Mackey v Hunter Valley Gardens Pty Ltd

CIRCUMSTANCES LEADING TO SLIP AND FALL

1. Notwithstanding the defendant's belated admission of breach of duty, it remains relevant to trace the events which led to the plaintiff's slip and fall. Specifically, they remain relevant to the defence of contributory negligence. Further, the defendant attacked the plaintiff's credit to a not insubstantial degree on the basis of his evidence as to the circumstances leading up to the fall; including, most notably, the extent to which he consumed alcohol on the day. As to this last aspect, the defendant did not plead the applicability of provisions in Part 6 of the Civil Liability Act 2002 (NSW) (the 'Act').

The plaintiff's evidence

1. The plaintiff gave evidence that he played golf on Friday (31 October) and the Saturday (1 November 2015). On the Saturday, he played at the Crowne Plaza golf course, a twenty minute drive away from Harrington's Hotel. Both days featured the same basic pattern: a game, followed by the presentation, followed by dinner.
2. On the day in question, the plaintiff said he had teed off early in the day, finishing his round about lunchtime (1pm). The weather during the round was overcast. Having eaten lunch (for about an hour, at which he had drunk some alcohol) at the golf course, he drove back to his hotel accommodation, being a 20 minute drive and showered. He attended a presentation which took up to an hour and a half or two hours. After this he and some other friends went to the TAB section of the hotel. He remained at the hotel, taking a nap that lasted three hours (in a room which he shared with Mr Head and Mr Bruce). After the nap he got showered and got ready for dinner, in the restaurant part of the hotel. He arrived for pre-dinner drinks at the pub at 6 PM, where he joined his friends. He said he had one or two light beers during the pre-dinner drinks. Dinner was around 7:00pm. It lasted about an hour and a half. He drank during his meal. He said that after he completed his meal he returned to his room for some rest.
3. At about 9 PM, one or both of his roommates, Mr Head or Mr Bruce, suggested they go and listen to a band that was playing on the outdoor area courtyard. From about 9 PM, he and his friends stood in an outdoor area which featured tables and umbrellas. The band was set up on the left of the grassy area and was performing on a mobile stage.
4. At some point the plaintiff says he left the area to go to the toilets. The plaintiff recalls the weather was slightly drizzly. At this point the band was still playing and he was watching it. He was 'bopping' around and watching the band. The friends had organized rounds of drinks, but aside from one shout in which he participated, he had not participated in successive rounds. He says that from about 9pm until the incident, he had had about 2 or 3 drinks. It was put to him in cross-examination that the plaintiff was deliberately diminishing the quantity of alcohol he had consumed. The plaintiff denied this.
5. As he was going to the toilet, the plaintiff recalls that he was walking back in the direction of the building from the tiled area and he slipped through or on the tiles. He says he felt his left leg slipped out (to the left) and that he fell on his right knee and backwards. He said that after he fell he knew that the tiles were wet: he observed that they were shiny and that after the fall, he had a wet backside. He said he felt a stinging pain in his left ankle, right knee and a strain in his left shoulder.
6. At about the time of the fall, the plaintiff recalled that about half a dozen of his group were in close proximity; some were talking; some were singing and dancing. He cannot recall anything more specific. It was put to him that just before the fall, he was dancing and being 'physical' with his friends. The plaintiff accepted this. It was then put that he had had more than 5 drinks that day. The plaintiff thought it was less, but in any event, if the period over which such drinking had occurred prior to the accident was roughly 12 hours, interspersed with rest, and food and the leisurely pursuit of gambling, 5 drinks was not, to my mind, an excessive amount to the plaintiff, who had quite a sturdy build. At any rate, it was put to the plaintiff that he was distracted by friends and not looking where he was going. The plaintiff denied this.
7. He says that virtually immediately, he was approached by two of the hotel's 'bouncers'. One of them said to him (whilst the plaintiff was lying on his back) "you're drunk! You're out of here". The defendant did not call any witness to testify as to observable inebriation of the plaintiff so if such observation was made, it is impossible to know whether the basis for (and accuracy) of the observation.
8. The plaintiff was escorted out of the premises. The plaintiff asked for help and was informed that if his friends helped him out, they would have to leave. The plaintiff recalled a friend, Craig (apparently Craig Ward) helping the plaintiff out. He then said that he sat down on the gutter, in front of the hotel, for about half an hour, feeling both embarrassed (for being kicked out) and pain (in his ankle). Asked why he did not ask the bouncer why he was being escorted, the plaintiff says he was not thinking about that. All he recalls saying to the bouncer is that he had "fucked my leg". This was about 12:30 AM on the Sunday morning. He was able to hobble the 50 metre distance to his room. He recalled taking some Panadol and sleeping.
9. Under cross-examination, the plaintiff accepted that he made no complaint about the incident to staff of the hotel before he left, either the night before or the morning, before check-out. An email of an internal investigation prepared by the defendant the next month indicated that there had been no complaint and no employee had reported it. The hotel's security camera equipment did not allow footage to be retrieved.
10. The next day the plaintiff was driven by Mr Head back to Sydney. That day he said he felt his ankle throbbing (which he rated 9 on a scale of 10). That day he was at home with his wife and family. He iced his leg, strapped it and elevated it. He did not however, seek medical treatment that day.

Mr Head

1. Mr Head was a long-standing friend of the plaintiff. He is also a regular golfing buddy with the plaintiff; playing about 18 games per year with him. His account was broadly corroborative of the plaintiff's account. For example, he corroborated the plaintiff's evidence of taking a nap after dinner. More importantly, in view of the line of attack advanced on behalf of the defendant, Mr Head said that the plaintiff had only had a couple of drinks after the group went to watch the band. Mr Head was adamant that the plaintiff was not drunk ("I know when Jason's drunk"). Most importantly, he recalls seeing the plaintiff walking across the tile pavers and slipping over. He himself was positioned about 10 m away. This occurred at a time where there was a slight sprinkle of rain. The next day, when he was about to drive the plaintiff back to Sydney, Mr Head noticed that his ankle had dramatically swollen up.
2. Mr Head's evidence was scarcely challenged. He accepted that he had discussed what happened that night with the plaintiff but had not discussed how the plaintiff felt. Since the accident he had (as one might expect from a friend) inquired into the nature and extent of the plaintiff's damage. Mr Head gave his evidence at a time of some serious personal difficulty to him.

Mr Bruce

1. Mr Bruce had known the plaintiff for 18 years and was a regular golfing partner. With Mr Head, he shared the same room as the plaintiff at the defendant's premises on the weekend in question. Mr Bruce gave evidence that after his golf game finished at 12:30 PM on the Saturday (after which he had a light lunch at the "halfway house") he went to the presentation (in the President's room) at about 1 PM. The presentation lasted for about an hour. Mr Bruce went back to his room, then he went to the bar area for about two hours, to drink and do some betting. Mr Bruce said that the plaintiff was not in attendance. When he briefly returned to his room, he recalled that the plaintiff was asleep, before going back to the TAB area until about 6pm.
2. He next saw the plaintiff shortly before 6 PM at a meeting place. The plaintiff appeared to be fine. The groups had dinner from 7 PM. Mr Bruce was asked about the band playing at the back of the premises. He said that he and others were standing in the courtyard area. The group of the musketeers were unsurprisingly separated into smaller groups, at this point Mr Bruce and (according to Mr Bruce's evidence) Mr Head were in a different group to the plaintiff. Mr Bruce said that he was about 2 m away when he saw Mr Mackey moving away from the group that he was in and lost his footing.
3. When asked in cross-examination about the weather, Mr Bruce said there was light rain throughout the night. He also said the tiles where the plaintiff slipped were wet.
4. After the fall, Mr Bruce said he ran over to the plaintiff (who had screamed out after the fall). He saw him favouring his ankle. He heard a security guard, with reference to the plaintiff, saying that he had "had enough" (indicating his belief about the plaintiff's drinking).

Prior to the accident

1. So far as it is material, the plaintiff's prior history included his having had an X-ray of his left shoulder in about August 2014, for left shoulder pain. This found tender medial border of scapula at the middle position (T5/T6 level). This was the subject of the plaintiff's complaint to Dr Patroulias at about that time.

Plaintiff's evidence

1. As he was hobbling to his room after the fall, at about 12:30am, the plaintiff said he felt pain in his (left) ankle. He said he did not feel pain in the right knee. He took a Panadol then went to sleep. When he was driven back to Sydney on 1 November, the plaintiff said he felt throbbing pain in the left ankle: a 9 out of a scale of 10.
2. When he returned home that day, he iced his leg, strapped it and elevated it. Under cross-examination, he said he did not seek out a medical centre that same day since he thought he had merely sprained his ankle.
3. On Monday, 2 November, the plaintiff went to the Ingleburn Medical Centre and had his left ankle x-rayed.
4. When he gave evidence, the plaintiff said he saw Dr Chandra Dave on 5 November. He had not gone to work before seeing him. He was not able to walk. A cast was put on his foot to create a 'moon boot'. The plaintiff says he was told to put the moon boot on for 2 or 3 months. The plaintiff accepted, when he was cross-examined, that he did not complain to Dr Dave about any pain in his right knee; or about his left shoulder. This remained the position when he saw Dr Dave on 19 November 2015.
5. The plaintiff said he felt unstable wearing this boot: he could not climb the stairs, shower properly or walk, unassisted.
6. The plaintiff accepted, when cross-examined, that when he presented to Dr Perveen in early 2015, he made no reference to any injury to his right knee or left shoulder.
7. The plaintiff accepted that after he had his x-ray of his left ankle on 25 January 2016 he had not seen a doctor about his ankle until he saw Dr Lee exactly one year later, on 25 January 2017.
8. The plaintiff accepted, under cross-examination, that when he saw Dr Lee in January 2017, he had not complained about any shoulder problem; although he said he was not there to see Dr Lee for that purpose. The purpose for him to see Dr Lee was his ankle. I did not find this distinction convincing.
9. The plaintiff says that from March 2016 to June 2017 his ankle was still sore. Although he was taking anti-inflammatories he was suffering sporadic pain. His knee was troubling him from time to time. It had an incision in his knee (from circumstances unrelated to the accident) and this made him feel better.

