Gaskin v Ollerenshaw [2010] NSWSC 791 | Case summary

Gaskin v Ollerenshaw [2010] NSWSC 791 | Case summary | Zoe

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The Plaintiff and his History prior to December 2002 12 The plaintiff was born in the United Kingdom in 1958. He attended school in the United Kingdom until he was 12 years old. 13 Together with his parents and family he migrated to Australia in 1970. Although still only 12 years old, the plaintiff did not attend school again. After arriving in Australia, the plaintiff's work has consisted of a variety of labouring jobs but principally, he has been a roof restorer and painter. That was his father's trade, and upon arrival in Australia the plaintiff worked with his father for considerable periods of time. 14 At the age of 13, the plaintiff was diagnosed with juvenile onset Type 1 diabetes. He has since that time been insulin dependent and self-administers insulin when required. 15 He met and married Ann Gaskin in 1978. They have three children who are now adults. Their son who is now 27 years old was diagnosed in 2003 with a form of schizophrenia. He continues to suffer from that condition. 16 The plaintiff has a number of grandchildren and at present is living on a property where he and his wife occupy the house, their daughter and grandchildren occupy one caravan and their son occupies another caravan. There is a third caravan on the property which seems to be unoccupied. Their third child, a daughter, does not live with them. 17 In 1986, the plaintiff was engaged in painting a roof and slipped on some paint. He fell from the roof but was able to take hold of the gutter of the roof before he dropped to the ground. He ultimately dropped to the ground and injured his back. He was in hospital for a period of about two weeks or so. He returned home and had about six weeks off work but then returned to work with his father whilst wearing a brace on his back. He continued to wear the brace for about ten months. He said that, once he removed the back brace, he was able to continue to work without any further problems with his back. 18 In 1995, when the plaintiff was living in Tasmania, he was walking in a caravan park and tripped over a wire and fell. He fractured his left shoulder in the fall. He seems to have recovered well from that injury and was able to return to work as a roof painter. At about that time, as a consequence of his diabetes, the plaintiff suffered a condition known as bleeding retinopathy which resulted in a series of laser treatments to both eyes. Again, after a period away from work, he returned to work and was able to continue with his trade. 19 The consequence of both the injury to the left shoulder and the laser treatment was that he was unable to work for a period of approximately 18 months in 1995 and 1996. 20 After his time away from work in 1995 and 1996, the plaintiff was able to return to work, undertaking roof repairing, restoration and painting. He employed his son. He generally undertook three to four jobs per week. 21 In 1999 and 2000, it became necessary for the plaintiff to obtain a contractor licence so as to be able to undertake roof restoration and painting work in New South Wales. He was able to obtain that licence which was issued by the Department of Fair Trading. The licence certified that he was qualified as a "… painter (to roof tiles only), roof tiler (repairs only)". In 2001, the plaintiff also satisfactorily completed an accredited course for Occupational Health and Safety Induction Training for Construction Work. That was a course conducted so as to satisfy the requirements of the Construction Safety Amendment (Amenities and Training) Regulations 1998. 22 On 24 March 2001, the plaintiff was a pedestrian and was hit by a motor vehicle travelling at low speed. He suffered a closed head injury, and an injury to his neck. He was admitted to the Wollongong Hospital where he remained for about seven days. An x-ray taken on 24 March 2001 reported some degenerative changes of a mild kind. It also reported that there appeared to be: "an anterior wedge compression fracture involving the body of C7 with approximately 30% height loss anteriorly.

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The x-rays also demonstrated that on flexion and extension there was a general limitation in the range of movement of the neck and back. 23 After his discharge from hospital, his general practitioner, Dr Ann Ellacott, referred the plaintiff to the Illawarra Brain Injury Service. She continued to see him from time to time in 2001 and 2002, including in October, November and December 2002. 24 There is no doubt that the plaintiff suffered a degree of injury and disability from his motor vehicle accident in 2001. There was a dispute between the parties as to the extent of that disability and, particularly, the period during which that disability subsisted. The plaintiff, his wife and daughter all gave evidence which was substantially to the effect that, by about mid 2002, the plaintiff commenced a real improvement from his symptoms and disabilities so that by October or November of 2002 he was "… back to his old self …" and was fully fit for work. It is to the plaintiff's credit that he made attempts in December 2002 to get back to work and had commenced seeking out work by placing advertisements on telegraph poles and the like. That was how the defendant came to know of the plaintiff and how he contacted him. 25 However, the contemporaneous medical records which are to be found in Ex 5 do not bear out the same optimistic picture of his health as was described by the plaintiff, his wife and daughter. Having regard to the fact that eight years or so has passed since the events of 2001 through to late 2002, I regard the contemporaneous records as likely to be the most accurate source of the facts about the state of the plaintiff's health. Where there is divergence between those records and the oral evidence, I prefer their account of events of the time contained in those contemporaneous records. 26 In August 2001, the plaintiff reported to Dr Chan, a specialist in rehabilitation medicine at the Illawarra Brain Injury Service, that he had significant symptoms of constant headache over the vertex and occipital region which was causing him frustration. He reported problems with sleeping, and occasional feelings of nausea. 27 The plaintiff at that stage told Dr Chan that he was wanting to get back to work in the trade with which he was familiar, namely roof restoration and painting. Dr Chan diagnosed him as having symptoms of depression including reduced concentration, dysrhythmia and reduced interest including sexual drive. It was Dr Chan who started him on an antidepressant, Efexor, and pain medication. Dr Chan regarded the plaintiff as unfit for work at that time. 28 The plaintiff was reviewed by Dr Jonathon Wyatt, a rehabilitation specialist at the Illawarra Brain Injury Service, in September 2002. The plaintiff reported to Dr Wyatt that since his August 2001 visit to Dr Chan he had suffered from daily headaches, depression, cognitive deficits, "dizzy spells" and poor impulse control. Dr Wyatt noted some associated neck pain with his daily headaches. He noted that the plaintiff still had a number of symptoms of depression. The plaintiff told Dr Wyatt that he kept notes in order to remember appointments. I observe that this is after a time when the plaintiff and his family say that the plaintiff had significantly improved. 29 On examination, Dr Wyatt noted some physical limitations of movement in the neck and various other degrees of tenderness around the upper part of the body. Dr Wyatt thought that the plaintiff presented with symptoms consistent with a traumatic brain injury. He thought he remained depressed and should continue on antidepressant medication. Dr Wyatt thought that the plaintiff ought have a formal neuropsychological evaluation to clarify the extent of his cognitive deficit, and the lasting effects of the 2001 motor vehicle accident. 30 He concluded that the plaintiff was currently unfit to return to his normal duties and declared him to be unfit for work for the next three months (ie, up to December 2002). 31 Although the material to which I now refer appears in a report of 3 April 2003 from Mr Ross Barnes, a clinical psychological at the Illawarra Health Service, which was at a time after the plaintiff's accident, it usefully captures contemporaneous material of the time before the plaintiff was injured on 9 January 2003. 32 Mr Barnes records that the plaintiff attended at the Rehabilitation Psychology Department of Port Kembla Hospital for initial assessment on 13 November 2002 when he was accompanied by his wife. He also records that the plaintiff was subsequently seen for testing on 29 November 2002 and 17 December 2002. 33 Mr Barnes recorded the following history given by the plaintiff: "Since the accident, Mr Gaskin complained of having intermittent headaches, which have improved over time due to physiotherapy and rest. He also reported significant problems with memory loss since the accident, particularly in short-term memory. He stated that his attention span had declined, he would often lose things around the caravan, and forget the names of both familiar and unfamiliar people. He said that he reads much less now because of the hassle of having to re-read pages. …… He had noticed some topographical disorientation when driving along unfamiliar routes." 34 Mr Barnes also obtained a history from the plaintiff's wife, Mrs Gaskin. He recorded it in this way: "His wife of 24 years reported that since the accident he had become less loving, intolerant, flattened in affect, and short-tempered, although the latter had improved somewhat with medication and counselling with the IBIS social worker. She felt that he had struggled with depressed mood since the accident, which had led to poor sleep, reduced libido, fluctuating levels of appetite, social withdrawal, and disinterest in significant others and himself (eg, self care). This is supported by Mr Gaskin's responses to the Depression Anxiety Stress Scales, which indicated severe levels of stress and depressed mood, and anxiety levels within normal limits for the week preceding the initial assessment. Mr Gaskin identified a number of ongoing psychosocial and financial stressors that were affecting him at the time of the assessment. Following the accident, he reported that his consumption of alcohol had increased slightly from minimal to social/moderate levels, and he tended to self-medicate, combining Panadeine Forte and alcohol (as a last resort) to cope with his headaches." 35 Mr Barnes administered a series of tests with which the plaintiff was compliant. Because the tests were not completed due to the plaintiff's accident, the subject of these proceedings, Mr Barnes notes that the findings obtained on tests assessment are somewhat tentative. Nevertheless, Mr Barnes concluded his report with this material: " Summary and Recommendations

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Mr Gaskin was referred for investigation of cognitive deficits following a traumatic brain injury sustained on 24 March 2001. Since the accident, he and his wife reported noticeable memory loss, inattention, some topographical disorientation, frequent headaches and personality changes associated with depressed mood. The neuropsychological assessment could not be completed due to Mr Gaskin being hospitalised in Sydney. Test findings revealed significant deficits in visual memory, visual acuity and cognitive processing speed. The overall significance of these results should be interpreted with some caution, given his level of depression and our inability to complete testing." 36 The pre-accident picture of the plaintiff is completed by reference to the notes of his general practitioner which are also found in Ex 5. Those notes demonstrate that, on 3 June 2002, the plaintiff attended at his general practitioner's surgery where he was prescribed both Efexor and Panadeine Forte. This suggests that he was continuing at that stage to suffer from symptoms of depression and pain to an extent which required prescription medication for relief. 37 Although he may have attended earlier (the notes are indistinct), the plaintiff certainly attended his general practitioner in October 2002 and made a complaint to his general practitioner about his mood. His general practitioner again prescribed Efexor, an antidepressant, and also Panadeine Forte for pain. 38 He again attended on 29 November 2002 when the consultation concerned, amongst other things, his mood. At that time, his general practitioner certified him as unfit for work for three months (ie, until the end of February 2003) and asked him to return for a review in two weeks' time. 39 He returned for review in December 2002, largely it appears with respect to his diabetic condition which was poorly controlled, and his medication for his diabetes was altered. 40 Whilst I am prepared to accept that throughout the latter half of 2002, the plaintiff showed some improvement in his condition, and as I have noted above, it is to his credit that he made arrangements to return to work, I do not regard him as having fully recovered from his physical injuries and depression sustained in the 2001 motor vehicle accident by the end of 2002. If he was fully recovered by then, I do not think that he would have bothered to attend for neuropsychological testing on two occasions in November 2002 and on one occasion on 17 December 2002. I do not think he would have continued to visit his general practitioner on the occasions to which I have drawn attention. I do not think he would have continued to obtain antidepressant medication, nor relatively strong pain relief medication. 41 As well, I note that Dr Wyatt in September 2002 thought that he was unfit for work for the next three months. His general practitioner thought the same on 29 November 2002. 42 These opinions expressed by experts stand in marked contrast to the oral evidence of the plaintiff and his family. As I have said earlier, I prefer the opinions of the experts and the contemporaneously recorded notes. 43 I am of the view that, by the time the plaintiff came to undertake the work on 9 January 2003, that he had recovered a part of his working capacity but not all of it. The extent of his working capacity will require further consideration when considering what, if any, component for lost earning capacity needs to be attributed to the injuries he sustained on 9 January 2003.

