his behaviours." (emphasis added) 260 Professor Kennett was critical of Dr Brown for having relied exclusively upon the plaintiff without interviewing family members. Dr Brown, on 13 May 2004, responded to that criticism. He said that he found Mr Freudenstein open in his replies and had no reason to doubt his account. He added: (Ex 1, report 13.5.04, p 3) "The commonest cause of irritability is not organic brain damage but a transient psychological reaction to whatever are the frustrations of the time. In his history he clearly attributed these to the limitations his physical condition placed on his work. This type of reactive irritability is more expressed with those in the family or close to them and generally controlled elsewhere. It is the commonest psychological complaint that I ascertain in persons I assess for ongoing physical pain and limitations. I had no reason to see his frustration other than in this light and this was in fact how he described it. Also as he indicated that this had improved it was unlikely to be due to permanent brain damage." (emphasis added) 261 Professor Kennett reviewed Mr Freudenstein on 25 October 2008, that is seven and a half years after the accident. The history he took included the following: (Ex A, annex E2, report p 11) "8.8 In 2008 Douglas Freudenstein presented as a more stable individual and appeared to have less extreme mood swings and he reported a happier home environment, with his daughter Kirsten, until recently, living in the apartment adjacent to her parents' apartment. 8.9 Kirsten has recently moved back to live with her parents who have relocated to a larger apartment in the same street but at the opposite end of the street. 8.10 Douglas added that because of his employment he infrequently or rarely goes to the hotel in the evenings; he prefers to go to the hotel in the mornings and reads the paper and may have one or two drinks prior to lunch. 8.11 Douglas seemed more coherent and better adjusted to his circumstances." (emphasis added) 262 He was still, on occasions, verbally aggressive and reluctant to "talk about his on-going injuries" (Ex A, annex E2, report p 12). The defendants arranged for Mr Freudenstein to see Dr James Maguire, psychiatrist, on 11 August 2009. Dr Maguire's report included the following: (Ex 1, report 11.8.09, p 4) "When I asked Mr Freudenstein how his injury had affected him mentally or emotionally he said - 'I knew I couldn't do what I wanted [his job] ... I don't think I changed ... I drank more ... they said I became more angry ... I was frustrated because I couldn't do what I wanted to do ... it's good now ... I've got a job I like and the pay is good and I have got great hours.' " (emphasis added) 263 Dr Maguire reported no ongoing psychological or emotional problems (Ex 1, report 11.8.09, p 12). 264 Let me turn to the evidence given during the trial.

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Evaluation: disabilities. 278 A number of doctors commented upon the absence of exaggeration in the plaintiff's description of his complaints. Dr Bodel, orthopaedic surgeon (qualified by the defendants), saw Mr Freudenstein in October 2002, that is 18 months after the accident (supra [197]). Having recorded his complaints, he said: "The patient's complaints are quite genuine." (supra [199]). Dr Brown, psychiatrist, saw Mr Freudenstein a year later, again on behalf of the defendants, and said that he "found no reason to suspect Mr Freudenstein was exaggerating his symptoms" (supra [255]). Dr Maguire, psychologist, qualified by the defendants, said in August 2005 that Mr Freudenstein "provided a straight forward account" (Ex 1, report 11.8.09, p 6). Professor Spira, neurologist, also qualified by the defendants, saw the plaintiff in April 2009. He made the following comment: (supra [225]) "He provided his history clearly and with no element of dramatisation." 279 That observation coincided with my own impression. Indeed, it was apparent that, on occasions, Mr Freudenstein understated his complaints. Professor Kennett included the following in the history, which is instructive: (supra [258]) "He seems to forget his injuries and will initially say 'I'm all right' but when asked about specifics like his back, neck, shoulder he admits they are not very good." 280 I accept the plaintiff's account of the pain and limitations he has experienced. He was cross examined in advance of the video as to activities that were within his capacity. Nothing in the video that followed contradicted his description of what he could or could not do. Further, it will be remembered that he suffered a head injury. Indeed, I believe it likely that he lost consciousness for a short time. Yet, to his credit, he has consistently said that he had noticed no intellectual impairment (Ex A; Ex 1). Indeed, he stated to Dr Brown, psychiatrist, in October 2003, that he did not believe he had any psychiatric or psychological problems (supra [254]). Aside from anger and irritability, which had manifested in the context of pain, he asserted no other psychological ill effects. His evidence included the following: (T 60) "Q. Are there any other feelings mentally that you have experienced or you perceive you may experience changes in; emotional matters? A. No. Q. What about your memory since this accident. Has there been any change? A. I don't think so. I've sort of got a pretty good memory." 281 Mr Freudenstein had an impressive work history before the accident. But, more than that, given his disabilities, his work record after the accident was remarkable. In nine years, as the defendants pointed out, he has had three weeks off work. That says more about him, I believe, than the level of his disabilities. It is clear, on the evidence, that he has worked, notwithstanding pain. I accept his evidence that, after doing the sort of work depicted in the investigation DVD (Exhibits 2 and 3), he would have experienced pain. He performed that work because that was what he was employed to do (supra [182]). John Cross, his employer, described him as "a man's man", who would do the job and hurt later (supra [183]). He added: (T 97) "A ... He was sent with his offsider to pick up carpet and the offsider was there to pick up carpet. If there was an underlay or something he would pick up that and throw that on.