Mrs Mackey's evidence

1. The plaintiff's wife gave some brief evidence on this topic, which largely corroborated her husband's evidence about his injuries and disabilities following the accident.
2. When she first saw the plaintiff, she saw that he had a very swollen ankle. She confirmed that the plaintiff spent the Sunday, after his return from the Hunter Valley, on the lounge, with icepacks and medication. She recalled his wearing his moon boot for a longer period of time than the doctor had recommended.
3. She said that the present position was that the plaintiff cannot stand for too long and cannot walk too far. If he does do something, he would lay on the lounge, rest his leg and take painkillers. She thought that this had happened a couple of times a week.
4. She considered that he first started to complain about pain in his right knee about 6 months after the accident.

Medical evidence

1. On 2 November 2015 the plaintiff saw Dr Shahnaz Perveen, a physician. Dr Perveen found, on examination, that the plaintiff was able to walk with a limp, had tenderness, swelling, or bruising on and below lateral malleolus and tender dorsum of the left ankle. His ankle movement was restricted.
2. Dr Perveen wrote a referral for the plaintiff to see Dr Chandra Dave, an orthopaedic surgeon, for his opinion regarding the plaintiff's left fibular oblique fracture.
3. On 2 November 2015 Dr Sacks prepared a radiologist's report on an x-ray taken of the plaintiff's left ankle at the Ingleburn Imaging Centre. It showed a fracture of the lateral malleolus with an oblique fracture extending to the level of the ankle mortise obliquely superiorly, laterally and posteriorly.
4. Dr Dave saw the plaintiff on 5 November 2015. He diagnosed a 'Type-B' ankle fracture. He suggested treatment was that the plaintiff use an Air cast boot. Upon examination, the plaintiff had minor tenderness medially, but most of his pain was laterally. Dr Dave explained that the Air cast boot was organised as the plaintiff was not that keen on surgery and because he needed to continue working. He wanted to see the plaintiff in a fortnight's time with an x-ray.
5. On 19 November 2015, Dr Varnava (Macarthur Diagnostic Imaging) examined the plaintiff's left ankle x-ray. The doctor reported a comminuted fracture through the distal fibula, with minimal displacement. Alignment was unchanged from the previous study on 2 November. Bony union was far from complete. The ankle mortise was intact.
6. The same day, Dr Chandra Dave, an orthopaedic surgeon, sent a report to Dr Ahmed. He referred to the plaintiff's fractured ankle on the left side with a minimally displaced fibula fracture and said that the problem had been managed with a CAM boot and an air cast. Dr Dave reported that his ankle mortise was intact and his fracture consolidated. He had advised the plaintiff to start (partially) weight bearing, but to maintain the CAM boot for the next three weeks; at which point he would need reassessment in order to determine whether to discard the CAM boot and formally mobilise the ankle
7. On 25 January 2016, Dr Critoph examined the plaintiff's left ankle x-ray. He found a 1 mm separate bony body of the medial aspect of the talus at the site of the insertion of the medial collateral ligament. That was consistent with a small avulsion. The spiral fracture of the distal fibula, just above the ankle, remained in an excellent position but was ununited.
8. On 15 August 2016, Dr Sacks, the radiologist, did a CT scan of the plaintiff's right knee; this being ordered by Dr Khatun. Dr Sacks found calcified density medial to the patella. This might have represented dystrophic calcification in relation to the patellar retinaculum.
9. On 17 August 2016 Dr Khatun wrote to Dr Dave, seeking a review of the plaintiff's "chronic" right knee pain. Two days before, the plaintiff had attended Ingleburn Medical Centre when he had complained of sharp the pain.
10. On 29 August 2016 the plaintiff saw Dr Dave again. The plaintiff had reported pain adjacent to his patella, that is, the right kneecap. A CT scan showed loose bodies and it appeared that the plaintiff had infrapatellar bursitis which was inflamed and causing him symptoms. Dr Dave arranged for removal of part of the bursa at Campbelltown Private Hospital.
11. This removal occurred on 30 August 2016, apparently by Dr Chandrakant. That day the plaintiff signed a patient health history upon which he was closely cross-examined. Amongst other questions relating to his general medical history, the plaintiff indicated "no" on the question whether he had anxiety, depression or mental illness. In relation to his then current medications, the only (non-prescribed) medication he identified was fish oil (turmeric); implying that there were no other medications he was taking. He indicated the answer was "no" when asked whether he was taking any anti-inflammatory drugs. Further, when asked whether, upon discharge, he would require assistance with daily activities or had any other concerns regarding how he would manage at home after his discharge, the plaintiff answered no in each case. This information was provided 10 months after the incident the subject of this proceeding.
12. A histopathology report of 3 September 2016, repaired by Dr Anita Muljono diagnosed the right infrapatellar bursa, consistent with a neuroma.
13. On 12 September 2016 Dr Dave reported (to Dr Perveen) that an excision of the infrapatellar bursa had occurred that day. On examination the plaintiff reported as being very comfortable with no neurovascular deficits.

Plaintiff's expert- Dr Lee

1. The plaintiff principally relied upon two reports of Dr Kai Lee, an orthopaedic surgeon. Dr Lee examined the plaintiff twice, once on 25 January 2017; and, secondly on 17 August 2018
2. When the plaintiff saw him on 25 January 2017, the plaintiff reported that his left ankle was still painful and sometimes felt unstable and was also swollen often. His knee was now 'OK'. Upon examination, Dr Lee found that movement of the knee was full with no laxity nor any local tenderness. There was still some diffuse tenderness in the left ankle. Dr Lee concluded that the plaintiff continued to experience pain and stiffness in his left ankle. Dr Lee's prognosis was "fair": although the plaintiff's knee had improved, he still had some pain and stiffness in the ankle; which limited him from climbing up ladders. On the other hand, the pain should not be that bad so as to limit his general mobility.
3. Under cross-examination, the plaintiff agreed that it was when he saw Dr Lee for the first time in January 2017 (about 15 months after the fall) that he had mentioned that his knee had been swollen as a result of the subject incident. By that stage, he admitted, he had played golf. It was put to him that at this time, he was exaggerating that he suffered a right knee injury. The plaintiff disagreed with this. He accepted that he had not mentioned to Dr Lee any shoulder injury. It was only the ankle that was bothering him.
4. When he saw the plaintiff again on 17 August 2018, the plaintiff reported to Dr Lee that he still felt that the left ankle was painful and sometimes unstable. It would also get swollen often. The right knee was ok. He also reported that his left shoulder had become painful lately; although could not explain the cause of that problem.
5. On examination there was normal alignment in both ankles; but some diffuse tenderness in the left ankle. There was no particular concern about the right knee. There was also tenderness at the anterolateral aspect of the left shoulder.
6. Dr Lee's opinion was that as a result of the accident he injured his left ankle and contused the right knee. He developed pain and stiffness in the left shoulder and may have injured the left shoulder during the fall (emphasis supplied). In terms of his continuing disabilities, Dr Lee says the plaintiff continues to have pain and stiffness in the left ankle and had developed pain in his left shoulder and this was bothering him the most. Dr Lee's prognosis was "fair": the plaintiff's knee had improved and he still had some pain and stiffness in the ankle. Although that limited him from climbing up ladders, the pain should not be so bad as to limit his general mobility. But the plaintiff's shoulder was affecting him as well.

Defendant's expert - Dr Harvey

1. The plaintiff saw Dr F J Harvey, an orthopaedic surgeon, at the defendant's request on 23 April 2018. He gave Dr Harvey a history of the incident which was generally consistent with past histories.
2. When he saw Dr Harvey the plaintiff complained of intermittent pain in his ankle: this was over the outside of the joint and he also noticed pain on extension of the ankle: he tended to receive pain when he was on ladders, taking the weight on the forefoot. He also experienced some pain on squatting, walking up inclines and walking over uneven ground. The plaintiff complained that his ankle occasionally swelled and that he has some difficulty running. He did not, however, complain about his knee.
3. The plaintiff described limitations in his leisure activity as a result of these disabilities as being that he had stopped jogging (with his wife). He played golf only once or twice a month - before the accident he was playing regularly every two weeks.
4. Dr Harvey examined the plaintiff's left ankle. There was no swelling or deformity. The plaintiff was capable of walking without a limp and could walk on the toes and heels. Dr Harvey also examined the plaintiff's left knee. Movement of both knees was quite full and painless. Dr Harvey' diagnosis was that the plaintiff had sustained an undisplaced fracture of the distal end of the left fibula. He accepted that this fracture could have been caused by the fall as had been ascribed to him by the plaintiff.
5. Dr Harvey's diagnosis was that the plaintiff has suffered a fracture of the lateral malleolus of the right ankle. The fracture in the left ankle could have been caused by the fall he described. His problem concerning his right knee in August 2016 was, in Dr Harvey's view, unrelated to the fall (but consistent with work-related kneeling on his knee).
6. Dr Harvey's prognosis was that the condition of the plaintiff's ankle was now "static" and there was unlikely to be any significant change in the future. Because of the plaintiff's BMI of 31, the plaintiff did come into the obese range which made him more susceptible to developing osteoarthritic change in the weight-bearing joints of the lower limbs.
7. In passing, Dr Harvey commented upon the plaintiff's reference pain in his right knee. He noted that the plaintiff had no longer made any complaint in relation to his right knee.
8. Dr Harvey did not regard the plaintiff as requiring any continuing treatment, surgery or medication as a consequence of his injury sustained on 1 November 2015.

Joint expert report of Dr Lee and Dr Harvey

1. The orthopaedic surgeons had a joint telephone conference on 31 October 2018. There was much common ground between them. Both agreed that:

• the plaintiff suffered an undisplaced fracture of the lateral malleolus of the left ankle in consequence of the fall;
• it was unlikely that the fracture would lead to post-traumatic arthritis, but it was possible that there would be some persistent loss of function in the ankle;
• the plaintiff does have some residual disability as a result of the fracture; although they did not anticipate that the disability will increase in the future.

1. They disagreed as to the cause of the injury to the right knee. Both surgeons adhered to the evidence in their primary reports: ie Dr Lee believed that the plaintiff had suffered an injury to the right knee as a result of the accident whereas Dr Harvey did not. I note however, that Dr Lee somewhat qualified this view when he later said, in the joint expert report (when asked to explain why, or how the right knee could have been caused by the fall), that he was relying upon the plaintiff's history that he had a direct trauma to the right knee. Somewhat critically, Dr Lee said that it was "quite possible" that the direct trauma to the tip of the patella resulted in the bursitis which required the surgery later in August 2016.
2. In relation to the right knee, both doctors noted that the plaintiff no longer made any complaint about his right knee.