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The Work at Kings Langley and the Plaintiff's Accident - The central and uncontroversial facts 49 Both plaintiff and defendant agree that the first contact between them came about when the defendant telephoned the plaintiff having obtained his contact details from an advertisement on a telegraph pole. Arrangements were made to meet at the Kings Langley house on 30 December 2002, in order for the plaintiff to give the defendant a quote for painting the roof. 50 There is considerable divergence in the evidence about what occurred at the Kings Langley house on 30 December 2002. 51 At this point, there is no need for me to examine the detail of that dispute. Both parties are agreed that after some discussion the plaintiff provided the quote, which is Ex C, to the defendant. 52 That quote noted that the plaintiff was to paint the roof with acrylic paint, consisting of two primer coats and two top coats and that it was to "… to be done on the 10-1-03 or sooner. Please ring …". The sum quoted was $1,200. 53 Contact was made between the plaintiff and defendant, although the date is undisclosed, and arrangements were made for the plaintiff to return to the property on 9 January 2003. Again there is some divergence in the evidence about the detail of this contact which is unnecessary to resolve. 54 On 9 January 2003, the plaintiff travelled from his home which was then at Windang, a little to the south of Wollongong, to Rydalmere where he collected the paint to undertake the job, and then proceeded to Kings Langley. His recollection was that he arrived there at about 9.30 am. According to the plaintiff, he had a short discussion with the defendant indicating that he was there to paint the roof. He asked the defendant to plug in an electric cable which operated his painting equipment. There was a discussion about how long he expected the job to take. The plaintiff then set about unloading various ladders and erecting them. It seems that he erected a ladder at the back of the house away from the street and also erected one at the front of the house resting on the edge of the flat verandah roof. He then set up his machinery and prepared the equipment to enable painting to occur. 55 The plaintiff's painting equipment was located on a trailer which was attached to his motor vehicle. Although in evidence a number of witnesses described the vehicle as "a ute", the photographs of 9 January 2003 (Ex E), show that the plaintiff's vehicle was a sedan towing a trailer. The motor vehicle and trailer were parked in the driveway of the house. The plaintiff had paint lines consisting of two 30 metre lengths of hose which allowed him to paint the roof via a six foot long pole gun which meant that he did not have to walk on the fibro roof. However, he clearly needed to be able to stand near the bottom of the sloped fibro roof to carry out his task. 56 After the plaintiff climbed on to the flat verandah roof at the front of the property he commenced to paint the sloping roof. He reached the corner of the sloping roof at the point where the verandah roof is immediately above the main entrance to the house. He described what happened in this way: "I was still standing on the skillion roof then. I got to the corner. I had to step into the metal gully to reach up to the furthest point. I sprayed that. I got about two metres across the roof, was spraying [sic]. I stepped all my weight on to my left foot which was still on the skillion roof. It had never come off. And I heard a bang. … I woke upon the ground. … The skillion had dropped like a huge trapdoor, completely from end to end and from the sides totally down and was leaning fully intact against the support poles at the front of the house." (T26)

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In the last answer, Mr Nicholson made it clear that when he used the word "them" he was referring to the metal covers which covered the fascia board. 59 Mr Nicholson agreed that the fact that the verandah roof was attached by a defective method, namely nailing through the fascia board only, and the fact that the beam behind the fascia board was itself the subject of wood rot, could not be seen by any person who was standing on the concrete verandah floor looking up or else standing on the roof and looking down. 60 His opinion, which was accepted by both parties, was that in order to uncover the defects to which I have just referred it was necessary for an expert builder to have either removed the ceiling panels from underneath the roof and exposed the fascia board and beams, or else to have removed the Cliplock roof cladding from on top and do the same. Even then, he said, it may not have revealed the way in which the timber had been affixed with nails only to the fascia board. 61 On the basis of this evidence, I am satisfied that this defect was not discoverable unless an expert builder undertook building work which included demolition in part of the existing structure by removal either of the ceiling panels underneath the roof or else of the Cliplock aluminium roofing. Mr Nicholson estimated that it would take two to three hours work to remove and replace the underneath ceiling panels or else a similar period of time for undertaking the removal of the Cliplock roofing and accessing the verandah roof frame from above. 62 What is also clear from the evidence of Mr Nicholson and the scene depicted in the photographs is that the plaintiff did not fall through the roof because the Cliplock panelling was inadequate to hold his weight. Rather, what occurred was that the entire frame of the roof pulled away from its fixing to the side of the house and the whole roof fell down as though hinged on the front supporting pillars. 63 When the plaintiff came into contact with the ground he sustained serious injuries. 64 Ambulance and fire brigade officers were called to the scene. The fire brigade secured the scene including by placing tape around the front of the building to prevent anyone approaching, at least, the front verandah of the building. 65 According to the ambulance report which forms part of Ex M, extraction of the plaintiff from the collapse scene was delayed until the fire brigade could secure the structure. The ambulance report records the following: "O/A [on arrival] found [male] lying [right] lateral on concrete verandah with awning structure unsupported, unstable [with] possibility of falling onto [attending] ambulance officers. Police and fire brigade called. Structure secured prior to extraction of [patient]. O/E [on examination] [patient] conscious, lucid stating he had fallen from roof when awning collapsed landing heavily onto [left] leg." 66 The ambulance report records that the first call taken by the Ambulance Service was at 11.16 am, they arrived on the scene at 11.25 am and made contact with the plaintiff at 11.27 am. The first assessment of the plaintiff's condition took place immediately and is then recorded at 11.30 am, by which time he was being administered methoxyflurane, an emergency anaesthetic, via an inhalant. An intravenous drip was established and maintained in place at least from 11.33 am until 12.15 pm when, it seems, the plaintiff was extracted from the verandah to be placed in the ambulance. It departed from the scene at about 12.21 pm. 67 The ambulance report records that the ambulance officers estimated the time of the incident to have been 11.10 am. There does not seem to be any particular basis for this estimate. But the ambulance was summoned promptly after the plaintiff's fall, and so it was probably within a few minutes before 11.16 am that the accident happened. 68 I have taken some time to draw attention to the features of the ambulance report because it was completed contemporaneously with the events and is likely to be the most accurate source of when the accident occurred and what happened at the scene. 69 The plaintiff was taken by the ambulance to the Westmead Hospital where he arrived at about 12.40 pm. 70 It will be necessary in due course to describe the plaintiff's injuries and their consequences. It is sufficient presently to note that he was diagnosed with a subtrochanteric fracture of the left femur and compression fractures of the T12, L1 and L2 vertebrae. His femoral fracture was the subject of an operation performed on 10 January 2003 when an intra medullary proximal femoral nail was inserted. He remained in hospital until 4 February 2003 when he was discharged to return home to his family.

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(c) In the post accident conversation between the plaintiff and the defendant to which I have made reference in [182] . 76 A similar theme was seen in the evidence of Mrs Hobby where she said that during the many phone calls which occurred on 9 January 2003 the defendant said to her words to the effect, "When is this roof going to be done? I need to get this house painted so I can get it on the market, I need it done." (T115.11). In cross examination she gave an account of what she said was the third conversation of the afternoon, where the defendant said to her "Look I just want to know when is somebody going to come out and paint my roof, I need this fixed, I need to get it on the market." (T130.41) 77 Based on these conversations, which the plaintiff submits ought be accepted, it is contended that the defendant and his wife were engaged, in effect, as property developers attempting a speedy and cheap "make-over" by way of a renovation which led to the defendant urging the plaintiff to take a short cut with safety, in the interests of saving the defendant money. 78 The evidence of the defendant and his wife was that they intended, having purchased the property to undertake some minor renovation by way of painting and general tidying up, move into the property and, having lived there for some time, to ultimately to sell it. The defendant's wife was pregnant at the time of the exchange of contracts on 30 November 2002 and gave birth on 5 December 2002. 79 The defendant's wife, Mrs Kylie Ollerenshaw, said in her evidence in chief that the purpose for which they were buying the house was: "To move in, do some work within the house and to increase the value and down the track to sell it." (T296.46) Mrs Ollerenshaw was cross examined about her purpose. She adhered to what she had said in her evidence in chief. I accept that evidence. 80 No instructions were given at the time the property was purchased, or when settlement occurred, to NSC to prepare a contract for sale. It is a requirement of the relevant legislation that before a property can be offered for sale there needs to be a contract available for prospective purchasers: s 66R Conveyancing Act 1919. The defendant and his wife had not taken this first step at any time prior to the accident with respect to the Kings Langley property. 81 In January 2003, it was the understanding of the defendant that if he did not move into and live in the property for a period of at least 12 months, that he would not gain a benefit by way of a reduction in capital gains tax. Hence, he said in his evidence he did not intend to sell the property quickly. Although the property was in fact sold in a relatively short space of time, the defendant gave evidence that this was caused by a change in his financial circumstances. I accept that evidence. 82 Neither the defendant nor his wife were in the business of being property developers, even in a small way. They were not in the business of buying houses, doing them up and on-selling them at the first available opportunity. This was the third house that the defendant had owned. He initially joined as a one third holder of a property with various members of his family in the purchase of a property. He and his wife had owned one house previously, and were living in it, with his mother, at the time of the plaintiff's accident. 83 Rather, so it seems to me, they were going to purchase this house to live in it, particularly since they had a newborn baby. The house was to have some minor renovation work done to it, particularly tidying it up, cleaning it and painting it to make it more pleasant to live in. I have no doubt that at some time in the future, at least in the order of a year or more, they might have considered selling and upgrading their premises with the assistance of an increase in the property value. However, that is a very long way from the underlying motivation about which the plaintiff asserts he was told. 84 Since I am satisfied that the defendant and his wife did not have the motivation which the plaintiff says he was told about, it is highly unlikely that the contents of the various conversations to which the plaintiff made reference in his evidence ever occurred in the terms which the plaintiff or his daughter recount.