[182]

But he is not that type of bloke, he is head down bum up. He is not a bludger. ..." (emphasis added) 282 What, then, were the plaintiff's injuries and what is the level of disability? One of the difficulties each doctor faced was that no real investigation was undertaken in the early stages. Mr Freudenstein simply carried on, performing light duties, relying upon non prescription analgesics and alcohol to deal with the pain. Dr Fine, neurologist, recommended in December 2002, nerve conduction studies in respect to the shoulder (supra [214]). Dr Mahony, orthopaedic surgeon, recommended in April 2003 a CT or MRI of both the shoulder and the back, quite apart from physiotherapy. Dr Milder, neurologist, in August 2003, repeated the recommendation for an MRI. Yet none of these recommendations was taken up. 283 An MRI was eventually undertaken on 15 January 2009 (almost eight years after the accident) and revealed a disc protrusion at L4/L5, as well as a right paracentral protrusion at L5/S1, quite apart from other defects (supra [221]). Dr Milder was prepared to say, as a matter of probability, that these changes were related to the fall, rather than repeated microtrauma arising from heavy work (supra [232]). It should be noted that, in his first consultation in August 2003, Dr Milder stated the following, having set out the history and clinical findings: (supra [217]) " ... The possibilities of an annular tear and/or protrusion of a lumbar invertebral disc(s) are suggested." 284 That was a comment made almost five years before the MRI in January 2009, which revealed disc protrusions. Professor Spira, however, did not feel that he had evidence that the changes were due to the fall (supra [234]). He, nonetheless, acknowledged that particular disc protrusion usually occurs at times of strain or impact (supra [233]). Dr Mahony, orthopaedic surgeon, saw the MRI in January 2009. He noted the "disco-genic lesions at the L4/5 and lumbosacral levels with possible right L5 nerve root irritation" (supra [205]). He stated his view that it was probable that the fall had produced such lesions (supra [206]). 285 I accept the opinions of Dr Milder and Dr Mahony and prefer their evidence on this aspect to Professor Spira. 286 However, the changes revealed by the MRI do not furnish a complete diagnosis for Mr Freudenstein's back difficulties. It was common ground that there were no radicular symptoms, that is, pain in the legs. Rather, there was diffuse pain in the back, spreading to the buttocks upon prolonged sitting, with stiffness and difficulty in bending and lifting. Actions such as getting out of the truck cabin (supra [191]) or getting off the lounge (supra [276]) were difficult, or often difficult. Dr Milder, neurologist, and Doctors Bodel and Mahony (orthopaedic surgeons) believed there had also been soft tissue and ligamentous injuries. Professor Spira suggested musculo-ligamentous strain was the most likely cause of pain, recommending further investigation, possibly with bone scanning, which has not been undertaken (supra [228]). Alternatively, he suggested that the pain could be due to tension myalgia (supra [235]). 287 Whatever the cause, I am satisfied that Mr Freudenstein suffers from disabling back pain, which is frequently present and now chronic. It has been going on for so long that it is less amenable to treatment (cf supra [235]). I accept the evidence of the plaintiff's wife and daughter, who both appeared to be straightforward witnesses, and their description of the considerable difficulties which the plaintiff has experienced since the accident. The pain does fluctuate and is more disabling at some times than at others, but I accept that it is "probably getting worse" as the plaintiff suggested (supra [267]). Mrs Freudenstein said much the same thing. Indeed, it is convenient to repeat part of her evidence: (T 155) "HIS HONOUR