Other

1. On 19 June 2017, Dr Ahmed wrote a referral for the plaintiff to see Dr Simon Greenburg, an ENT surgeon, for his opinion and management arising from the plaintiff's complaint of a chronic right and left ear discomfort and fatigue. This was not long after the plaintiff's mental health issues, addressed below, had occurred.
2. On 21 June 2017 Dr Ahmed prescribed ear drops for him.
3. In October 2017 the plaintiff received treatment from Dr Greenburg, concerning the plaintiff's problems with his ears. Dr Greenburg removed debris that was deep within the UK now on the right side. The plaintiff had indicated to him that nasal sprays had been of little benefit and because of the long-standing nature of the problem, he wanted to know how his breathing could be improved. Dr Greenburg said he thought that a septoplasty and inferior turbinate reduction would be beneficial.
4. I refer to the plaintiff's ear complaint as this is relevant to his claim of mental harm to which I now turn.

Plaintiff's evidence

1. The plaintiff was married in 1996. Two years later his wife gave birth to his first child, Jayden. Jayden is now in the same trade as his father. In 1999 his wife gave birth to the couple's second child, Rhiannen.
2. During the period in which he was wearing a moon boot, the plaintiff says that his emotions were "all over the place." He felt restricted and incapable of working. This he took personally: he felt he was unable to provide for his family. He was becoming anxious about his business he was receiving bills and noticed that his business was declining. This financial consequence made him feel angry and upset.
3. It also had a significant domestic consequence in terms of the plaintiff's relationship to his family. The plaintiff was looking towards his son Jayden, who by this time was an apprentice, to help him with his business. Before the accident, his son had helped him but afterwards the plaintiff began to impose upon his son to work night shifts (from 5pm to 2am) for the plaintiff's benefit in addition to his son's own activities. This unsurprisingly led to tension with his son. The son was prepared to put up with this while the plaintiff was wearing his man boot. But after the man boot came off so did the son stop working for him. The plaintiff said he felt dejected by this.
4. By early 2016 the plaintiff says he felt concerned that he would have to close the business.
5. By June 2017 the plaintiff referred to there being many arguments at home. He moved into the factory and on one awful occasion, he tried to take his own life. He was depressed about his business, the prospect of losing his wife and his family.
6. On 10 June 2017, the plaintiff was admitted to Campbelltown Hospital and seen by a psychologist. He complained of chronic ear discomfort and headaches.
7. What made things worse, the plaintiff indicated, was that prior to the accident he was developing what he called a 'revolutionary' solar-powered product to ventilate factories. This was what was called the 'Solstar' product, which he had designed (and had thought about since late 1998) and he started to market it in the summer of 2015.
8. By June 2017 the plaintiff said he thought that he would have to sell his business. This made him feel dejected and worthless. At about that time, one day he was wandering the street in Ingleburn when he was grabbed by the police. An ambulance took him to Campbelltown Hospital where he stayed for two days. On 15 June 2017 he consulted with Dr Tamrakar, and was prescribed Zoloft.
9. Under cross-examination, the plaintiff accepted that in about the middle of 2017 he was suffering from other ailments that were not related to the incident. This included a middle ear infection. I have referred to the treatment of this problem (at paragraph 68-70) above. This problem had not suddenly emerged: the plaintiff said that he had been suffering from the issue for three months and at one point had got antibiotics.
10. The plaintiff also accepted that about one month before the occasion where he tried to take his life, he had taken a three day cruise with his wife along the east coast, coinciding with the State of Origin Rugby League series. At least that point, he felt (mentally) okay. Since the incident from 1 November 2015 the plaintiff it also had a family holiday near the beach in Jervis Bay.
11. It was about 10 June 2017, the plaintiff said under cross-examination, that he had a fight with his son and his wife. The problem appeared to be that, to the plaintiff's mind, the son was not doing enough around the place and his wife was not setting appropriate boundaries. The plaintiff explained that he left home and stayed at his factory since he did not want to generate a domestic environment for his children where there was ongoing fighting.

Mrs Mackey's evidence

1. The plaintiff's wife also gave evidence which generally corroborated the plaintiff's evidence of his depression and, in particular, the sources of his depression. She said that prior to the accident, he loved his business and loved working in it; often doing a lot of late hours.
2. She said that when he had his moon boot on, his mood was "not too bad".
3. She said that after the plaintiff had removed his moon boot, he was drinking and smoking a lot more, and put on weight. Arguments were becoming more frequent and she felt that she was 'walking on egg shells'. She identified the source of arguments being the deteriorating relationship between her husband and her son, Jayden and the sense that he felt he was not the breadwinner. Her husband was putting pressure on her son to do more domestic work, and was pressuring the son to assist with the plaintiff's business. This was at a time when Jayden was already working very hard as an apprentice and, when he was not working, he wanted to socialise with his friends.
4. She said that coming up to June 2017 there were arguments in the home, the plaintiff was drinking more and she again, felt as though she was walking on egg shells. She saw her role as being to try to keep the peace between her husband and her son. In the week before he was admitted to hospital she said that she and the plaintiff had reached a mutual decision that he would leave (I understood) temporarily.
5. Prior to the accident in question, she said that they had no such fights.

Campbelltown Hospital records & other records concerning the plaintiff's suicidal ideation

1. Before his admission to hospital to Campbelltown Hospital on 14 June 2017 (he had been compulsorily admitted under s 22 of the Mental Health Act 2007), it was put to the plaintiff that he had been found by the police intoxicated. He disputed that characterisation.
2. A hospital emergency department clinical record (prepared at 8:57pm) on 14 June 2017 contained the following notation: "BIBA - HX DEPRESSION, ONGOING LAST 4 YEARS, NIL TX. RECENT FAMILY ISSUES, WIFE FOUND NOOSE IN PTS WORKSHOP, UNABLE TO FIND PT DURING THE DAY, FOUND TONIGHT AT PUB, INTOXICATED, VOLUNTARY".
3. Clinical notes at the hospital (at 11:10pm) on 14 June 2017 recorded that the plaintiff had been found at a pub and had stated that he plans to hang himself, in preparation he had cut his hair and picked out an outfit so that he could look nice. Very early (12:25am) the next morning, the notes record that the plaintiff's wife had indicated that the plaintiff had bilateral ear infection, and intermittent skin irritation.
4. An admission summary taken (by a trainee specialist) at the hospital on 15 June 2017 recorded the information that the plaintiff provided on the date of admission. It said that the plaintiff had planned to hang himself with a noose that day. This was due to multiple recent stressors, featuring: a breakdown in relationship with his 19-year-old son (the plaintiff complained about a lack of respect, frequent arguments and the son not doing any house chores), being asked to move the family caravan to a new location from the current park; work being slow not and not being paid by multiple clients. The plaintiff informed the hospital that, in retrospect, he had some depression over the last several years and had admitted to previous suicidal thoughts, only not as intense as they were on the date he was admitted.
5. A registered nurse (Ms Pauline Sabellano) recorded that the arguments in the home earlier that month had centred around the son (not the daughter). The plaintiff had informed her that over the past three months he had been suffering from a bilateral middle ear infection; over the last week flu symptoms and that these matters had reduced his patience. He remarked to the nurse that being physically unwell, on top of stress, had caused him to be low in mood. (He did not specifically identify a cause, or causes, of this stress he had identified). He denied (to the nurse) any current suicidal ideation, but admitted being low in mood: this, he felt, was due to his current situation with family, work and physical illness.
6. The final report issued by the hospital, at 10am on 15 June 2017, prepared by Dr Tamrakar, and with the input from the plaintiff's wife, summarised the position as follows: "46 yrs male, works in his own mechanical factory, lives with wife and two children. He presented with suicidal ideation, in the context of opposition from the son, middle ear infection, flu, moderate excessive drinking of alcohol and eczema/he has history of untreated depression for a few years and never been treated with antidepressants. There is a family history of depression - his brother had suicidal attempt, now on treatment. His uncle had died of suicide. He has suicidal ideation one year back. He reports happy to be alive now, and denies further thoughts of suicide and aggression. He is ambivalent about medication and psychotherapies. Said he will take them."
7. On 19 June 2017 the plaintiff consulted Dr Mohammed Ahmed in relation to depression. Dr Ahmed provided a mental health plan. Dr Ahmed reported the plaintiff's history of work-related stress with problems with his 19-year-old son and a fight on 10 June resulting in his admission to hospital. He also reported that the plaintiff was drinking four schooners each day. On examination, Dr Ahmed considered that the plaintiff appeared stressed and anxious. A provisional diagnosis was given of depression. Dr Ahmed suggested he take 100 mg of Zoloft, daily and recommended the intervention of a psychologist and psychiatrist.
8. In cross-examination the plaintiff accepted that he had been referred to a psychologist in Campbelltown by the name "Neil" (surname not identified). He saw him on three occasions might the plaintiff stopped seeing him, as they were 'at loggerheads'. I infer that the plaintiff saw no further utility from this form of treatment.