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Work on the Property on 30 December 2002 95 It is the plaintiff's evidence that, on 30 December 2002 when he visited the Kings Langley house for the first time in order to give a quote for the painting of the roof, there was a degree of internal construction work which had been and was continuing to be carried out. The plaintiff said that he looked into the front room which appeared to have been gutted with only the framework required for holding gyprock panels remaining. He saw that the panels had been removed and as well that the ceiling had been demolished. 96 He said that he noticed that on this day there were four people working on the property. He observed that one was outside clearing the garden, including shifting plants and rocks in the garden. He said he saw two other people inside the house one of whom was pulling off the plasterboard and the second was sweeping the floor. In addition, the defendant was present. 97 The defendant denies that on 30 December 2002 any work had been commenced on the property and denies that there were four people present on the property. The defendant's case is that he did not have internal access to the house at that time but merely showed the plaintiff the roof from outside the house on the front lawn and asked him to give a quote from there. 98 It is to be remembered that on 13 December 2002, the vendors' solicitors had informed the defendant, via the facsimile to Mrs Whiteley at NSC, that their clients were not prepared to allow the defendant and his wife to move into the property under licence because the vendors planned to utilise the period after Christmas to complete the clean up of the property which they were endeavouring to finalise by the time of settlement. 30 December was five days after Christmas and would fall within the period which the contemporaneous records suggest was to be used by the vendors to clean up the property. It certainly fell well within the period during which the vendors would not permit occupation by the defendant and his wife. 99 As at 30 December 2002, about two weeks remained before settlement was due. It is unlikely that the vendor would have permitted substantial renovations of the kind described by the plaintiff without specific arrangements being made with the defendant as to what the consequences would be if the settlement did not proceed. There is no evidence of any correspondence between NSC and Grech Partners, of the kind which would be expected, addressing such arrangements. As well, there is no evidence of any correspondence in which any request was made for permission to undertake the renovations on 30 December 2002. Nor is there any evidence of any arrangement being made for the key to be handed over prior to 30 December 2002 to enable the renovations to commence. 100 The evidence of Mr Damon King is to the effect that work similar to that described by the plaintiff in fact took place on 9 January 2003. Although it might fairly be said that Mr King's evidence had suffered from the elapse of more than seven years since the events in question, he was firm in his evidence that the first time he went to the property was on the day the accident happened to the plaintiff. I accept that evidence. The description of work which he gave in his evidence as to what he did at the property is very similar to the description of some of the work which the plaintiff said was being carried out on 30 December 2002. 101 The plaintiff submits that his evidence is corroborated by the circumstance that the defendant's wife took out, in their name, an insurance policy with GIO Australia at 7.42 am on 30 December 2002 over the Kings Langley house. The plaintiff submits that the obvious purpose for this was to have insurance coverage in place at the time the work commenced on 30 December 2002, and for the purpose of providing insurance with respect to that work. 102 Some features of the GIO Australia policy (Ex X) ought be noted. 103 Firstly, it is a home and contents policy, and not a policy specifically written to insure construction work, albeit that the work here could be described as relatively minor. 104 Secondly, the only part of the policy which would be relevant to renovation work of the kind being carried out is the legal liability coverage. That cover insured the defendant and his wife against legal liability to pay compensation for an accident that caused death or bodily injury to a third party, or loss or damage to property of a third party. Legal liability coverage was not available for renovations or reconstruction unless the costs did not exceed $50,000 or for asbestos caused disease, or for death or bodily injury to an employee of the defendant while at work for the defendant. If the GIO Australia policy was to cover the renovation work then there were potentially important and significant gaps in the coverage that one would have expected to have been addressed by other policies of insurance, or else by the specific consideration of the defendant and his wife. There is no evidence addressing either of these matters. 105 Thirdly, the evidence of the defendant's wife was that the policy was arranged by her, albeit rather early, on the morning of 30 December 2002. She had been informed by NSC that it was necessary for her to arrange for an insurance policy prior to the settlement of the property taking place. She had been told that the policy needed to be made available to the mortgagee's solicitors at least one week prior to settlement. Exhibit S contains this paragraph: "It is imperative that you insure the building prior to settlement actually taking place, as the risk in relation to the property passes to you on settlement. Please make sure that the property is insured for at least $130,000.00 and that the mortgagees [sic] name is noted on the policy and it must exactly read as Perpetual Trustees Australia Limited, Level 3, 39 Hunter Street, Sydney NSW 2000 as first mortgagee. Please deliver the policy to our office as a matter of urgency. We advise that Trinity Lawyers must receive same no later than ONE (1) WEEK PRIOR TO SETTLEMENT. " 106 30 December 2002 was the first working day after Ex S was written. The arranging of a policy at 7.42 am on the morning of Monday, 30 December 2002, particularly considering that there was at least one day of public holiday during that week, is entirely consistent with the defendant's wife attending to arrangements in advance of settlement which NSC had described as "imperative". The fact that the arranging took place at a relatively early time of the morning is applicable by the fact that there was a new born baby in the family and Mrs Ollerenshaw is likely to have been up and about at that time in the morning. 107 Fourthly, the policy contains information which is consistent with the account given by the defendant's wife. It records for example that the property is occupied by the defendant and his wife, that they had lived in the property for less than three months and had owned it for less than three months. It records that it was not under construction, reconstruction or renovation. On p 4 of the policy, it is noted that Perpetual Trustees Australia Limited holds the first mortgage to the property. Each of these matters are consistent with the policy being obtained for the purposes of it being in place at the time of settlement rather than for the purpose of a policy to cover the risks associated with minor renovations which were being done. 108 I accept the explanation of the defendant's wife that the commencement of the period of insurance on 30 December 2002 was as a consequence of a conversation she had with the officer of GIO Australia to whom she spoke on the telephone rather than because renovation work was being undertaken on that day. 109 In short, I do not accept the plaintiff's submission that the circumstances surrounding the obtaining of the policy of insurance from GIO Australia sufficiently supports the plaintiff's evidence so as to enable me to find that he was correct in his recollection that work was being carried out on the Kings Langley house on 30 December 2002. 110 I reject the plaintiff's account of what he saw on 30 December 2002. I am not persuaded that there was any work being carried out on the Kings Langley house by the plaintiff on 30 December 2002. I think it more likely that the plaintiff's memory of seeing some work being carried out on the property was something which he saw on 9 January 2003. 111 I have undertaken this analysis and come to my conclusion without relying upon my earlier conclusion that the defendant did not have keys to, or access to the Kings Langley house as at 30 December 2002. However, my finding that I am unpersuaded that the defendant had the keys to the property on 30 December 2002 is consistent with, and further supports, the finding which I have made that there was no work being carried out by the defendant at the house at that time.

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(b) A Building Inspection Report from Choice Property Inspections which was faxed to NSC on 6 December 2002 (Ex J) ("the building report"). 113 There is a dispute in the proceedings as to whether either of the pre-purchase reports were given to the defendant, or else whether the contents of either of them ever came to the notice of the defendant at any time prior to the plaintiff's accident. It is appropriate that that dispute be resolved. 114 In his evidence, the defendant accepted that NSC was instructed to obtain both the pest report and the pre-purchase building inspection report. He acknowledged that he had been told prior to the expiry of the cooling off period that the reports had been obtained. It follows that the defendant knew before the plaintiff's first coming to the Kings Langley house and before he commenced his painting work that, at the least, the two reports were in existence. 115 The defendant denied having a copy of either of the reports or reading either of the reports before the plaintiff's accident. 116 Mrs Ollerenshaw, the defendant's wife, gave evidence that she had given birth to her child on 5 December 2002 by caesarean section. She was in hospital for a period after that time and then returned home with her new baby. She said that she had specifically requested NSC to order the reports and she became aware of the existence of the reports when she spoke by telephone with Mrs Whitely at NSC. She said that she had asked Mrs Whiteley whether there was any concern with the reports and had received a negative response. She was unable to recall the date of that conversation. She denied receiving any copies of the documents prior to settlement and said that she first received them after settlement of the property. This necessarily places the receipt of the reports after the plaintiff's accident. 117 Mrs Ollerenshaw said that she had communicated to her husband what she had been told by Mrs Whiteley at NSC, namely that the reports had come through and that there was nothing of concern in them. The defendant agreed that he had received such a communication from his wife. 118 When Mrs Katherine Whiteley, the principal of NSC was initially called to give evidence, she frankly admitted that whilst she recalled the defendant and his wife, she had no particular recollection of the transaction involving the purchase of the property at Kings Langley. She said that she had refreshed her recollection by reference to her file. She indicated that there was no note, fax cover sheet or covering letter on her file which recorded that she had provided the defendant or his wife with copies of the pre-purchase reports. 119 She gave evidence initially, based upon her usual practice, that she believed that she gave the reports to the defendant and his wife. She said that her usual practice was to do it either by hand (which I understood to mean that the reports were collected by her client), or else for the reports to be sent by fax or by email. She denied that at any time, with any client she had ever given any advice about the contents of pre-purchase reports. When asked why that was so she said this: "Q. Why is that? A. Because I'm not a pest inspector or a building inspector. I am a licensed conveyancer. I'm only insured as a licensed conveyancer, I'm not insured as a pest inspector or building inspector. I don't know anything about the reports. All I can tell you, I can order the reports, you must read the report, you must contact the inspectors if you have any queries and it is good idea to contact them anyway, they can tell you more by talking to you than what they can put in writing. The other thing is, we do not get to see the property when they are occupying a property. I don't get to see it. I would not know. I always get them to call the inspectors, call the experts. I have always done it for the last twenty years, that is the way I was taught.