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Q. You can give your recent observations of him physically, what have you noticed in terms of his movements, his capacity to do things? A. It seems to be getting harder. Even though he does get up and he will go to work, it just seems to be getting harder and harder and harder for him." 288 Let me move from the back pain to the left shoulder. Mr Freudenstein was examined by Dr Bodel, for the defendant, in October 2002. Dr Bodel found generalised wasting of the left shoulder, restriction of movement and weakness as well as "some subacromial impingement" (supra [197]). He thought he had a soft tissue injury, although he acknowledged he may have a rotator cuff pathology (supra [199]). Dr Bodel thought the plaintiff's complaints were quite genuine (supra [199]). He found a 12% permanent impairment (supra [200]). 289 Dr Fine, on 9 December 2002, could find no explanation for the restriction of movement of the left shoulder on examination, and recommended nerve conduction studies, which were never undertaken. 290 Dr Mahony, in April 2003, said Mr Freudenstein had "a capsulitis of his left shoulder, and a rotator cuff lesion could not be excluded" (supra [201]). He found a 15% impairment of the left upper limb. Having seen Mr Freudenstein again in late 2008, Dr Mahony reiterated that view (supra [205], [207]). Dr Bodel's opinion on the left shoulder in April 2009 included these words: (supra [209]) "He also has pain and stiffness in the region of the left shoulder and pushing, pulling or lifting or use of the left arm overhead aggravates the pain." 291 Professor Spira reported on the left shoulder on 22 April 2009 in these terms: (supra [227]) "The left shoulder trauma appears to have resulted in some joint dysfunction as there is palpable crepitus present. I did not see radiographs of the shoulder and in any case believe that this aspect should be assessed by either a rheumatologist or orthopaedic surgeon as recommended by Dr Milder." 292 When the plaintiff was asked about the left shoulder, he said this: (T 71) "Q. You also described difficulties of lifting your shoulder above your head, your hand above your head? A. Sometimes.

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Q. You are not saying it stops you from doing anything? A. Some days, I can't. Other days, I can get it above my head." 293 The film taken by the investigators on 28 January 2004 certainly depicted the plaintiff with his left arm periodically raised above shoulder level in a relatively short sequence. The plaintiff later said that that movement would be accompanied by pain (supra [182]). I accept that there has been some improvement to the left shoulder. The earlier wasting noted by Dr Bodel appears to have gone. Nonetheless, crepitus and the other matters noted by Professor Spira remain and I accept that it is still disabling. 294 Moving to the psychological impact upon the plaintiff of his pain and disablement, Mr Freudenstein was, I believe, rather less reliable on this aspect than the observations of his wife and daughter. For instance, he told Dr Brown in October 2007 (more than two years after the accident) that he was angry and irritable at home for about six months after the fall, and that he no longer had "this problem" (supra [253]). However, it is plain from accounts he gave periodically to other doctors, and the observations of his family, that the symptoms persisted and, indeed, are still present. No doubt they were more severe in the first six months. But they are an accompaniment of pain and frustration and it is evident that both have been present, to a greater or lesser extent, throughout. The psychological impact upon the plaintiff was described as "reactive irritability" by Dr Brown, who said this: (supra [260]) "It is the commonest psychological complaint that I ascertain in persons I assess for ongoing physical pain and limitations." 295 The evidence given by Mrs Freudenstein and her daughter, Kirsten, about the crankiness and irritability of the plaintiff and the way in which it has intruded upon their lives and their relationships, demonstrates that the plaintiff does still have that problem. 296 What amount should be awarded for the combined effect of these disabilities, in the context of "a most extreme case"? Mr Freudenstein is not an intellectual. He does not live in his head. He is a very physical man who enjoyed robust health and heavy work before the accident. He is now clearly disabled and suffers a deal of pain, although it fluctuates. It is to his credit that he has not given himself to that pain, but continued to work. The effort has plainly taken a toll on him, his family and his relationships with his family. His disabilities are pervasive, affecting many aspects of his life and leisure. 297 The submission made by the plaintiff (31% to 33% disability) I believe, was conservative. To my mind, the appropriate level of disability is 33% of a most extreme case ($473,500), being $156,255.