Dr Kaplan

1. Over the defendant's objection, I admitted a report of Dr Robert Kaplan, a forensic psychiatrist. He is affiliated with the Graduate School of Medicine in the University of Wollongong. Dr Kaplan saw the plaintiff on 18 September 2018; being nearly 3 years after the incident.
2. Dr Kaplan took a history from the plaintiff as to what occurred on Saturday, 31 October 2015 and in the early morning of Sunday, 1 November 2015. This included the plaintiff informing him that his mood had become depressed after the incident; on the basis that his plans to establish and promote the sale of his proposed solar ventilation system were interrupted and is business debts were starting to escalate. Related to this was the breakdown in the relationship with his son and related arguments with his wife. The plaintiff informed him, consistently with what he had informed the Court, that his mood had become sombre; that he had feelings of guilt and failure since he could not work successfully and provide for his family. The plaintiff had informed him of his suicidal ideation in June 2017 and his subsequent visit to the psychologist, 'Neil', for three visits and is taking Zoloft medication. The plaintiff felt that he was being over-sedated.
3. At the time he saw Dr Kaplan, in September 2018, the plaintiff had reported some improvement in his ankle; but referred to some left shoulder pain. The plaintiff reported to him continuing problems with his family: he was concerned that his son had lost respect for him but noted that although he continued to have arguments, he was getting on well with his daughter and wife.
4. The account that Dr Kaplan gave of the history provided to him by the plaintiff was generally consistent with the evidence gave to the Court; at least in relation to his evidence of his mental condition. Dr Kaplan also took a past history, well before the incident in question.
5. After having taken this history, Dr Kaplan examined him. There was a question and answer session and Dr Kaplan deduced that the plaintiff's mood was both introspective and dejected.
6. Dr Kaplan was supplied with the second report from Dr Lee and medical file notes that had been referred to the psychologist and, it appears, notes related to his admission to Campbelltown Hospital. Dr Kaplan also referred to a report by Adamson Associates (which, I was informed, was a misdescription of the plaintiff's expert liability report ( Ex PX5)).
7. It has assessment, Dr Kaplan determined that the plaintiff was dejected, frustrated introspective and anxious. Accordingly, he diagnosed depression. He also expressly linked that diagnosis to the plaintiff's physical injuries which, he said, had led to the plaintiff's problems at work, financial difficulties, the inability to promote a new project work and tensions within the family. Although there were a range of contributing factors to the plaintiff's psychological state, the injury from the fall was a material contributing factor.
8. In terms of his prognosis, Dr Kaplan considered that this would depend on treatment. If his physical injuries, and work situation, worsened, his depression was likely to escalate. (I note that on the basis of the orthopaedics experts' joint report, it is unlikely that the physical injuries of the left ankle and right knee are likely to deteriorate).
9. Dr Kaplan suggested that there was a requirement for the plaintiff to see a psychiatrist for antidepressants and he should attend a psychologist for 6 to 8 sessions. (I note, also that the plaintiff ceased seeing 'Neil" after 3 sessions).
10. Dr Kaplan was not required to attend for cross-examination.
11. The defendant had arranged for the plaintiff to see its own psychiatrist, Dr Lewin, on 23 October 2018. It was not suggested that this examination did not proceed. I infer that Dr Lewin not only saw the plaintiff on that day, but also had read, or at least had access to, Dr Kaplan's report so as to properly conduct that examination and prepare the responsive report for which he was engaged.

Plaintiff's evidence

1. The plaintiff was born on 23 July 1970. He finished school at year 10, with his school certificate at Fairvale High School. He undertook a TAFE course as an electrical fitter mechanic. Whilst completing that course he worked as an electrical mechanic at Fairfield Council. There he was employed for a period of between six months in the year before he was made redundant.
2. He worked for a short period with Robert Miller Electrical, wiring cottages. After a brief (six-month) period of self-employment in which he acted as a subbie, installing fans, he commenced employment with the entity 'Ductline' in sales and as a technician. He left the company in 1995 for a period of about seven years he became employed with another entity, 'Airflow Fans', as its general manager
3. In 2002 he set up his own business, which he called 'Belfair Fans', at Ingleburn. He continues to run that business. When he gave evidence that the plaintiff explained that for the first six months, he and his wife did the work (the wife doing the bookkeeping one day a week). As business developed he put on a staff member. He said that prior to the date of the accident he quoted jobs engaged in manufacturing and installation activity. His work activity included site visits where he calculated for himself certain measurements. In a typical week he would go on site to provide quotes three times a week. He worked in the Sydney basin. He explained that he manufactured fans. This involved, amongst other things, fabricating galvanised steel. There were a number of phases to this what the plaintiff described as using a guillotine, notching and folding the steel. Photographs were tendered which showed the equipment by which the plaintiff engage in these activities. Most of it involved his use of one or both of his feet. These activities were undertaken in order to him to construct mainly roof fans. The plaintiff said that after fabricating the steel, the cost of a finished unit might be about $300, and he would sell it for around the $900 mark (T 20-21).
4. The way in which the plaintiff made his money was not only the price from the products and the process of manufacture but also the installation. After having fabricated the machines. He would then arrange for the installation. Very often this involved him going to the customer's premises. He estimated that a bit less than half of the fans he had manufactured were installed by him.
5. Under cross-examination, the plaintiff said that by the time he commenced business on his own account, his expertise had spanned manufacture of the products, sales and installation. The manufacturing and installation aspects plainly relied upon his physical labour. Not long after he commenced his business, he had employed staff to help with the manufacturing and installation sides to the business, but this had stopped about 2 years prior to the accident.

Consequences of the accident

1. When giving evidence in chief, the plaintiff said that he did "limited" work for the two or three month period that his left foot was in a moon boot: it was just quoting and outsourcing. By outsourcing, he meant buying opposition products and reselling. The plaintiff said that as a result, he had less margin and less sales. He was incapable of doing work in his factory premises. He was basically doing the paperwork side of the business.
2. The plaintiff said that he "took hard" the limitation in his ability to work: he was concerned about not being able to provide for his family and even that he might lose his business, because of the bills that were amassing.
3. From about March 2016, the plaintiff's factory was starting to become untidy. The plaintiff was continuing to outsource product that he had previously made: this involved him going onto the web and finding suppliers from Melbourne and 'rebadging' their units
4. He felt incapable of doing installations. On one occasion he actually fell off a ladder, resulting in a shoulder injury after his left leg/ankle had given way. This meant that in order to assist his clients with installation, he had to get contractors. This continued to the trial.
5. Nearly 3 ½ years later, at the trial, the plaintiff said that his left ankle was still sore. It was only occasionally that he would get up on the roofs probably once a month and it was only a very limited occasions that he would install any of the product that he manufactured. This depended on whether he could get access to a roof and everything could get lifted onto the roof. If he was unable to do it himself, he would have to get a roofer, 'Perry's, to install the product. According to his calculations, this might mean that he would lose $1,000 (8 units for $8,000 in the last week) as a result of his inability to install. A typical installation might take a couple of hours. (T 47-48).
6. He also said that his aspiration was to use the new solar product that he had developed to replace the traditional 'whirly bird' technology in place. There was very little before me to indicate the likely success of that product.

Mrs Mackey

1. Mrs Mackey corroborated some of the things the plaintiff said. She said that whilst the plaintiff had his moon boot on, he was getting upset with himself about his inability "to do anything". She said she felt that she was walking on eggshells - that the plaintiff would "snap at the drop of a hat", and commented on the fighting at home with their son.
2. She also confirmed that after the accident, the factory was left in a mess, with stock, offcuts from machinery, and boxes left everywhere. Prior to the accident, the factory had been kept very neat.

Financial information

1. The company's position, as revealed by its tax returns, was as follows: Financial year ended Gross revenue Gross expenses Profit/loss 2011 116,223 204,018 (87,795) 2012 143,326 160,829 (17,503) 2013 210,860 204,969 5,891 2014 103,073 142,189 (39,016) 2015 248,126 230,451 17,675 2016 217,016 206,170 10,846 2017 211,113 210,929 184 2018 114,857 152,781 (37,924)

1. Business activity statements for the company, in the current financial year, recorded total sales in the following amounts: 1 July 2018-30 September 2018 $30,586 1 October 2018 - 31 December 2018 $36,973
2. It was put to the plaintiff that there had been no material change to the profitability of the company after the incident in question. The plaintiff accepted this, whilst emphasising that much economic circumstances had changed, including a change in clientele and global industry trends.
3. Part of these expenses of the business included salaries for the plaintiff and his wife. Tax returns disclose the plaintiff's taxable income throughout the period before and after the accident were: Financial year ended Taxable income 2012 11,905 2013 6,664 2014 431 2015 8,697 2016 20,539 2017 8,000 2018 18,247

1. The plaintiff's wife, Joanne Mackey, received a salary from the company. She was the bookkeeper who worked one day a week. But she also had her own job as an Administration Secretary for Airfoil Manufacturing. Details of her taxable income were as follows: Financial year ended Taxable income 2011 19,060 2012 26,833 2013 49,335 2014 52,975 2015 60,434 2016 59,932 2017 54,075 2018 57,158

Personal liabilities

1. The plaintiff's home has been used as security for the company factory. Mrs Mackey currently estimated that the debt was approximately $170,000. Repayments (approximating $800 per month) come out of the joint account in the names of the plaintiff and his wife.

Evidence from orthopaedic surgeons

1. Dr Lee, the plaintiff's orthopaedic surgeon, reported that when he saw him in January 2017, the plaintiff had informed him that he had difficulty climbing ladders. The plaintiff informed him that he had to climb ladders to give quotes and met maintain machines, and was unable to do so after the accident. This opinion had not changed had when Dr Lee saw the plaintiff again in August 2018.
2. When he saw Dr Harvey in April 2018, the plaintiff gave an account of his work capacity after the accident. He said that not long after the accident he did some administrative work and some quotes and started doing some light manufacturing of fans within a few weeks. He could do these things sitting down. But it was six months before he was installing fans at convenient levels. The plaintiff explained to him that since the accident he had become nervous about working at heights and usually did not install any fans at a height. He says he lost a further two weeks from work after an operation on his knee (in August 2016).
3. Dr Harvey said that the fracture of the left ankle had now united, was in a good position, such that the plaintiff had been only left with a slight loss of movement in the ankle and hind foot. He accepted that the plaintiff could experience some loss of agility, causing him anxiety when working at heights. Nevertheless Dr Harvey thought he would be fit for most forms of work; for working at heights.
4. In their joint report there was some substantial common ground between Dr Lee and Dr Harvey as to the plaintiff's present and future physical capacity to work. They agreed that the plaintiff:

• could have difficulty climbing ladders;
• could have difficulty climbing and walking on roofs;
• could have problems with his ankle if required to operate metal presses (by which he used one leg while standing on the other, and where the movement of the press was dampened by a counterweight requiring significant force to move it) for long periods;
• symptoms were unlikely to further deteriorate in a way which may impact upon his ability to do aspects of his work.

Dr Kaplan

1. Dr Kaplan noted that during his examination with the plaintiff, the plaintiff had listed that the main cause of his difficulties at work was his restricted activities from the physical injury. Dr Kaplan said that a secondary factor was poor memory and concentration and it was likely that his introspective and dejected mood affects him as well.
2. Dr Kaplan said that he thought that the plaintiff mental condition would stabilise when (and, pertinently if) the plaintiff received the recommended treatment.
3. Dr Kaplan did say that as the plaintiff's condition had not stabilised, his WIP cannot be yet assessed. This was in a report prepared over 6 months ago.