[60]

Q. Would the same apply in relation to a pre purchase inspection report? A. Yes." (T 338) 120 In cross examination, she said that this was one of her first conveyances and that, on average, since that time she had conducted between one and three conveyances a week which may amount to 150 per year. She said that the reason she was unable to recall the details of the particular transaction was because it had occurred over seven years previously and also because she completed a lot of conveyances a year. When pressed in cross examination as to why there was no note recording that she provided a copy of these reports to the defendant or his wife, she said that she did not regard it as important to make such a note. It appears that the position now would be different as she would now have a record of it because: "Well, I've got, you see, I've got emails now. I've got faxes now. I've got proof of everything now but at that stage we didn't have that. The clients came into the office to pick up different documents including pest and building reports." (T347.38) 121 Some of the exhibits assist in the resolution of this issue as they satisfy me that at the time Mrs Whiteley was acting for the defendant and his wife on the purchase of this property she had a fax machine which was in use. Exhibit J bears a fax header on it indicating that it was faxed from Choice Property Inspections on 6 December 2002. It was addressed to the "Conveyancing Manager" which I would conclude was Mrs Whiteley. Exhibit Q, a letter addressed to the defendant and his wife on 9 December 2002 on the letterhead of NSC discloses at the bottom of the page that Mrs Whiteley had a fax number. 122 Exhibits U and V are an exchange by facsimile of correspondence between NSC and Grech Partners, the firm of solicitors who were acting for the vendor. 123 To the extent that Mrs Whiteley was suggesting in her evidence that it was not feasible for the reports to have been provided to the defendant and his wife by facsimile, because she did not have those facilities available to her at the time, I reject it. I think that her memory is in error. Clearly there was a facsimile service, and it was in use at the time. 124 It has not been demonstrated in evidence, that the facsimile although available was used in this case to transmit either of the reports. There is no proof that it was. Mrs Whiteley denied it and there is no facsimile cover sheet or other note to indicate that the reports were sent. 125 It is highly unlikely that on 6 December 2002 or for the week afterwards, prior to the expiration of the cooling off period on 13 December 2002, that Mrs Ollerenshaw would have collected these reports in person. That is because she had given birth to her child on 5 December and was in hospital during that period. Even if she had left hospital, I think it most unlikely that she would have been driving a motor car within a week of having given birth by a caesarean section to pick up the pre-purchase reports. 126 After the hearing was concluded, and judgment was reserved, the plaintiff made an application to reopen his case in reply to recall Mrs Whiteley. The reason to recall her was that there was further evidence which she could give about the defendant being in possession of the pre-purchase reports. 127 For reasons which I delivered at the time, I allowed the application. 128 The effect of the further evidence of Mrs Whiteley was that contrary to the evidence which she had previously given, at a time shortly before the expiration of the cooling off period, she had a telephone conversation with the defendant in which they discussed the contents of the pest report (but not the building report). The conversation was to this effect: "Mrs Whiteley: 'The report says that there may be issues with termites; do you still want to proceed with the purchase?'

[62]

(a) Although there is a note of a telephone conversation at 11am on 13 December 2002 (Ex V) between Mrs Whiteley and the defendant, that note makes no mention of any discussion about, or advice concerning, the pest report; (b) It is not suggested that there were two telephone conversations on that day; (c) The evidence now given suggests a conversation which only touched upon the pest report, but made no mention of the building report. It seems improbable that if Mrs Whiteley was ringing the defendant to speak specifically about the content of the pest report, that she would read only it and then speak about only it without any reference at all to the building report; (d) Having regard to the original evidence, given by Mrs Whiteley, which I found convincing, namely that having regard to the elapse of time and the number of matters she had attended to, that she had no recollection of any matter in the course of this conveyance without inspection of and recourse to her file, it is inherently improbable that her recollection of which she now gives evidence is reliable. (e) The additional evidence is contrary to her own evidence firmly given that she was not an expert in the contents of the pre-purchase reports; (f) The content of the conversation suggests that the defendant had a copy of the pest report and was discussing the content of it with Mrs Whiteley. As I have pointed out above, there is no contemporaneous record of any delivery of the reports to the defendant. (g) Importantly, as well, the contents of the conversation do not reflect accurately any part of the pest report or its tenor generally. In fact, the summary of the report clearly says that there is no visual evidence of any timber insect pest attack. 131 On the whole, I am not satisfied that there was a conversation with the content as deposed to by Mrs Whiteley in further evidence. I reject that evidence. 132 Having regard to the particular circumstances of the defendant and Mrs Ollerenshaw, including the fact of the recent birth of their child, I think it far more likely that in this case Mrs Whiteley did not follow her usual practice of requiring her clients to attend at her office to collect the pre-purchase reports. She was careful, I thought, to make it plain when dealing with the transmission to her clients (including the defendant) of pre-purchase reports that she did not have an actual recollection of what happened in this case but rather to say that she was relying upon her invariable practice. Experience dictates that whilst practices are an important guide to what occurred, they are rarely invariably followed. 133 I do not accept that in this case the defendant or his wife were provided with copies of these reports. I think it far more likely, and I find, that Mrs Whiteley told the defendant's wife over the phone that there was nothing in these reports that needed to concern them. I accept the evidence of the defendant's wife that she was informed by Mrs Whiteley that there was nothing of concern in the reports, which information she passed on to her husband. 134 I conclude that the reports were not provided to the defendant or his wife at any time prior to settlement.

[84]

(c) The versions of the plaintiff seem to me to substantially depend upon the proposition that the defendant had climbed on to and walked on the front verandah roof in order to clean it of debris. This was specifically denied by the defendant. Having regard to the fact that, as at 30 December 2002, the defendant and his wife did not have the keys to the Kings Langley house, and were not in occupation of it, I think it highly unlikely that on 30 December 2002 or else before that time, the defendant would have had any reason, or opportunity, to climb on to the front verandah roof to clean it and I am unpersuaded that he did so. I am also unpersuaded that the defendant would have any reason to lie to the plaintiff to pretend that he had climbed on the roof and cleaned it when in fact he had not. It follows that I cannot accept the plaintiff's version of this conversation. 144 I think that the most likely course of events is that since, at some time before 30 December 2002, the defendant had been informed that the pre-purchase reports had not shown any matters of concern, he informed the plaintiff that he had received such reports and that they had not disclosed any matters of concern. 145 From this, the plaintiff has assumed, as he said in cross examination, that there was no obvious defect or structural concern with the front verandah roof. That was entirely consistent with what he in fact observed himself during his inspection on 30 December 2002. His own observations, combined with information to the effect that the defendant had received the pre-purchase reports which had not disclosed any matters of concern, formed the basis for the assumption that he made that the roof would be safe to walk upon when he returned to undertake his painting contract. 146 In light of this, if such a representation was made by the defendant, it would be neither inaccurate nor negligent. It fairly represented what the defendant knew. It also fairly represented the actual contents of the pre-purchase reports. 147 It follows that I am not satisfied that the representations pleaded in pars 8(k) and 8(l) of the second further amended statement of claim were ever made in the terms pleaded. I am not satisfied that the conversations of which the plaintiff gave evidence as having taken place on 30 December 2002, in the terms referrable to the structural integrity of the front verandah roof and the house generally occurred in the way he asserted.

[85]

Was the account given by Mrs Hobby of what occurred at the accident scene on 9 January 2003 accurate? 148 The analysis of this issue must start with a recounting of the facts at the scene of the accident, in order to give the necessary context to the discussion which follows. 149 When the plaintiff fell, he landed on the concrete floor of the front verandah near to the front door of the Kings Langley house. He was able to look into the house through the front door. The defendant immediately ran to where the plaintiff was to assist him. 150 The flat verandah roof had fallen, as shown in Ex E, so as to be nearly vertical and adjacent to the balustrades of the front verandah. It seems clear that the plaintiff was lying between the nearly upright (but collapsed) roof and the front door. In that position, he could not be seen from the street or the front of the property. 151 The defendant gave evidence that he went to the aid of the plaintiff and asked how he was. The plaintiff said that he needed an ambulance. An ambulance was called. 152 The ambulance records note the receipt of the call at 11.16 am and the arrival of the ambulance at the Kings Langley house at 11.25 am. They note the commencement of analgesia via an inhalant at 11.30 am. 153 The plaintiff's recollection is that he saw the defendant looking at him after the fall. His next recollection is of the ambulance officers being in attendance and giving him "… something in a tube …" ie, an analgesic inhalant. He blacked out and next recalled being in hospital. 154 It is to be observed that the ambulance arrived within about 10 minutes of being called and it must be that the plaintiff's recollection of events ceased about 5 minutes later, shortly after 11.30 am, when he "… blacked out " having been administered analgesia. 155 Mrs Hobby said that she received a call saying that the plaintiff, her father, had been in an accident. It is not clear on the evidence by whom that call was made, nor the time at which she received it. 156 However, by the time she received the call and travelled to the scene, at least 15 minutes or more must have transpired since the accident. That was because, at the time she arrived at the Kings Langley house, she described the scene in this way: "There were ambulances, fire brigades, police, camera people, there was people everywhere. It was very - everybody was in a panic merchant when I got there." (T113) 157 Both the defendant and Mr King gave evidence to the effect that once the fire brigade had arrived, they cordoned off the area where the verandah had collapsed and that those at the scene were gathered up to the front of the property outside the house. They were told to remain out of the front because the roof was unsafe and had to be secured. They were not allowed back into the house. 158 Mrs Hobby's evidence is that when she arrived, she called out to her father, he responded, she went around to the back of the house, entered it, walked through the house, saw up to four workmen continuing with their painting and renovation work, apparently unconcerned with the plaintiff and his accident, and she then had a conversation with her father in these terms: "… my Dad screamed at me to go and turn the machine off because they couldn't go anywhere near him until the machine had been turned off …" (T113.27)