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Evaluation: loss of earning capacity. 298 There is a marked contrast between the plaintiff's capacity for work before the accident and his capacity now. Before the accident he was a qualified mechanic who performed that work from time to time. It was an important string to his bow. It required heavy lifting, prolonged bending and work in awkward and confined spaces (supra [193]). He also worked in the related industries of tyre fitting and car wrecking. At the time of the accident, he was working as a floor sander which was likewise heavy work. He performed the work of a mechanic and a floor sander without difficulty. He now says that he is incapable of doing such work (supra [193]). On his own assessment, he is confined to the sort of work he is now performing with United Resources Management as a garbage collector (that is, work not involving lifting or excessive bending). 299 The medical evidence, with one exception, supports Mr Freudenstein's own assessment of his working capacity. Doctors Mahony and Bodel, orthopaedic surgeons, and Dr Milder, neurologist, said that Mr Freudenstein should avoid heavy work, involving heavy lifting and bending. Dr Milder, having been provided with a description of his pre-injury work, expressed the view that he was 60% to 70% incapacitated for such work (supra [243]). Whilst Professor Spira, neurologist, described that assessment as "ludicrous" (supra [246]), it is not entirely clear that he understood that Dr Milder was speaking of incapacity for heavy work, rather than work generally. Professor Spira himself, in his report, concluded by saying these words: (supra [229]) "Despite his back and shoulder pains Mr Freudenstein continues to participate in physically demanding work as a garbage collector. He may well benefit from seeking work involving less effort . " 300 Professor Spira was subsequently shown the DVD (Exhibits 2 and 3) depicting Mr Freudenstein working. He then expressed the view that Mr Freudenstein had "unrestricted capacity" (supra [242]). He later moderated that view by acknowledging that he was incapable of performing work with the heavy sanding machine (supra [248]). He explained what he meant by "capacity". Incapacity did not equate with pain (supra [248]). He was not denying that certain forms of work would cause Mr Freudenstein suffering (supra [248]). The plaintiff, nonetheless, could do that work, albeit with suffering. 301 I prefer the evidence of Dr Milder and the orthopaedic surgeons. I believe Professor Spira placed altogether too much weight upon the investigation film. The film contained fragments, usually short, some of them separated by hours. There was no evidence as to what happened in between. But one does know from Mr Freudenstein's evidence, which I accept, that such activity induced pain, which he simply put up with because he believed that he was obliged to do the job. As demonstrated by the evidence of his family members, where they described how he presented at the end of each working day, he has paid a heavy price for the work he has performed. It is not reasonable, in my view, to expect a stoicism beyond that which he has already exhibited (cf Dr Milder, supra [247]). Indeed, as I have already said, his work record since the accident is remarkable. After three weeks off, he has worked continuously. He makes no claim, to this point, of a continuing wage loss. I accept him as a person who has done his very best. 302 I further accept that he is now incapable of performing work as a mechanic, or the work he used to perform in related industries. He has lost that string to his bow. He also can no longer perform heavy sanding work. Indeed, I accept the medical opinions, that he should not perform heavy lifting or excessive bending. 303 Mr Freudenstein, again through his own efforts, secured work with United Resources Management as a garbage collector, which he is able to do. He earns $950 per week net, although it should be noted that he is a permanent casual, not an employee. To earn that money, he is required to work six days a week, including Sunday. He has no right to holidays or sick pay. No reference was made to superannuation. As stated, no claim is made in the nature of a wage difference between his pre-injury earnings and his present situation. 304 Nonetheless, plainly there has been a significant loss of earning capacity. What, then, is his future? Mr Freudenstein stated that he can perform his work as a garbage collector without difficulty, apart from some pain and stiffness occasionally getting in and out of the truck (supra [191]). His job, nonetheless, as Professor Spira remarked, is very physical. It involves a lot of walking and pulling bins across grass, most of which is flat (supra [190]). Mr Freudenstein said that he intended to continue that work until retirement (supra [193]). It is convenient to repeat his answers in cross examination: (T 87) (supra [194]) "Q. And you imagine you will keep going with this work until you retire? A. If I can, yes. Q. And there is nothing from your employer or otherwise to suggest that you wouldn't be able to? A. No." 305 Looking ahead, there are a number of imponderables. Mr Freudenstein clearly has a job that suits him and it is likely that he will continue as long as he can. However, things may obviously happen that may throw him back on the open labour market, where his reduced earning capacity is likely to present him with difficulty in finding a suitable job. His company may lose the garbage collection contract. It may introduce a different system, so that collectors are required (as they are in many suburbs) to lift or bend. Or he may fall out with his employer, and find himself out of a job. He may become ill for unrelated reasons, and by the time he recovers there may be no position for him. Effectively, he now only has one string to his bow, light work not involving excessive bending or lifting. He does have the advantage of a very positive attitude. 306 But, assuming all goes well and he remains with his present employer, is he likely to become more disabled as he grows older? He is now 47 years old. He has, on his own reckoning, about 20 years of wage earning life left. His back is likely to get worse. Dr Milder noted "a predisposition towards the accelerated development of lumbar spondylosis has resulted" from the fall (supra [223]). He has, according to the MRI, disc protrusions and other defects in his spine, where physical effort is likely to take its toll. Dr Milder said this: (supra [236]) A. There are patients with intervertebral disc protrusions who do all manner of things because they have to. They can do it. It's not that they can't do it but they experience discomfort and so I don't think it's because you have an intervertebral disc protrusion means that you can't do such a thing but you do it with a degree of discomfort and you put stresses on the spine. You feel the effects immediately and in the longer term you almost certainly have a greater rate of progression ." (emphasis added) 307 In the nine years since the accident, Mr Freudenstein has already noticed that his pain is getting worse (supra [267]). I repeat the observation of his wife, which suggests that it is most unlikely that he will be able to perform at his present level until retirement in 20 years: (supra [273]) "Q. You can give your recent observations of him physically, what have you noticed in terms of his movements, his capacity to do things? A. It seems to be getting harder. Even though he does get up and he will go to work, it just seems to be getting harder and harder and harder for him." 308 I therefore believe it is likely that his working life will be cut short. It is obviously difficult to say by how much, although I believe it is not unreasonable to infer that, conservatively, he is likely to retire at least two years ahead of the time he would otherwise have retired. 309 In summary, he has lost earning capacity in the sense of jobs that he is no longer able to perform, including that of a mechanic, and his wage earning life is likely to be shorter than it would have been, but for the accident. What, then, is an appropriate sum for loss of earning capacity, taking account of vicissitudes (15%) and the fact that his loss by early retirement is a loss deferred (which must be discounted at 5%)? 310 The submissions by the parties on the issue were vastly different. Counsel for the plaintiff drew attention to the evidence of Dr Milder and his comments upon the plaintiff's likely future, in terms of his back. Dr Milder stated that the level of his disability for heavy work of the sort he used to perform is about 60% to 70% at present (supra [243]), but likely to increase to 70% to 80% in the next decade, as his back deteriorates. Dr Milder said this: (T 167) "Q. So I understand this, you say currently you regard there is a reduction in his physical abilities to perform the work described in the order of 60 to 70 percent? A. Yes.