Past out of pocket expenses

1. The plaintiff said in his examination in chief that he wore the moon boot for 3 months. Dr Dave had recommended that he would need it for 3 weeks. It was put to the plaintiff that he was exaggerating his symptoms. The plaintiff explained that he had taken the boot off (and on) for a period.
2. After the plaintiff had seen Dr Perveen and Dr Dave, and after he had worn the moon boot the plaintiff refrained from undertaking surgery. He had refrained from undertaking physiotherapy.
3. The plaintiff, instead, had adopted 'herbal' remedies: such as taking fish oil and turmeric.
4. He had received a recommendation to, but refrained from doing weight-bearing exercises.

Future out pocket expenses

1. In his January 2017 report, Dr Lee said that he did not perceive any need for any active treatment. That opinion had not generally changed when Dr Lee saw him in August 2018, although Dr Lee did say that the plaintiff could have acupuncture treatment and remedial massage when it got more painful. I interpreted this evidence (in the absence of Dr Lee being called) as being a reference to the plaintiff's complaint about his shoulder: Dr Lee in an earlier question noted that it was pain the left shoulder which was (at the time of Dr Lee's examination) bothering him the most.
2. Dr Kaplan considered that the plaintiff required to see a psychiatrist for anti-depressants and suggested he attend a psychologist for 6 - 8 sessions.

FUTURE DOMESTIC ASSISTANCE

1. No claim has been made for past domestic assistance.

Lay evidence from the plaintiff and his wife

1. Prior to the accident the plaintiff says that he did most of the cooking. He said his wife did most the cleaning although his daughter assisted with the cleaning. His son did very little. Since the accident the cooking was shared. His son now mows the lawn.
2. The plaintiff expects his son to move out shortly. He had purchased a house in December 2018. He thought he would have to get "Jim's Lawnmowing" to mow the lawn. His wife works the same period of time as himself - 32 hours per week.
3. The plaintiff's wife gave some evidence about his domestic assistance. She said that before the accident husband was quite a handyman and renovator. In terms of more mundane activities, he did some vacuuming and did a lot of the cooking, but otherwise he "wasn't big on the housework".
4. She said that the plaintiff had done some mowing since the accident.

Evidence from the orthopaedic surgeons

1. When he saw the plaintiff in January 2017, Dr Lee said that if it were not for the help of his wife and son, six hours the domestic help per week would be appropriate.
2. Dr Harvey said in his report that he did not consider that the plaintiff required any regular domestic assistance. He says that the plaintiff had conceded to him that he could mow the lawn if he had to. Dr Harvey said that he thought i that the plaintiff might have some difficulty doing more difficult maintenance work about the home that required a degree of agility. He noted that although the plaintiff was able to return to golf, he was unable to jog.
3. Now that his foot was out of the boot (2-3 months after the incident) Dr Harvey did not consider there a need for domestic assistance amounting to more than six hours per week for six months or more. Dr Harvey thought that on average, he would not expect any future domestic assistance to amount to more than one hour per week. In this regard he "strongly" disagreed with Dr Lee's assessment as to the extent that future assistance would be required: explaining (or perhaps more accurately, submitting) that if the plaintiff could construct industrial fans and do installations at convenient heights, he would be able to engage in most domestic activities.
4. In their joint expert report, after agreeing that there was unlikely to be any deterioration in the plaintiff's symptoms, Drs Lee and Harvey were unable to identify any impact (relevantly) upon the plaintiff's ability to undertake aspects of the ordinary activities of daily living.

ISSUES

1. The issues ultimately presented for the Court's determination were: 1. whether any reduction should be made to the plaintiff's damages because of contributory negligence; 2. what were the injuries and disabilities caused by the plaintiff's fall; and, more specifically: 1. whether injury to the right knee; 2. whether any shoulder injury; and 3. any anxiety and depression 4. were causally connected to the accident. 1. What, if any, allowance should be made to the plaintiff in damages for: 1. Non-economic loss 2. Past loss of earning capacity; 3. Future loss of earning capacity; 4. Past out of pocket expenses 5. Future out of pocket expenses; 6. Future domestic treatment

Defendant's submissions

1. The defendant says that a defence of contributory negligence is made out, by his failure to 'manoeuvre' himself on wet tiles and that a reduction in damages should be made in the order of 25% for his failure to take precautions.
2. The defendant submitted that the plaintiff's fall did not cause any injury to his right knee, left shoulder or any subsequent mental harm consequential upon his physical injury.
3. It generally submits that any damages should be modest in view of: the conservative nature of the plaintiff's treatment, the absence of any continuing treatment, the early excellent prognosis (on the ankle) and the absence of any substantive continuing disabilities.
4. In particular, the defendant submits that no allowance should be made for past or future economic loss; future treatment expenses or future treatment.
5. It submits that past out-of-pocket expenses are no more than $500, a sum reflecting only the expenses in connection with the ankle. It also submits that an allowance should be made for non-economic loss, which it contends should be at the level of 20% of a 'most extreme case' (per s 16 of the Act); or, alternatively (if I found that depression was caused by the fall) 25% of a most extreme case.
6. In order to make good these contentions, the defendant attacked the plaintiff's credibility and the reliability of his evidence. Counsel for the defendant said that although he did his best to tell the truth, where matters were adverse to him, he gave non-responsive evidence. Counsel also relied upon differences between the plaintiff's account and those of his companions, Mr Head and Mr Bruce.
7. That the plaintiff was less than reliable or credible meant that the evidence of a number of the plaintiff's medical professionals (who relied upon his histories) was to be treated with caution. This is particularly the case with Dr Kaplan who, the defendant says, gave evidence substantially upon the basis of what the plaintiff told him. In relation to Dr Kaplan, the defendant said that no inference adverse to the defendant should be drawn from the fact that the defendant had engaged its own psychiatrist who had seen plaintiffs, but who did not give evidence.
8. On the major issue of damages in the case, being the extent to which the plaintiff's earning capacity has been, or is likely to be impaired in the future, the defendant says that such impairment has not been established or, if it has, it is not shown to be productive of financial loss. To the contrary, the defendant says that the output of the company had increased. Reliance placed upon tax returns of the plaintiff's company.
9. In relation to non-economic loss, the defendant says that the plaintiff is still able to play golf and although sympathy may be extended to the anxiety and depression experienced in 2017 that was not linked or is connected to fall. The defendant said that a contemporaneous mental health plan indicated that other causes were at play that led to the plaintiff's suicidal ideation in June 2017

Plaintiff's submissions

1. The plaintiff submitted that the defendant carried the onus of establishing contributory negligence; which it did not discharge. Senior Counsel for the plaintiff rebutted the attacks on the plaintiff's credit. He reminded me that the plaintiff was giving evidence about events that occurred three a half years ago and that there was some indications (including the evidence of Dr Kaplan) that he had poor memory and concentration. There were some instances, including the consumption of alcohol, where the plaintiff's evidence was that he drank more than that which he had been observed from his companions.
2. Senior Counsel said that the issue of whether the plaintiff had suffered a shoulder injury was not part of the plaintiff's case. He maintained that the plaintiff's evidence was that he did sustain an injury to the right knee at the time of the fall and that it was when the plaintiff subsequently did work that brought on the pain in 2016.
3. In relation to the plaintiff's psychiatric case, Senior Counsel for the plaintiff noted that Dr Kaplan had not been challenged and that it would be open to the Court to draw a Jones v Dunkel inference against the defendant from its failure to call Dr Lewin. He said that the emotions of frustration, a sense of incapacity, and helplessness were attributed to the fall, was one factor which, amongst other factors, induced anxiety and depression.
4. In relation to damages, the plaintiff adheres to his pre - trial schedule of damages which pitched non-economic loss at a level of 35% of a most extreme case. This level was contended for on the basis that the plaintiff psychological condition complicated and differentiated this case from other cases where non-economic loss was awarded for (predominantly) ankle injuries.
5. On the economic loss claims, Senior Counsel for the plaintiff criticised the defendant for its focus on the economic 'bottom line' revealed in tax returns. The test was one of loss of capacity. To the extent that the tax returns were relevant, they showed that revenue had fallen off by up to 50% from 2015 to 2018, being period after the accident. Reliance was also placed upon the plaintiff's evidence as to what he was able to obtain, prior to the fall, through the installation of units.
6. As to future loss of earning capacity, if, as the plaintiff said there had been an economic downturn in this particular industry, that would prejudice his prospects as an employee on the open market. The plaintiff submitted that there should be a $200,000 buffer (factoring in the 5% table) which, after vicissitudes (at 15%) would equate to the plaintiff's receipt of $326 per week.
7. For future assistance, reliance is placed upon evidence about the plaintiff's inability, or restricted ability to, to mow the lawn; and comparison was made between his pre-accident ability to engage in such matters as renovations compare to his position after the accident. It was submitted that the sum of $41,287 should be given; which some would reflect one hour per week at a rate of $45 for the remainder of the plaintiff's life.
8. The plaintiff says the total past out-of-pocket expenses is in the order of $5,054.27. The defendant agrees only to the component of $500, attributable to the left ankle only. Of the balance of the claimed amount ($4,629.77), the sum of $75.49 was attributable to the psychiatric claim. The rest related to the right knee.
9. For future out-of-pocket expenses a claim is made for $10,000, representing $12 per week for the rest of the plaintiff's life. This could deal with such things as acupuncture and remedial massage treatment, psychiatric and psychologist consultations and anti-depressants.

Defendant's submissions in reply

1. In reply, counsel for the defendant referred to evidence from the orthopaedic surgeons that there was unlikely to be any deterioration in the plaintiff's symptoms. In so far as his ankle was concerned, his prognosis was stable. In relation to the future treatment of his ankle injury (which the defendant accepted was likely to be manifested in stiffness into the future), it was noted that the plaintiff had not undertaken physiotherapy or any other form of rehabilitation since he had seen Dr Dave in November 2015.
2. Counsel also said that no weight should be placed upon the report of Dr Kaplan; reprising, essentially, the objection he had raised to its admissibility, being that the facts sustaining the diagnosis were not made out. Counsel also said that the link between the company's economic performance in 2017 and 2018 and the fall was tenuous. He said that whilst there may have been some impairment in the plaintiff's ability to manufacture and/or install products, he was able to offset those disadvantages in other ways, such as the ability to sell more.