[102]

The Telephone calls of 9 and 10 January 2003 9 January 2003 168 There is a dispute in the evidence about a series of telephone conversations which are said to have occurred on 9 January 2003 between the plaintiff's daughter, Mrs Rachel Hobby, and the defendant. 169 Mrs Hobby gave evidence of receiving a number of telephone calls, between five and seven, from the defendant on her father's mobile phone whilst she was at Westmead Hospital with her father. 170 In substance, Mrs Hobby's evidence was to the effect that the content of these phone calls was that the defendant was inquiring what was going to happen with his roof. As well, the defendant was expressing concern about the need to get the house painted so that he could on-sell it quickly. Mrs Hobby says that on each occasion she responded in terms generally reporting that she did not know the full extent of her father's injuries or else saying that they were quite serious and that she was not concerned at all about the defendant and what was going to happen to his roof. 171 Mrs Hobby gave evidence of having received the five to seven phone calls on her father's mobile telephone. She switched the phone off but some time later she turned it back on because she was waiting for a telephone call herself. She said that within about half an hour of her turning the telephone on the defendant had rung again demanding to know when somebody was going to come out and fix his roof. She said that the defendant again rang back numerous times such that she was forced to give the telephone to her mother because she could not handle receiving the telephone calls. 172 The defendant denied making this series of telephone calls and denied speaking to the plaintiff's daughter over the telephone on 9 January 2003. 173 The defendant agreed that he had a phone call with the plaintiff's wife in which he inquired as to the plaintiff's condition. The plaintiff's wife took that phone call on 9 January 2003. Although there was some minor discrepancy in the content of that telephone call, I am satisfied that in substance it was a call by the defendant on the late afternoon or evening of 9 January 2003 made to inquire about the state of the plaintiff's health and well being. It went no further. 174 I do not accept the evidence of Mrs Hobby about the phone calls which she asserts took place on the afternoon and evening of 9 January 2003. I accept the defendant's evidence that he made no such phone calls. 175 My reasons for adopting this course are:

[108]

10 January 2003 179 On 10 January 2003 the plaintiff underwent surgery whilst an inpatient at Westmead Hospital. The hospital records disclose that the anaesthetic started at 8.40 am and the surgery itself commenced at 9.10 am. The anaesthetic finished being administered in the operating theatre at 10.57 am and the plaintiff arrived in the recovery room at 11 am where he remained until 12.15 pm when he was returned to the ward. 180 Upon his return to the ward the patient was provided with analgesic medication which consisted of morphine administered via a patient controlled analgesia system. That is to say, the patient could self-administer the morphine on an as needs basis. It was noted in the 2pm nursing notes that the plaintiff was using the morphine well. At 2.45 pm, the nursing notes record that the plaintiff had returned to the ward two hours previously and "remains drowsy ++, but rousable". At 7.15 pm that evening. the nursing note records that at the beginning of the nursing shift (7 pm) the patient was "… drowsy but rousable …". A medical note made later that evening but at an unspecified time, notes that the plaintiff was "… now awake …". 181 According to the patient controlled analgesia observation record the plaintiff was recorded as being either occasionally drowsy or difficult to arouse throughout the course of the afternoon of 10 January and was not recorded as being alert at any time prior to 9 pm that evening. Up until 9 pm that evening, the plaintiff seems to have been in regular receipt of morphine in order to address what is recorded as significant level of pain. 182 The plaintiff gave evidence that, whilst in this state, he had a phone call, the terms of which he said he had a clear memory and gave graphic evidence about it. The plaintiff described the phone call in the following terms: "A. My wife said answered the phone and she says, 'He's here, I will give you the phone'. And I got on. I says, 'Hello'. He said, 'It's Matt'. I said, 'Hi Matt'. He said, 'When are you going to do my f'ing roof?'. I says, 'Matt, I can't … you're joking'. I says, 'I can't do any roofs mate'. I said, 'I'm I have just had an operation'. I said, 'I can't even walk yet'. I says, 'I can't do your roof'. He says, 'I want my fucking roof done'. He says, 'You're doing it'. I says, 'I can't'. He says, 'I know you have got no fucking insurance'. He says, 'You fucked my roof, you fucked the verandah, I want my roof painted. I have got to sell this place. You get it painted now'. I says, 'I - I - I can't do it'. He said, 'You have got friends. Get them to do it'. I says, 'Matt, can't you get anybody else?'. He says, 'I want you to fucking do this roof. You got it. You do it. Now, get somebody'. With that, he hung up." (T28.20) 183 According to the plaintiff's evidence, this occurred at a time shortly after he had been taken out of the operating theatre whilst he was in extreme pain, on a morphine drip and was being fed other pain killers at the same time. When challenged in cross examination about this telephone call, the plaintiff said that when he took the phone call he had been awake for about 20 minutes or half an hour which I understood to be a reference to the period of time after he had recovered from the anaesthetic for his surgery. When in cross examination about the terms of the conversation, it was put to him that the conversation did not occur as he had said it did, the plaintiff responded by adding to the terms of the conversation which he gave in chief in the following way: "Q. You could have just said to him 'Mate, I haven't been paid. Sorry. Can't do it', and hung up? A. I told him I could not do it. He threatened me that if I didn't get it done, he knew I had not got any insurance and he was going to sue the ass off me.

[110]

Q. What for, not getting the painting done? A. No, for damaging his verandah, collapsing the verandah." (T86.31) 184 Again, when further pressed about the accuracy of the conversation, he gave this evidence in cross examination: "Q. Couldn't you just say 'Look, mate, I have been badly injured. I have no one to help me'. Didn't you say that to him? A. I told said to him 'I can't do it. I have just had an operation. I can't even walk. What do you want me to do'? He says 'You've got mates. Get the fucking thing done. I want to sell it', was his words." (T87.20) 185 The plaintiff was not willing to concede that his recollection of the conversation might be in any respect inaccurate or unclear. Rather he gave evidence that he had a very precise, clear and positive recollection of every word which was said. 186 The defendant denied speaking with the plaintiff on the day after the accident, being the day of the plaintiff's operation, although he agreed that he rang a couple of days after the accident and spoke to the plaintiff but the purpose of the call and the content of it was to inquire as to his condition. He denied demanding that the plaintiff attend to finish off the painting job on the roof. Rather, the defendant says that the plaintiff offered to arrange for someone to come and finish the job. 187 The plaintiff's wife gave some short evidence about the fact that a phone call was received on 10 January 2003 some time after the plaintiff had come out of the anaesthetic. She gave no account of the terms of the conversation other than saying that she heard the plaintiff say to, apparently, the defendant: "I'll arrange something. I'll sort it out." She said that, after the conversation was finished, the plaintiff asked her to arrange for her brother to come to the hospital. Mr Kefford, the plaintiff's brother-in-law, gave evidence that having been requested to come to the hospital, he was there asked by the plaintiff to attend to finishing off the painting job at the defendant's house. 188 Whilst the evidence of the plaintiff's wife is corroborative of the fact of a telephone call, it does not corroborate the content of it and is consistent, as it seems to me, with the defendant's evidence as well as being in part consistent with the plaintiff's evidence. I would have expected, had the telephone call occurred in the terms which the plaintiff described, that he would have relayed the content of it to his wife, if she had not heard his part of the conversation, and she would have been able to give evidence of it. She gave no such evidence. 189 In determining the issue of this disputed conversation, I place importance on the plaintiff's physical state at the time the conversation is alleged to have occurred. At that time, the plaintiff had recently been under a general anaesthetic for some hours whilst the operation on his femur occurred, and had a regular intake of morphine, the effects of which were noted in the hospital records to have been to make him drowsy++ and not alert until any time before 9 pm that evening. This makes it highly unlikely that the plaintiff would have been in a fit state to receive such a phone call. As well, it is unlikely that he would have been able to respond to the defendant in any meaningful way. Finally, I think it most unlikely that he would, notwithstanding the intake of morphine, an opiate based analgesia, have an accurate, clear and precise recollection of the conversation after all of this time. 190 When these doubts are taken into consideration, in combination with the limited degree of corroboration by the plaintiff's wife, and the clear and unequivocal denial by the defendant, I must reject the plaintiff's account of this conversation. In the result, I cannot be satisfied that the conversation occurred in the terms which the plaintiff asserts.

[111]