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Q. And in 10 years you'd anticipate it would be 70 to 80 percent? A. Yes, but I'd have to say as a clinician were I to advise him on the basis of the whole story and the radiologic findings I would advise him against doing any heavy mechanical work at this time. But that may not be relevant but as a clinician that's what one would say to such a person." 311 Counsel suggested that, using Mr Freudenstein's current wage of $950 per week net, a 30% reduction in earning capacity for the next ten years (age 47 to 57 years) amounts to $285 per week. For the last ten years of his working life (age 57 to 67 years) a 40% reduction will amount to $380 per week. Using the 5% discount tables (deferred in respect of the later loss) and allowing 15% for vicissitudes, the appropriate award for this item, according to the plaintiff, is $181,916. 312 The defendants' position was that nothing should be allowed. There was no loss of earning capacity. The defendants said this: (DS [54]) "54. The defendant submits that the plaintiff has not made out a case for a diminution in earning capacity, nor is there any sound foundation for calculating such loss. Whilst this is not definitive of the plaintiff's loss, and indeed this court can make a finding of economic incapacity if it is thought fit so to do, the defendant says that it is not an appropriate case in which to award a cushion or buffer in this context. The plaintiff is clearly earning a substantial income of $950 per week net and no evidence is sought to be adduced by the plaintiff to suggest that he would do any better working as a mechanic or indeed in any of the other occupations he had previously followed. This is assuming, of course, it is accepted that he could no longer engage in those occupations." 313 I find neither submission attractive nor persuasive. The plaintiff, for the last nine years and at the present time, has been receiving no less than he would have earned had he not been injured. I accept that there has been a loss of earning capacity and a probable shortening of his wage earning life. But that does not equate to a weekly loss. I believe it is unrealistic to approach his loss upon that basis. Certainly, it is helpful to calculate the deferred loss of the likely shortening of the plaintiff's wage earning life. Such a calculation will provide some guidance. Using the deferred discount rate of 5% for the final two years of his working life, the appropriate discount figures (were he to work to the age of 67) are 0.396 and 0.377. However, the plaintiff would not necessarily have worked until the age of 67, although that is becoming the norm. He may have retired earlier. For that reason, I prefer to approach the matter on the basis of a foreshortening of his wage earning life by, say, two years. Were he to retire earlier, then a different discount rate would apply. So the figures are only a guide. On my calculations, using the deferred rates and making the assumption of 67 years as the retirement date, and allowing 15% for vicissitudes, the loss would be of the order of about $31,000 (using a net weekly wage of $950.00). 314 Taking both aspects of the plaintiff's loss into account (a loss of capacity and the foreshortening of working life), I believe it is reasonable to allow $65,000 for this aspect.

Freudenstein v Marhop Pty Ltd & Ors

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Cases Cited (42)

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