Credit

1. I consider that the plaintiff was generally a reliable witness who tried his best to tell the truth; however he was not flawless. I accept the defendant's submission that there were instances when non-response answers were given by him when pressed on matters that may not have advanced his case. This included his adhering to a position that he had sustained injuries to his right knee and shoulder from the fall, whilst previously omitting to disclose information to the various medical professionals who saw him about such complaints. The plaintiff tended to develop a stock answer that he was only there to see the medical professionals in connection with his left ankle injury. That was unsatisfactory. Nevertheless, I do not consider that the plaintiff embellished or exaggerated his injuries he claimed he suffered: he did not need to. The main issues at trial became whether a causal connection had been established between the claimed injuries and the defendant's negligence and whether there were continuing disabilities. At least insofar as the physical injuries were concerned, there was much common ground between the parties on these issues.
2. I do not place much store upon inconsistencies or discrepancies between his evidence, and that of Messrs Bruce or Head (about whom no credibility challenge is made) about the events leading up to the fall. The fall took place over 3 ½ years ago. I do not consider that either Mr Head, or Mr Bruce would have had much occasion in the intervening period to turn their mind to the events leading up to the fall that they had witnessed; or that those events were of such significance as would likely have left any enduring impression. To a lesser extent, perhaps, I consider that the same observation can be made about plaintiff.
3. I consider that the most vivid aspects of the plaintiff's recollections of the date upon which he fell concerned the fall itself. On this, I considered that the plaintiff gave firm evidence, which he subsequently adhered to when he explained the event to the medical professionals who treated or assessed him.
4. In particular, I do not accept that the plaintiff, by himself, or in concert with Messrs Head or Bruce, gave evidence in a way designed to minimise the level of drinking by the plaintiff on the day in question. In the absence of any pleaded reliance, in the defence, concerning intoxication, I did not consider that there to be any real incentive for the plaintiff to minimise his drinking and, I accept that there is force in the point raised by Senior Counsel for the plaintiff that, if anything, the plaintiff's evidence, taken as a whole, might suggest that he overestimated the amount that he had drunk; in comparison with the evidence of his companions.
5. I do not accept that the plaintiff deliberately exaggerated the symptoms of his injuries; although, of course, careful consideration needs to be given to the contemporaneous complaints about his disabilities and symptoms that he gave to the medical professionals.
6. In rounding off this topic, I note that the defendant's Counsel did not suggest that any of the other witnesses called by the plaintiff, who, collectively, corroborated the material parts of his evidence, were anything but satisfactory and reliable witnesses.

Contributory negligence defence

1. The question raised by this defence is whether the plaintiff showed that degree of care for his own safety that a reasonable person would have shown (Joslyn v Berryman (2013) 214 CLR 552). The standard of care, for the purpose of s 5R(2)(a) of the Act, is generally how a reasonable person, in the defendant's position, would have acted (having regard to the considerations in ss 5B and 5C).
2. Those circumstances to which the reasonable person in this plaintiff's position was subjected included that the person was among a crowd (including a group of friends), listening to a band, having been entertained and, presumably, having consumed a responsible amount of alcohol.
3. At about the point where the plaintiff fell, the crowd was in a relatively confined space, of not more than a few metres between outdoor furniture. Another physical circumstance concerned the effect of the rain upon the tiles would not have been as noticeable as if the tiles had been subjected to heavy rain. Although each of the plaintiff, Mr Head and Mr Bruce testified to rain, it was in the nature of a drizzle. If it was torrential, or even heavy, I doubt that the band would have been allowed to commence, or continue to perform; or, even if it did, whether there would have been much of a crowd outside (even if the umbrellas were up). I consider that it is probable that the effect of drizzle may have created more risk to a slip than heavier rain. Patrons were less apt to notice that the tiles were wet and made slippery. At any rate, heavy rain would have encouraged patrons to move inside. In short, a reasonable patron in the plaintiff's position would not likely have thought about taking any additional care against the risk that the tiles were slippery than s/he would take if the tiles were dry.
4. As Senior Counsel for the plaintiff emphasised, the defendant carries the onus of proving contributory negligence. The defendant's pleading was vague - specifically, it was alleged only that the plaintiff failed to properly watch where he was walking. As I have noted, the defendant eschewed intoxication as a defence (per s 50 of the Act).
5. An important factor in evaluating the defence is to consider what the plaintiff knew or ought to have known at the time (s 5R((2)(b). The plaintiff knew that there was light rain. He also knew that it was wet, but according to his evidence, which I accept, he learnt of the wetness of the tiles only after he fell. It was not put to the plaintiff that he knew that the tiles were slippery prior to his slip. Further, even if the defendant knew (or should have known that) the tiles were slippery, it was not articulated, or established how a reasonable person in the plaintiff's position (and with his knowledge) would have acted any differently to this plaintiff in circumstances where the patron intended to go to the bathroom.
6. This being so, it was not surprising as there was no real specificity in the way that Counsel put to the plaintiff, in cross-examination, how he failed to take reasonable care for his own safety. At its highest, it was that he was not looking at where he was going. (The passages where the plaintiff was cross-examined on the circumstances of the fall appear at pages 74-76 and 78-81 of the transcript).
7. In his submissions on the point, Counsel for the defendant contended that the failing to take precautions consisted of a failure to look, to be careful and walk slowly. A fundamental problem for the defendant, on this point, was its failure to demonstrate how these failures occurred.
8. The plaintiff's evidence was that he slipped when deciding to go to the bathroom. He accepted that in the lead up to the fall, he was dancing, and mingling with his friends, but there was nothing to suggest that, in moving towards the bathroom, the plaintiff essayed any sudden movement; or that he was doing anything other than attempting to walk at a normal pace towards the bathroom. No witness was called for the defendant to give evidence to the contrary.
9. I am not persuaded that the plaintiff failed to look where he was going, to be careful or to walk 'slowly' (however that is measured).
10. Further, the defendant (who also bore the onus on this issue) did not specifically advance any submissions on the causal aspects of any contributory negligence to the ankle injury that he suffered after the slip and fall (whether by reference to general principles or by reference to ss 5D-5E of the Act: Coles Supermarket Australia v Bridge [2018] NSWCA 183 at [31]). Without being able to specify the circumstances in which the plaintiff fell, it is hard to see how causation can also be made out to mandate any apportionment exercise. In view of my other findings on whether the plaintiff failed to take reasonable care for his safety, I do not need to consider this aspect further.
11. This defence fails.

General

1. The plaintiff bears the onus of proving that the injuries and disabilities he alleges were caused by the defendant's negligence (ss 5D - 5E of the Civil Liability Act). This requirement extends to proof of all heads of damage that are claimed.

Left ankle

1. There is no dispute that a left ankle injury had been suffered and the experts jointly agreed that the plaintiff was likely to continue to suffer symptoms of that injury. I note that they also considered that such symptoms were not likely to worsen.

Right knee

1. Although I accept that the plaintiff fell on his right knee when he slipped I am not persuaded that he sustained any ongoing injury to right knee caused by the subject fall.
2. In my view, the evidence of the doctors and, also, the plaintiff's wife, shows that the plaintiff's complaint about his right knee only emerged in about August 2016, being a substantial period of time after the subject fall. I think the more likely explanation is that the plaintiff had sustained the knee injury at work. This was either as a result of a single instance of kneeling or, more likely, a sustained period of kneeling.

Left shoulder

1. Senior counsel for the plaintiff did not press any allegation in relation to this particular injury so I do not consider it further.

Anxiety & depression

1. In my opinion, the defendant's negligence was a necessary condition of the plaintiff suffering anxiety and depression, which was mental harm consequential from the injury to his left ankle. There was no suggestion by the defendant that if I made that finding, it is not appropriate for the scope of its liability extending to that harm (s 5D(1)(b) of the Act). For the first three months after the accident (a not insignificant period), the plaintiff had to wear a CAM boot on his left foot. This significantly impeded his physical capacity to work in his business. My impression of the plaintiff was that he was proud of the business that he had developed which, to a significant degree required his physical labour and exertion; and to have that capacity inhibited was inherently likely to, and did, induce feelings of frustration and loss of self-esteem.
2. Those feelings were then exacerbated, after removal of the moon boot, when the plaintiff was unable to develop, or grow the business in the way that he wanted to do so, generally, in terms of the components of fabrication or installation of units. Further, anxiety and frustration developed specifically from a sense that he was unable to develop, or fully exploit the solar installation unit he had spent many years working on.
3. From there, it did not take much for these feelings to spill over into depression. I accept the evidence of the plaintiff and his wife about the mounting arguments - the most obvious manifestation of depression. Such arguments had not been present, in degree or number, prior to the accident. Although domestic reasons were also at play, a large part of the domestic tensions with the son was attributable the plaintiff's frustrations with his impaired working capacity and what were probably overbearing attempts on his part to co-opt his son to do what he could to tide over the business for a period in which, it was hoped, the plaintiff's injury and disability would abate. This was typically at an age when the child seeks to demonstrate and exert his or her own independence from his parents. It does not surprise me that in the circumstances conflict developed between father and son; and that, further, Mrs Mackey may have been drawn into that conflict, leading to tensions in the marital relationship as well.
4. I accept that the effect of the plaintiff's physical restrictions upon his working capacity was not the only cause, or contributing factor to the development of anxiety and depression. Conceivably, the plaintiff may have had a prior disposition towards depression - it had, to some extent, run in his family.
5. There was no challenge to the evidence of both Mr and Mrs Mackey, that they had not experienced fighting like that prior to the fall. More generally, there was no challenge by counsel for the defendant, at all, to the evidence of Mrs Mackey, that from the time that the moon boot came off her husband, the domestic fighting had begun.
6. So at least it could be said that, for some period, the plaintiff's anxiety and depression was caused by the fall. The real issue is the currency and likely duration of this mental condition. The defendant disputes that at the time the plaintiff showed signs of suicidal ideation in June 2017, this had anything to do with the fall that occurred on 31 October 2015. In this regard, counsel for the defendant submitted that alternative explanations for this level of emotional desperation were, as he recounted in his admission to Campbelltown Hospital, the plaintiff's protracted ear infection, fighting with the son and a downturn in work (due to causes unrelated to the ankle injury). A clinical record from the hospital also noted depression had been ongoing over the last four years. Reliance was also placed upon the circumstance that in May 2017, the plaintiff and his wife had taken a pleasure cruise, at which time, the plaintiff (at least) thought that domestic issues were manageable.
7. In my opinion these matters that the defendant relies upon do not derogate against the proposition that anxiety and depression were materially contributed to by the fall and that such anxiety and depression still continues; albeit that it is being managed by antidepressants. I am mindful and was impressed, by Mrs Mackey's evidence, comparing the plaintiff's disposition around the home, before and after the accident. That was, as I have found, attributable with the plaintiff's frustrations at work. Although it is true that self-employment is such that there are always likely to be work pressures of one kind or another, the plaintiff's physical restrictions, in terms of both his manufacturing and installation activities were a recurring problem for him since the accident, feeding into or contributing to mental harm. I do not consider that a short cruise north along the east coast was likely to have the enduring benefit suggested by the defendant. Nor do I think that in the dire circumstances in which the plaintiff found himself in June 2017 an omission to allude to hospital staff, specifically, to the fall in November 2015, is conclusive against the causal connection continuing up until and beyond that point. The plaintiff's troubled mind at that point would have been focussed on a range of things.
8. So far, I have not referred to the evidence of Dr Kaplan, which not only diagnosed depression in the plaintiff but also attributed a causal connection of that condition to the fall. As I have intimated, I would have reached a view about the plaintiff's depression and a causal connection even without taking into account Dr Kaplan's evidence.
9. Be that as it may, plainly, Dr Kaplan's evidence supports the plaintiff's case and, to some extent, fortifies my conclusions. Counsel for the defendant protests that there was an absence of transparency in reasoning in Dr Kaplan's opinion, in this regard. However as I indicated, when I overruled his objection to the admissibility of this opinion, Dr Kaplan not only had regard to the history of events as conveyed to him by the plaintiff, but also had regard to the medical notes and clinical records of Campbelltown Hospital, the evidence of Dr Lee and exercised his own professional judgement in examining the plaintiff.
10. Dr Kaplan had received an initial requirement to attend for cross-examination. However, after the defendant's objection to his evidence was overruled, counsel for the defendant indicated that he would no longer be required to give evidence. In view of this, counsel for the defendant relinquished the opportunity to test or challenge Dr Kaplan's evidence.
11. Moreover, it is plainly the case that the defendant had arranged for the plaintiff to receive a psychiatric assessment from its own psychiatric expert, Dr Lewin the day after it had been served with Dr Kaplan's report. That appointment had been arranged by the defendant's solicitors. Ultimately, no report was served from Dr Lewin or any other psychiatrist; and no explanation was given for why he was not called.
12. In the circumstances, and contrary to the submission of the defendant, I more readily accept Dr Kaplan's evidence in the respects I have referred to, which might have been contradicted by Dr Lewin, but was not (see, Manly Council v Byrne [2004] NSWCA 123 at [51]; RHG Mortgage Ltd v Ianni [2016] NSWCA 270 at [160]-[161]).
13. In the circumstances therefore, I find that the defendant's negligence caused anxiety and depression in the plaintiff, and that such condition still exists and requires continuing management.