The Legal Obligations of a Home Owner to an Independent Contractor 191 The defendant was the equitable, but not legal owner of the property at Kings Langley as at 9 January 2003. He became the legal owner upon settlement of the contract on 10 January 2003. 192 As at 9 January 2003, the defendant had not lived in the property although he had visited it on a limited number of occasions. The defendant was a painter and decorator by trade although he had not done any roof painting prior to 9 January 2003. He had been carrying on his trade as a painter and decorator for about seven years or so at the time he purchased the property. 193 In the course of carrying out his trade he had painted both the interior and exterior of residential and commercial buildings. This required him to prepare the surface for painting including work on eaves and barge boards. He agreed in cross examination that part of his trade, if painting outside surfaces such as barge boards, was to inspect for damage and if damage was identified, to inform the owner of the damage and leave it to the owner's judgment as to what ought be done. 194 He agreed that when he examined the outside of premises with a view to doing painting work he would look for deterioration and damage to surfaces which required painting in order to inform the owners. He agreed that there was no difference between barge boards and fascia boards. He agreed he was familiar with the possibility of damage to timber, particularly at the end of barge boards, from water seepage because of poor construction or the like. 195 The plaintiff was an experienced roof painter and worked as an independent contractor. 196 The first issue that arises is whether the knowledge of the defendant gleaned from his trade puts him in any different position than an ordinary householder. 197 I do not think that, in this case, it does. It is to be remembered, as I have adverted to earlier in this judgment, that the opinion of Mr Nicholson was that in order to uncover the defects which led to the collapse of the verandah roof, it was necessary for an expert builder to have removed either the ceiling panels from underneath the roof or else to have removed the Cliplock roof cladding from on top of the roof so as to expose the fascia board and beams to identify any timber rot. That sort of exercise is not within the trade which the defendant knew and was not the sort of matter of which it was said he had any experience. 198 The skill of the defendant was to be able to identify the existence of external deterioration and potential damage to timber boards by conducting a visual examination for the purpose of painting. It did not extend beyond to any greater skill or knowledge such as a builder might have. 199 One additional matter needs to be taken into consideration. As I have found earlier in the judgment, the defendant only had access to the Kings Langley house for the first time on 9 January 2003. He had inspected the premises before contracts were exchanged and he had conducted a final inspection on 8 January 2003 for the purpose of settlement planned on 10 January 2003. Thus, the defendant's opportunities to make any observation of defects in the premises would have been more limited than many other occupiers who had lived in a house for longer periods of time. However, the importance of this is diminished by the evidence of Mr Nicholson that the defect was not observable without building work of the kind I have previously described being undertaken. 200 In all of the circumstances, the defendant seems to me to be in no different position from any ordinary householder, with respect to the legal obligations which may be imposed upon him. 201 Accordingly, when coming to consider the obligation of the defendant to the plaintiff, I do so from the perspective that the defendant was the home owner or householder and the plaintiff a skilled independent contractor attending the premises to undertake his trade. 202 The obligation of an occupier of premises to a person who is lawfully upon the land is one to take reasonable care to avoid a foreseeable risk of injury to the plaintiff: Hackshaw v Shaw (1984) 155 CLR 614 at 662 - 663 per Deane J; Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 at 488 per Mason, Wilson, Deane and Dawson JJ; and Baker v Gilbert [2003] NSWCA 113 at [29] per Ipp JA, Hodgson and Tobias JJA agreeing; Uniting Church in Australia Property Trust v Takacs [2008] NSWCA 141 per Hodgson JA at [29]. 203 There is no tortious duty on occupiers to inspect their premises for the purpose of discovering unknown or unsuspected defects: Stannus v Graham (1994) Aust Torts Reporter 81-293 per Handley JA; Aslanidis v Atsidakos, NSWCA, 13 February 1989, unreported, per Meagher JA, Hope JA agreeing; Short v Barrett, Court of Appeal, 5 October 1990, unreported, per Meagher JA, Handley and Clark JJA agreeing; Ordukaya v Hicks [2000] NSWCA 180 at [44] per Sheller JA. 204 However, there is no rule of law to the effect that occupiers who do not know of the existence of a defect in their property that might cause danger to lawful visitors, but who are aware of circumstances which would alert a reasonable person to the danger from a defect may, without negligence on their part, ignore the existence of the defect: Baker v Gibert supra at [38]. 205 What the circumstances are which would alert a reasonable person to the danger from the defect is a matter of fact which depends upon the circumstances of each particular case: Perkovic v Owners Strata Plan 8806 [1999] NSWCA 153 at [10]; Drotem Pty Limited v Manning [2000] NSWCA 320 at [47]. 206 One factor which is to be considered in the context of the surrounding circumstances relevant to both the existence of a duty of care and a breach is the weight which ought be given to an expectation that, in this case, the plaintiff would exercise reasonable care for his or her own safety, particularly having regard to his experience in the painting of roofs: Thompson v Woolworths (Qld) Pty Limited (2005) 221 CLR 234 at 246 [35]; Balesfire Pty Limited t/as The Gutter Shop v Jamie Adams & Ors; Jamie Adams v Balesfire Pty Limited t/as The Gutter Shop & Ors [2006] NSWCA 112 at [48]. 207 As well where an independent contractor carrying on a particular trade is engaged by an occupier to work on premises, the occupier is not under a duty to give warning of a defect in the premises for tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind: Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 30 per Brennan and Dawson JJ.

[112]

Was the defendant aware, or ought the defendant to have been aware of the relevant defect? 208 It is clear that the defendant did not know of the existence of the defects which led to be fall of the verandah roof. In his evidence in chief he denied that he had noticed anything untoward about the verandah roof. He was not cross examined to suggest that he had in fact noticed something wrong with the roof. On the contrary, the tenor of the cross examination was to suggest to him that he had climbed on the roof (a fact which he denied) and that he had satisfied himself that the roof was stable enough to be walked on and could be used by the plaintiff (a fact which he also denied), and that he had made such a representation to the plaintiff (which was also denied). 209 As well, the nature of the defect, as Mr Nicholson's evidence showed, was entirely concealed. It was not detected, or even suspected by the plaintiff himself who conducted a careful visual examination of both the underside and the top of the verandah roof. 210 No doubt recognising this state of affairs, the plaintiff argued that the defendant ought to have known of the defect because there were circumstances which put him on notice of the fact of, or alternatively the likelihood of, such a defect. 211 The first circumstance relied upon was that the defendant had caused the pest report to be obtained at a time prior to any discussions with the plaintiff, and that he had read it and knew the content of it. 212 Although I have earlier found that the defendant did not receive the pest report or have any knowledge of the contents of it, other than what he was told by his wife, having regard to the detailed submissions by counsel for the plaintiff, it is appropriate that I consider the contents of it. 213 The pest report, which is Ex K, was prepared for Diamond Network Services by Mr Wayne Beecroft of Prompt Pest Inspection Services. It was prepared on 6 November 2002. The report indicated that there was no visual evidence of timber insect pest attack but noted that there was a restriction on the ability of the inspector to inspect all the areas of the house. That restriction included areas of the roof cavity where the report noted that there was no access to concealed rafters, joists and battens of the skillion/flat style roofing at the rear of the property. The report does not make any specific reference to the flat roofing above the verandah at the front of the property, but I see no reason why it would not have been obvious that there was no access by the inspector to that roof. A simple visual glance at the roof would indicate the difficulties of the inspector obtaining access. 214 The visual inspection of such roof timbers as were accessible did not reveal any evidence of active timber insect pests. The report noted that there was a high risk of concealed timber pest workings to roof timbers, no doubt because of the inability of the inspector to visualise the timbers, and be satisfied about their structural integrity. 215 As well, the report noted that by reference to the features of the under floor area, including the solid fill slab on the ground, that there was a risk that termites could enter the building via the foundations without being visually detected. However, the report noted that the cavity walls ought to be monitored for observation of such termite entry. 216 The report recommended regular monitoring for early detection of new or possibly existing termite entry at the front left hand corner of the house. 217 Importantly on p 5 of the report, there is noted that it is not a structural damage report and that it does not and cannot state the extent of any damage which it identifies. It, not unsurprisingly, comments that there might be damage that is hidden which the report does not record. 218 I am satisfied that there was nothing about this report which would have placed the defendant on notice of the defect which gave rise to the plaintiff's accident, nor is there anything in the report which would have placed the defendant on notice of a possibility that such defect may exist. The defect which was found to exist did not depend upon any infestation by any timber destroying pest. Mr Nicholson's evidence did not suggest that any part of the cause of the defect was past or present pest infestation. The pest report made no mention of the front verandah roof, nor of any specific concern about it or risk to it. 219 There was no specific recommendation in the pest report which, if attended to, would have resulted in the discovery of the defect which led to the plaintiff's fall. 220 Even if the defendant had read the contents of the pest report, or else they had otherwise come to his notice, then he would not have had any reason to know of, or even to suspect, the existence of the defect which gave rise to the plaintiff's accident. 221 The second circumstance relied upon by the plaintiff was that the defendant had caused NSC to obtain the building report from Choice Property Inspections (Ex J), and that he was given a copy of it and that he had read it. 222 I should first deal with an apparent anomaly with the exhibits. Exhibit B in the proceedings is the front cover sheet of the pre-purchase building report. It differs from the front sheet of Ex J in two respects. Firstly it is on different letterhead and secondly it contains a full photo of the house whereas in Ex J there is a space for the photo, but no photo. 223 Although there was no detailed evidence to explain the differences in the front cover sheet, I would be prepared to infer that the cover sheet Ex J was a copy of what was in effect the final draft of the report and it was faxed promptly to NSC on 6 December 2002, and that Ex B is the front page of the hard copy of the report which was then forwarded to NSC. In the end I do not think anything turns on this difference. 224 Again, although I have found that the defendant did not receive or read a copy of this report and did not know of the contents of it, before the plaintiff's accident, having regard to counsel's submissions, it is appropriate that I deal with it. 225 When commenting on the external part of the house the report notes at p 5 that "All external painted surfaces require ongoing maintenance/repainting to provide a durable finish and prevent premature deterioration." This seems to be nothing more than a comment that the house was in a state consistent with its age. 226 With respect to the front verandah, the following comment is made: "Minor cracking is evident to the concrete slab due to normal settlement conditions, which is consistent with this type of concrete slab."

[123]

Contributory Negligence 237 Although, having determined that I should dismiss the plaintiff's claim, it is not strictly necessary for me to decide any question of contributory negligence, it is convenient if I express my views on the issue. 238 The defendant pleads that the plaintiff failed to take proper care for his own safety by not undertaking a more careful inspection or investigation of the stability of the roof before walking on it. 239 On the issue of contributory negligence, careful attention needs to be paid to the provisions of s 5R of the Civil Liability Act 2002 ("CLA"). The standard of care required of the plaintiff is that of a reasonable person in his position: s 5R(2)(a) of the CLA. As well, the court is obliged to determine the matter on the basis of what the plaintiff knew or ought to have known at the time he suffered harm: s 5R(2)(b) of the CLA. 240 The question of whether a person has been guilty of contributory negligence is to be determined objectively. The defendant bears the burden of proving that the plaintiff has been negligent: Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 per McColl JA at [146]. 241 It is clear that the plaintiff did not know of the existence of the defect at the time of his accident. He was not alone in that position of ignorance. 242 As well, having regard to the fact that at the time of his accident, the total amount of time the plaintiff had spent at the Kings Langley house was quite short, there were no obvious signs of decay or deterioration in the condition of the house, and that when he initially climbed on the front verandah roof, he was unable to detect any instability in the roof, there was no reason for him to be on notice of the defect. In short, there is no basis for a finding that he ought to have known of the defect. 243 Once it is determined that the plaintiff had no actual or constructive knowledge of the defect or risk which led to his accident, I could not be satisfied that he has failed to act as a reasonable person would have done, if in his position. 244 Accordingly, I would not uphold the claim of the defendant that the plaintiff has been contributorily negligent with respect to the harm he has suffered.