Non-economic loss

1. The pain and suffering associated with the physical injury to the left ankle has been significant. Aside from the immediate impact, I have regard to the circumstance that the plaintiff will likely to continue to experience symptoms in his ankle. He is still able to engage in his golfing pursuits; albeit that his golfing has become less regular. I am also mindful that his work and other leisure activities, such as jogging and cooking, have become more restricted than they were before the accident.
2. In addition, the plaintiff derives much pride and satisfaction from the manual and physical labouring parts of his business and this has been diminished by his physical injury.
3. The plaintiff's mental harm is also to be recognised under this head. I acknowledge that the depression and anxiety consequential upon the plaintiff's physical injury was not the only factor which led to the plaintiff's suicidal ideation in the middle of 2017. There were a range of other factors that contributed to those events. Some of those factors, such as the ordinary stresses of self-employment and tensions with the plaintiff's son, regarding his domestic contributions, would probably have occurred without the fall, albeit perhaps with less force or intensity than occurred with the fall. The ear infection had also been a debilitating presence for months and had nothing to do with the fall. Nevertheless, the mental harm has been significant, and is illustrated by the plaintiff's current use of anti-depressants. The plaintiff's mental harm had, for a not insignificant period of time after the accident, caused much domestic discord in the plaintiff's family, and much distress to the plaintiff in particular.
4. I take into account that, although there are residual issues concerning the ankle and a psychological condition that needs to be monitored and possibly managed, there is no significant treatment that will be required in the future and the plaintiff has been able to get by with most of his pre-accident leisure activities. That said, being aged 47, he is likely to endure at least physical inconvenience in his ankle over many years.
5. Counsel for the defendant attached to his submissions a table of comparable verdicts of the awards for non-economic loss for plaintiffs who had suffered ankle injuries. In doing so, he acknowledged the limited (precedential) benefit for such table to inform my assessment of this particular plaintiff's position. Senior Counsel for the plaintiff submitted that the table had even less benefit as the cases where an ankle injury had been sustained were not overlaid by a psychological condition. I have had regard to those comparable verdicts (per s 17A(1) of the Act) and particularly those decisions (such as State Rail Authority v Chu [2008] NSWCA 14 and Oberlechner v Hornsby Shire Council [2017] NSWSC 23) where there was a psychological overlay consequential to and combined with residual disability from a physical injury.
6. Having considered the principles for awards for of this particular head damages, in respect to a 'most extreme case', in cases such as Dell v DaIton (1991) 23 NSWLR 528, and having taking into account the two forms of injury (physical injury and mental harm) which I have found were caused by the fall, and have ongoing consequences for the plaintiff's pain and suffering, and enjoyment of life, I would assess the non-economic loss at the level of 28% of a most extreme case.
7. This yields an allowance for this head of damage of $88,900.

Loss of earning capacity - past

1. In assessing damages under this head, the objective is to compensate the injured plaintiff because of the diminution of his earning capacity, to the extent that that impaired capacity is productive of financial loss (Graham v Baker (1961) 106 CLR 340). It is necessary to identify both (a) the capacity that has been lost and (b) what economic consequences would probably flow from that loss: Husher v Husher (1999) 197 CLR 143 at [7]-[8].
2. The defendant pointed to the tax returns of the business to indicate continued (albeit reduced) profitability. But the award is not for what a plaintiff actually loses, but a financial evaluation of the worth of what is lost: Ruby v Marsh (1975) 132 CLR 642 at 650. As the Court of Appeal explained in State of New South Wales v Moss (2000) 54 NSWLR 536 (per Heydon JA at [71], with whom Mason P (expressly) and Handley JA (indirectly) agreed). "Strictly, the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss …. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income…. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise enquiry and calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities" (emphasis supplied)
3. In this case a complicating factor is that the plaintiff is self-employed, and has conducted his work through an incorporated entity. Plainly, the plaintiff and his wife have drawn salaries to the company's expense (generally, higher in the case of Mrs Mackey than the plaintiff) and both have benefited whenever profit the company has resulted. It is fair to say that Mrs Mackey's role in the business - an hour's bookkeeping a week - has been negligible.
4. Counsel for the defendant pointed out that the claim of economic loss had been made by the plaintiff, an individual shareholder of the business which is conceptually distinct from any claim by the company. Whilst that is true in a technical sense, it has long been established that where a sole shareholder company itself does not bring its own action (action per quod servitum amisit), the shareholder should be able to recover the loss that he has sustained in reduced distributions from the company that have been shown to have been caused by the shareholder's incapacity (see H Luntz, Assessment of Damages for Personal Injury and Death (1990) [5.5.6]). In any event, the economic capacity in which the plaintiff has suffered loss is also a distraction since, as the plurality observed in Husher v Husher (at [23]): "The task is not one to be undertaken by seeking to classify cases as concerning 'sole traders' or 'partnerships' or 'wage-earners' or 'trading trusts', and then attempting to deduce some rule of general application to all cases falling within the classification thus devised. Rather the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal…"
5. To the extent that evidentiary guidance can be obtained from the company's tax returns it is apparent that from a high point in the year ended 30 June 2015, being the financial year immediately before the plaintiff's accident subject of this proceeding, the company's turnover has been on a downward trajectory. I acknowledge that that may be attributable to a number of reasons unrelated to the accident; some of which were explained by the plaintiff himself, including change with the composition of his clients and global economic trends for this particular industry, but it is not possible for me to disentangle, from the figures alone, those extraneous factors and those relating to the plaintiff's physical and mental injuries and disabilities.
6. I cannot overlook the plaintiff's evidence -not seriously challenged - that his earning capacity was impaired, as a result of the plaintiff's physical injury, in two phases. First, there was the period of 3 months in which the plaintiff had the moon boot on. In this early period, the plaintiff was confined to quoting and outsourcing (buying opposition products and re-selling). This was, he says, the paperwork side of the business. Outsourcing in this way meant that there was less margin obtained than would otherwise have been the case. Second, there has been the period since the moon boot came off. From that moment on, the plaintiff said, the physical side of the work was slow. He was unable to climb ladders often as he previously did to install units. He needed to engage a roofer ('Perry's') to install units. Further, he was unable to use the equipment and plant of the company to engage in the manufacturing activity that the plaintiff had engaged in prior to the accident. Much of that activity, the plaintiff explained (without real contradiction) did involve him bearing his weight upon one or both of his legs. This evidence of physical restrictions upon the plaintiff's capacity to work is supported by the joint report from the orthopaedic surgeons.
7. Some allowance also needs to be made (both for past and future loss of earning capacity) in relation to the plaintiff's specific aspiration, to manufacture, sell and install the solar installation system which he had been developing since late in the last century. I accept that as a result of the accident, and, specifically, restrictions in his capacity to install this model of unit are likely to hinder, or frustrate the full ability for the plaintiff to exploit this work, since the accident, and into the future. This should be factored into the valuation of the plaintiff's past and future earning capacity (per State of NSW v Moss at [83], although I acknowledge that the plaintiff did not seek to meaningfully differentiate how the exploitation of this particular product differed from his inability to exploit the other products.
8. Aside from the physical restriction in the ankle - which both orthopaedic surgeons accept is on-going - there is also the matter of how the plaintiff's mental condition has impinged upon the plaintiff's earning capacity. Whilst acknowledging that stress is part of the reality of life for any sole trader, in the best of circumstances, the physical restrictions facing this particular plaintiff were also such that his mental condition since the accident likely impeded performance of his business. I doubt if the stresses and frustrations expressed at home soon after the accident were entirely confined to the plaintiff's domestic sphere, but consider that they may also have played out at work (and will likely continue to do so) in less tangible ways, such as the plaintiff's memory and concentration. That was not likely to have assisted him with customer relations. It would have, at any rate, impeded the plaintiff's productivity. This is also relevant to evaluation of the impairment.
9. I do not accept the defendant's submission that the inhibitions upon the plaintiff's capacity to manufacture and install could have been or was offset by the plaintiff's ability to work on the 'sales' side of the business, or do other remunerative matters. The plaintiff's skills (and training) were specialised and narrow. I consider that the inhibitions upon the plaintiff's incapacity would, at the very least, have delayed the time within which units - including (but not limited to) the solar installation system that the plaintiff had such high hopes for - could have efficiently been manufactured and installed. These circumstances would naturally have impeded sales. The plaintiff gave some evidence that, very recently, he had sold, but could not install 8 units. Because he was not able to install the units, he lost $7-8,000 in relation to the installation of those units. This was at a time proximate to the trial. This is relevant, although, as I have said, it is only an evidentiary guide that should not be overlooked. I note also that there was a $30,000 difference in turnover in the financial year in which the accident occurred and, further, that in the period since the year before the accident and 2018, turnover had reduced by about $5006. So the impaired capacity has been productive of loss.
10. The plaintiff submits that past loss of earning capacity should be valued at the sum of $50,000 in the period of virtually three and a half years since the accident. This not an extravagant claim. In the circumstances, I agree that $50,000 is an appropriate sum for this head of damages.