[125]

Injuries 248 The plaintiff suffered a fracture of the left femur in the area near to the neck of the femur. This is described in technical terms as a subtrochanteric fracture of the left femur. 249 In order to deal with this fracture the plaintiff underwent three operations. The first was on 10 January 2003 which was an operation whilst he was an inpatient at Westmead Hospital for the open reduction of the fracture including an internal fixation using a proximal femoral nail. Due to difficulties with the union of the bone the plaintiff required further surgery which took place on 22 October 2003. This surgery was intended to address the non-union of the femur by means of bone grafting and re-fixation of the internal femoral nail. 250 Ultimately, in a third operation, the femoral nail was removed on 14 June 2007. 251 According to Dr Fox, the orthopaedic surgeon who undertook the surgery, when he last saw the plaintiff on 15 April 2008, the femoral facture had healed but there was remaining significant soft tissue injury which would continue to cause impaired strength to his left leg. This was accompanied by anterior knee pain which the doctor thought was consistent with the amount of loss of muscle function that the plaintiff had experienced. 252 As well as the injury to his left femur the plaintiff sustained compression fractures of the T12, L1 and L2 vertebrae in his spine. When last seen by Dr Max Ellis, a specialist surgeon in October 2009, it was noted that his thoracolumbar back pain persisted and that the pain was aggravated by bending, lifting, prolonged standing, sitting and walking. Upon examination he had a significantly reduced series of movements in his back and at the limits of movement he experienced pain. 253 Dr Ellis in his report of 29 October 2009 also commented on other injuries. It is most convenient to set out the summary of his conclusion which, with one exception, I accept. Dr Ellis said: "He suffered a fractured thoracolumbar spine with wedge compression fractures of T12, LI and L2 particularly affecting LI with a 50% wedging fracture. Consequent on this injury there has been spinal cord damage and he suffers chronic urinary retention, poor control and also urgency and poor control affecting his bowel function. Sexual impairment is severe with impotence consequent on neurological injury to the lower spinal cord at the level of the fracture site. There has been deterioration in autonomic effects of the spinal injury since my last assessment. He has had to undergo circumcision so that he can now perform self catheterisation for drainage of the urinary bladder which is not being performed adequately otherwise.

[141]

(e) On 4 September 2002, on examination by Dr Jonathon Wyatt (Ex 5) the plaintiff was noted as having limitation of movement in his cervical spine which I would conclude most likely related to his C7 wedge fracture. 255 In short the evidence only supports a finding that the C7 wedge fracture was caused by the motor vehicle accident of March 2001 and not the January 2003 accident in question in the proceedings. 256 Dr Ellis went on to assess the extent of the impairment of the plaintiff according to the Australian Medical Association Guidelines 5th Edition when compared to the whole person. He assessed that by October 2009 the plaintiff had achieved the maximal medical improvement likely and accordingly his whole person assessment amounted to 86 per cent. This represents a combination of his neck and back injuries, his urinary and ano-rectal function and all of his other disabilities. Because this includes the neck injury, I would need to reduce this degree of impairment. However, the plaintiff remains significantly impaired. 257 He formed the view that the plaintiff was unfit for work. That is a view which I accept, notwithstanding my findings on the existence of the neck injury before the subject accident. 258 Dr Julian Parmegiani, a specialist psychiatrist, examined the plaintiff in February 2008. He reached the following conclusions with respect to the plaintiff's psychiatric disabilities which he assessed as being equivalent to a whole persons psychiatric impairment of five per cent: "From a psychiatric perspective, Mr Gaskin initially developed Posttraumatic Stress Disorder . He experienced repetitive nightmares of the fall, and intrusive images during the day. He became increasingly anxious and depressed. Over 6-12 months, his Posttraumatic Stress Disorder gradually improved. His physical injuries however continued to have an adverse impact on his self-esteem, perpetuating anxiety and depression. He was unable to return to gainful employment, and he struggled to cope with pain and associated limitations.

[143]

Mr Gaskin self-medicated with alcohol to reduce anxiety, leading to a secondary diagnosis of Alcohol Abuse . … Mr Gaskin consumed six standard drinks of alcohol per day. This provided short-term relief of anxiety, but it exacerbated his psychological problems in the longer term. It could also lead to physical complications of alcohol abuse in the future." 259 Dr Parmegiani concluded that the plaintiff's prognosis from a psychiatric point of view would depend upon the course of his physical injuries and that if his physical injuries' symptoms continued he thought it would take the plaintiff another three to five years to adjust psychologically. He suggested further psychiatric treatment. 260 In summary, at the time of his accident the plaintiff was a 45 year old man who had a restricted capacity for work but who had determined to make attempts to go back to work in the belief that he could return to work in a fulltime capacity. That belief was untested because of the occurrence of the accident the subject of these proceedings. 261 In that accident he suffered significant physical injuries with accompanying psychiatric disorder. 262 He will never work again. He requires additional treatment and ongoing medication and regular consultations with his general practitioner in order to manage his injuries and disabilities. 263 On 19 May 2010, the plaintiff was assessed by Ms Debbie Muller, an occupational therapist. The report of that assessment was dated 2 June 2010 and served on 7 June 2010. Accordingly the defendant had little opportunity to obtain a report from a different occupational therapist and little time to prepare to meet some of the suggestions made by Ms Muller. I will bear that in mind when considering the opinions she advances. 264 As the report of Ms Muller is the latest report dealing with the plaintiff's injuries and difficulties I should note that it recorded complaints and difficulties consistent with the plaintiff's history to which I have earlier referred. 265 Ms Muller noted that the plaintiff required assistance with some of the aspects of his personal care, principally getting in and out of the shower to ensure that he did not slip and requiring some assistance to put on his shoes and socks. 266 Ms Muller noted that all of the personal care and assistance which was provided to the plaintiff was being provided by his wife. From this information, Ms Muller tallied the weekly total of the hours of assistance being provided to the plaintiff, at 26.5 hours. The plaintiff claims this total of assistance as gratuitous domestic assistance. 267 Clearly after his accident there has been some rearrangement, as between the plaintiff and his wife, of duties within the house with the result that the plaintiff was being provided with assistance by his wife, totalling approximately that recorded by Ms Muller. My task, however, is to determine the appropriate level of care which is both required and permitted by s 15 of the CLA. I will return to that assessment in due course but it is appropriate for me to note that it is not the equivalent of the exercise which Ms Muller undertook. 268 It is clear that around the house the plaintiff cannot perform any aspects of the domestic cleaning. He cannot perform those aspects including mopping, cleaning windows, bathrooms and toilets and he is unable to vacuum. Any activity that requires prolonged standing is limited. General home maintenance is beyond the capacity of the plaintiff and others do it. The plaintiff is unable to undertake any gardening or lawn mowing and cannot undertake any car or caravan maintenance activities.

[144]

Non Economic Loss 269 The plaintiff is now 52. In the ordinary course of events, he has a further 33 years of life expectancy. There is no reason to think that he will obtain any degree of improvement in his physical condition over that time. He faces a life of significant physical disability accompanied by significant pain which can be addressed only be regular intake of pain medication. He has been assessed as having a significant whole person impairment. 270 Prior to the accident, although he had an intermittent history of previous accidents, he was nevertheless generally an engaging man who was able to interact with his family and to enjoy a full and satisfying relationship with his wife and children. 271 Many of these things have been taken from him and permanently. 272 He has significant ongoing sexual dysfunction which is a matter particularly troubling to him and which he feels most keenly. His problems of incontinence of urine and faeces are a matter of ongoing concern and embarrassment. The fact that he has to wear incontinence pads or "nappies" as he called them, must be a most unpleasant experience. All of these things are related by the expert opinion to the injuries he sustained in the accident and he is entitled to be compensated for each of these matters. 273 However, it is appropriate to note that at the time of his accident he was suffering from a pre-existing condition of juvenile onset insulin dependent diabetes. 274 A number of the experts have commented that individuals suffering from diabetes of this kind for the length of period of time for which the plaintiff has suffered from diabetes, which was sometimes poorly controlled, would mean that he may well have suffered some of these problems in any event although it is unclear when. I will bear in mind the need to take account of the onset of diabetes caused conditions when considering the extent of the disabilities related to the accident. 275 I assess non economic loss at 60 per cent of a worst case which amounts to $284,000.

[145]

Economic Loss 276 As I have found earlier, the plaintiff had a restricted capacity for work at the time of his accident in January 2003. 277 He had ongoing problems with pain, he was receiving treatment for his depression and was undergoing further investigation to establish the extent of his cognitive deficits. As he went on in life, his condition of diabetes would have continued to have some impact upon his capacity for work. The evidence does not enable me to take it into account by way of a specific impact on his working capacity. No doubt from time to time it may have caused him to have time away from work but I doubt that would have amounted to very much. 278 The plaintiff gave evidence that he was carrying out two to three jobs per week when he was in full work. 279 The plaintiff had been self-employed for very many years. He was going back to work in January 2003 working for himself. In my opinion the evidence does not permit any conclusion different from the plaintiff's past intentions at the time he returned to work. The plaintiff was always going to be a self-employed roof painter and restorer. He may have employed another worker from time to time, most probably a member of his family. He was always going to remain a self employed tradesman. 280 An issues arises as to the value of his earning capacity at the time of his accident. 281 A letter dated 11 November 2008, which is part of Ex Y, from the Australian Taxation Office to plaintiff's solicitors, contained information to the effect that the plaintiff had not lodged tax returns for the years 1996 through to and including 1999 and 2001 through to and including 2008. However, the plaintiff's notice of assessment and income tax return for the year ended 30 June 2000 was available. 282 It is to be remembered that this is the year in which the plaintiff said he was working fulltime without any interruption by reason of injury, illness or any other cause. In the financial year ended 30 June 2000, the plaintiff's net income, that is after deduction of business expenses and income tax and Medicare levy was $383 per week. 283 The plaintiff was returning to work about two and a half years after this sum. It is reasonable to suppose that in that time had he been able to work the plaintiff's income would have increased by an amount which would be approximately equal to the change in the Consumer Price Index. In that two year period the Consumer Price Index for Sydney changed by about ten per cent. 284 It seems to me appropriate to fix the value of the plaintiff's earning capacity as at the date of his injury, 9 January 2003, at $420 per week net, upon the assumption that he was working fulltime and had a full earning capacity. 285 However, it would be an over compensation of the plaintiff to regard his earning capacity at that time as being in the full amount. That is because, as I have said earlier in this judgment, he had not fully recovered his entire earning capacity. And as well as the plaintiff said in evidence, he was returning to work and there would naturally be a lag time before his work built back up to a full capacity. 286 I think that the plaintiff would probably have got back to his full earning capacity but it would have taken him about 18 months or so. I base this on the fact that although he was continuing to obtain treatment from the Illawarra Brain Injury Service and his general practitioner, his condition had clearly improved enough for him subjectively to feel that he was able to return to work and for him to take steps to effect that return to work. 287 Accordingly, I think that in the first six months or so of his intended return to work whilst the plaintiff had a full earning capacity of $420 per week, it is likely that he would only have exercised one half of that capacity. For the period 10 January 2003 to 30 June 2003 (24 weeks) I would allow one half of the ordinary accumulation of wage loss. 288 For the 12 months from 1 July 2003 to 30 June 2004, assuming the plaintiff was not injured, I think he would have been working to about three quarters of his capacity having regard to his pre-existing conditions and the re-establishment of his business. I will allow three quarters of his economic loss for that period as being related to the accident. 289 I propose to set out in tabular form below my allowances for economic loss from the date of the accident to the date of this judgment. It will be observed that in each year I have made an allowance for an increase in the earning capacity which seems to me in all the circumstances to be reasonable and to approximate the increase in the Consumer Price Index for Sydney. There is necessarily some rounding of these figures. I would allow as a reasonable loss of earning capacity for this plaintiff the sum set out in the table below. Dates of Period Full Earning Capacity No of Wks Total $ 420 pw 24 wks $ 5,040 10/01/03 - 30/06/03 allow 1/2 01/07/03 - 30/06/04 $ 435 pw 52 wks $ 16,964 allow 3/4 01/07/04 - 30/06/05 $ 450 pw 52 wks $ 23,400 01/07/05 - 30/06/06 $ 470 pw 52 wks $ 24,440 01/07/06 - 30/06/07 $ 500 pw 52 wks $ 26,000 01/07/07 - 30/06/08 $ 525 pw 52 wks $ 27,300 01/07/08 - 30/06/09 $ 550 pw 52 wks $ 28,600 01/07/09 - 30/06/10 $ 580 pw 52 wks $ 30,160 $ 181,904

[152]

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 296 In order to make an award of damages for future economic loss, it is necessary for the plaintiff to satisfy me of his most likely future circumstances but for the injury. 297 It will be apparent from my earlier findings, and in particular the plaintiff's long history as a self employed tradesman engaged in roof painting, that I am satisfied that his most likely future circumstances, had the injury not occurred, would have been to continue working as a self employed roof painter. No other option was suggested in submissions by his counsel. On the evidence, no other option was open. 298 The plaintiff gave evidence, which I accept, that he would have continued to work had he not been injured, until he was physically unable to. He clearly enjoyed his work and I think on the basis of all of the evidence, he would have continued to work until he age of 67 which is mid-way between 65 and 70. 299 As I advert to above, in my view the sum of $580 net per week would represent a reasonable sum for his earning capacity. 300 However, in the future, dealing with the period of about 15 years from now, I need to have regard to the percentage possibility as to the likelihood of these future events occurring had the injury not happened. 301 In my opinion, the percentage possibility of these events occurring would have been in the order of 75 per cent. 302 Conventionally when addressing future economic loss, prior to the introduction of the CLA, courts made allowances for 15 per cent for adverse contingencies and vicissitudes of life. Since the introduction of the CLA, the appropriate place to make an allowance against future economic loss for such adverse contingencies and vicissitudes is in determining the percentage under s 13(2) of the CLA. 303 In this case, however, I think an allowance higher than the usual conventional figure is appropriate. I take into account that as the plaintiff aged his diabetic condition may well have had an effect upon his earning capacity. It is well known, and the medical evidence in this case suggests that patients who have diabetes of long standing develop health complications. It is hard to ignore the fact that the plaintiff was a regular visitor to his general practitioner for treatment to deal with his diabetic complications. These complications were not well managed by the plaintiff himself. 304 As well, the plaintiff was engaged in a manual task in the outdoors. There would always be a risk of injury, either through the ordinary undertaking of the manual work or because of the fact that the plaintiff worked at heights above the ground on roofs. For those reasons, there should be an increased allowance, somewhat above the usual adverse contingencies and vicissitudes of life. It is appropriate to make an allowance by way of a reduction of 25 per cent with respect to the plaintiff's economic future earning loss, or alternatively, the loss of his future earning capacity. 305 Hence, I regard the likelihood of the plaintiff having a full working career, had he not been injured, as 75%. 306 An amount of $580 per week for a period of 15 years on the 5% tables would total $366.734. This needs to be adjusted by the possibility factor of 75%. Ultimately the award of an appropriate amount for future economic loss is $275,050.

[154]

Future Out of Pocket Expenses 308 These claims, not all of which are admitted, fall into a number of different categories. The first category is claims for the cost of treatment and medication referrable to the plaintiff's erectile dysfunction. The evidence shows that the accident was a cause of this condition. However, according to Dr H M Lau, erectile dysfunction is also a well known complication of the plaintiff's long term diabetes. Dr Lau expressed the opinion that the injury may have brought forward the onset of erectile dysfunction: "… which is likely to develop in someone who has diabetes." 309 The plaintiff's claim is for treatment by way of Trimix injections at $130 per week for the balance of his life expectancy. I am not prepared to uphold this claim in its entirety. I would be prepared, taking a somewhat broad brush approach, to find that the accident brought forward the occurrence of this condition by about ten years. 310 I would therefore allow three years for the future of Trimix injections at $130 per week. The appropriate sum of the 5 per cent discount tables (multiplier 145.6) is $18,928. 311 I should note that although the evidence makes mention of the possibility of a penile prosthesis, as one potential treatment option, ultimately the plaintiff did not make any claim for the costs of such surgery. 312 The second category into which a claim for future expenses falls is a claim for future surgery. The plaintiff claims the cost of surgery for a hip replacement at some time in the future and also for surgery for an epigastric hernia repair. The defendant, in his final submissions, opposes any specific allowance for these amounts. 313 Dr Fox, the orthopaedic surgeon who treated the plaintiff, in his report of 15 April 2008, says that there is "… possibility a longer term need for hip surgery … were he to develop significant osteoarthritis of that hip." As at the time of his last examination, although there was evidence of early osteoarthritis formation in his hip, on serial films there had been no progression of the osteoarthritis. 314 In light of this non-progression and the most tentative way in which Dr Fox's opinion is expressed, I am not satisfied that this longer term possibility is of sufficient probability to warrant any allowance for hip replacement surgery. 315 The evidence about the plaintiff's need for an epigastric hernia repair is to be found only in the report of Dr Ellis who was not a treating doctor but one qualified for the purpose of the litigation. He is an expert surgeon. 316 The first mention of the development of an epigastric hernia is in Dr Ellis' report of 3 June 2008. There he says that chronic abdominal straining associated with bladder and bowel dysfunction resulted in the development of a hernia. At that time, he made no mention of the need for surgery. In his later report of 28 October 2009, he expressed the view that "the epigastric hernia is large and will eventually require repair." The word "eventually" was not further explored. The plaintiff gave no specific evidence of any pain or discomfort or other symptoms directly associated with the hernia. I accept that the hernia was caused by the plaintiff's injuries and disabilities consequent upon his accident. 317 The appropriate allowance for the cost of a hernia repair is $12,000. On the evidence, the operation will not be necessary for some years. The appropriate deferral period is five years, 5 per cent multiplier for which is 0.784. 318 I allow $9,408, being the product of the application of the deferral factor to $12,000. 319 The plaintiff claims treatment expenses for:

[160]

Domestic Assistance and Care - Past and Future 324 The plaintiff claims damages by way of a sum of money to compensate him for the gratuitous domestic assistance and care that has been provided to him by his wife and family members since the accident. 325 In order for the court to make any award by way damages for gratuitous attendant care services, it is necessary that careful attention be paid to the provisions of s 15 of the CLA. 326 As I noted above, there are aspects of the domestic tasks that the plaintiff is unable to carry out and for which assistance must be provided for him. As well, there are certain physical tasks for the plaintiff in the course of his ordinary activities of daily living for which he requires assistance. Getting in and out of the shower is something which requires assistance, although I suspect that with the provision of railings and the like this task will be easier for the plaintiff to undertake for himself. As well, on occasions when the plaintiff soils himself due to the inability to control his bowels his wife provides the necessary assistance in remaking the bed, cleaning the linen and his clothes and the like. 327 These are all indicative of a need which the plaintiff has which need has been created by the accident. 328 Section 15 of the CLA provides: "(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided; and (b) the need has arisen (or arose) solely because of the injury to which the damage is related; and (c) the services would not be (or would not have been) provided to the claimant but for the injury. 329 In addition to these requirements, unless these services reach a threshold of at least six hours per week continuing for a period of at least six consecutive months, no award is possible. 330 In the early stages after his accident, when the plaintiff's mobility was significantly restricted, the evidence suggests that he required assistance, effectively full time from his family members. 331 The services which are now provided by the plaintiff's wife, and from time to time by his daughter, of the kind described in Ms Muller's report and to which I have referred, would fall within the definition of gratuitous attendant services provided for in s 15(2) of the CLA. As well, I am satisfied that the services have been and are to be provided for at least six hours per week and for a period of at least six consecutive months. 332 I need, however, to be satisfied that the need for services has arisen solely because of the injuries to which the damages relate and that the services would not have been or be provided to the plaintiff but for the injury. 333 I have carefully considered the descriptions given in, and the conclusions reached by Ms Muller in her report. As I have indicated earlier, she has made an attempt to quantify the total hours engaged in all of the services provided to the plaintiff. 334 She has not engaged in the exercise required of a court by s 15 of the CLA. 335 Having regard to the terms of s 15, I conclude that the following allowance ought to be made for past domestic care:

Gaskin v Ollerenshaw

At a glance

Court

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Judgment (168 paragraphs)

Parties

Cases Cited (11)

Cited By (2)