Loss of earning capacity - future

1. Section 13 of the Act applies to damages for future economic loss. Section 13(2) of the Act requires an approach that is consistent with the approach of the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. That approach involves: (a) calculating the percentage possibility of a future event occurring, but for the negligently inflicted injury, and then (b) adjusting the award of damages according to that calculation: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [128]-[137].
2. Although the matter is now governed by s 13, insofar as the process of valuation of the lost future capacity is concerned, the principle at common law is enduring: whilst the past may provide important evidence about what would have been earned if the plaintiff had not been injured, ultimately the enquiry is about the likely course of future events and evidence of past events is not always provide certain guidance about future: Husher v Husher (1999) 197 CLR 143 at [7]-[8]
3. Ultimately Senior Counsel for the plaintiff submitted that a buffer sum was appropriate. Where, as here, it is difficult to determine the economic consequences upon earning capacity from an injury caused by the defendant's negligence, it is appropriate to award a some by way of buffer (Penrith City Council v Parks [2004] NSWCA 201 at [5], [58]). I agree that for a sole trader in this particular industry and with this plaintiff's restrictions, a buffer sum is appropriate because of the difficulties in quantifying future likely loss of earning capacity.
4. But for the fall caused by the defendant's negligence, I assume (for the purposes of s 13(1) of the Act), that the plaintiff would have continued all facets of his business activity, involving the manufacturing and installation of vans; and their sale. He would likely have performed these activities himself (with his wife continuing in the bookkeeping role) until his retiring age, being about 67. I also consider that the plaintiff would have been likely to have increased turnover by reason of his full exploitation of (through both the manufacturing and installation activities concerning) his innovative solar installation fan, although it is very difficult to quantify how much this would have added to the turnover of the business: this would depend upon the level of technological innovation in this particular industry.
5. In terms of the effect of the ankle injury upon the plaintiff's future earning capacity, I accept the correctness of the joint expert view from the orthopaedic surgeons that the plaintiff has experienced and will continue to have difficulties with climbing ladders, climbing and walking on roofs and operating the metal presses used in the manufacturing process. Doctors Lee and Harvey agreed in their joint report that those problems were "likely to increase". The plaintiff will probably be affected in his capacity to engage in the manufacturing and installation components of his business. In addition, I expect that the continuing, and probably increasing, physical restrictions will probably also impinge upon the plaintiff's capacity to concentrate at work and diminish his productivity.
6. Further, I consider that there is a serious prospect that the plaintiff's mental condition - which is very much linked to his physical work capacity and the success of his business generally - will impede the plaintiff's productivity and, in that way, impair his future earning capacity.
7. Senior Counsel submitted that a $200,000 buffer sum (assuming the statutory discount and vicissitudes at 15%) was reasonable. This figure amounts to $326 per week for the remainder of the plaintiff's working life (22 years), and the figure was attributable in large part to the lost opportunity to (both) manufacture and install fans based upon the figures referred to by the plaintiff when he gave evidence: this included, but was not limited to, the loss of the opportunity to install units for 16 hours over a month might be $8,000, or $2,000 per week. But for the injury, if he worked on the open labour market, for 16 hours of work, I accept the submission that it is not unreasonable to think that he might receive $326 per week for the remainder of his working life.
8. Counsel for the defendant did not argue against the award of a 'buffer' sum (if I rejected the defendant's argument that no loss of future earning capacity was established ) nor did he suggest that there was any upper limit, or other constraints, applicable to an award on this basis (Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [48]).
9. Nevertheless, in determining the amount for buffer, in accordance with the principles of Malec v JC Hutton (1990) 169 CLR 638, I consider that there is reason to think that possibilities of change within the industry, particularly technological change and other developments (some of which the plaintiff himself referred to) unrelated to the defendant's negligence may diminish his earning capacity more than has been recognised by the plaintiff, so that greater deduction should be made for the vicissitudes.
10. In awarding a buffer sum, the percentage adjustment for the purposes of s 13(2) of the Act is nil.
11. In the circumstances, I allow the sum of $180,000 as a buffer for loss of future earning capacity.

Past expenses

1. On the basis of my finding that the right knee concern was not attributable to the accident, but the left ankle injury and psychological injury were, I find that the figure for past out of pocket expenses is $575.49.

Future expenses

1. Neither Dr Lee nor Dr Harvey considered that the symptoms from the left ankle would deteriorate. But they agreed that there was likely to be some ongoing disability. Counsel for the defendant submits that from a time more proximate to the incident, up until now, the plaintiff has not availed himself of any physiotherapy or other form of rehabilitation. There was no suggestion that any further investigation was required, or any prospect of surgical intervention.
2. Dr Lee thought that the plaintiff might benefit from acupuncture treatment and remedial massage, however the context for that opinion apparently related more to the left shoulder concern than the left ankle. Dr Harvey did not consider that there was any need for treatment on the ankle at all. I prefer Dr Harvey's view in this respect, since it accords with the evidence as to what has broadly happened since November 2015. I am not persuaded that there is any future form of treatment for the left ankle that is necessary or which would be undertaken by the plaintiff, other than glucosamine, turmeric and NSAIDs.
3. There is, also, however the depression. I accept Dr Kaplan's view that the plaintiff would benefit from treatment with a psychiatrist and further psychological assessment. I am mindful that the plaintiff has previously baulked at receiving psychological consulting when he saw the psychologist, Neil.
4. I consider that allowance should be given for the cost of antidepressants and the probable need for the plaintiff to receive psychiatric assessment; probably also with some counselling, although I am sceptical whether the plaintiff may avail himself of counselling. On balance, I think it is more likely than not that he may come to reconsider the value of counselling, with the advice of his psychiatrist and, very likely, Mrs Mackey, but for how long the plaintiff might utilise this treatment is very uncertain.
5. The plaintiff submits that the sum of $10,000 should be awarded for this head of damage, representing $12 a week for the remainder of the plaintiff's life.
6. In view of the various contingencies I have referred to (particularly the plaintiff's likely use of counselling), I consider this to be an overestimate. I consider that the sum of $7,500 is a more appropriate figure, which, when discounted for vicissitudes, yields an amount for this head of damages of $6,375.

FUTURE ASSISTANCE

1. The plaintiff's statement of particulars (as amended) indicated that the claim was pitched on the basis of a need for future commercial assistance. The constraints of s 15 of the Act do not apply to such claim: Avopiling at [126].
2. Mrs Mackey's evidence is that, prior to the accident, the plaintiff was quite domesticated, not only doing the vacuuming, but also a large amount of the cooking. That was unsurprising given that the plaintiff and his wife shared similar working hours. He was also busy assisting with home renovations.
3. According to their evidence, Mr and Mrs Mackey did not receive much help from their son, Jayden, at a domestic level and, at any rate, he will not be staying much longer, as he recently purchased a house. The level and extent of the assistance provided at home by the couple's daughter was not known, but she appears to be now in her late teens and I expect it will not be all that long in the future that she might leave home as well.
4. Counsel for the defendant points to the circumstance that since the accident, the plaintiff has lifted weighty objects. He says that it must follow that the plaintiff is, and remains capable of doing the vacuuming and other domestic maintenance. I do not accept that submission. Other indications (such as the plaintiff stopping his running, as well as restricting his golfing activities from the level that they were prior to the accident), and Mrs Mackey's evidence about the plaintiff's frequent need to rest his ankle at home, reinforce the common view of the orthopaedic surgeons that there is ongoing difficulty with the left ankle, which is likely not only to impair the plaintiff's earning capacity, but also to play out in restrictions upon some domestic activities to be performed, particularly those requiring balance in the feet and legs, in the future.
5. I accept the plaintiff's submission, based upon the evidence of Mrs Mackey (T 186-7), that the lawn mowing activities, alone, would take 2 hours every 2 weeks or so.
6. The plaintiff submits that an award for future assistance is warranted, being for only one hour per week for the remainder of the plaintiff's life. This is the level of assistance that the defendant's orthopaedic surgeon, Dr Harvey, anticipated. At a rate of $45 per hour (a rate which, I was told, has been agreed between the parties) for this plaintiff's life expectancy, that supported a sum of $41,287. The plaintiff says that this is a modest amount - the estimate does not factor in the cost of getting someone to do the vacuuming.
7. In Avopiling, the Court of Appeal determined (at [127]-[138]) that the predictive exercise set out in s 13 of the Act extends also to claims for future attendant care and, further, that the principles from Malec v JC Hutton apply to this head of damage: namely, that factors other than the accident may necessitate such assistance.
8. In this case, there was little evidence of any direct intention by the plaintiff to obtain assistance on a commercial (rather than gratuitous basis), but with Mrs Mackey's working commitments (which were not suggested as being only temporary), that may be partly implied and, at any rate, the assistance which will likely be needed by the plaintiff in the future is not of the kind that could be assumed that she would be willing or able to provide. It is appropriate, however, that the allowance provided for this head of damages should be subject to the ordinary reduction for vicissitudes.
9. Taking the sum of $41,287 and applying a reduction of 15% for vicissitudes, this yields an amount of $35,094.

SUMMARY & ORDERS

1. For the above reasons, I assess the damages as follows: Non-economic loss 88,900 Past loss of earning capacity 50,000 Future loss of earning capacity 180,000 Past out of pocket expenses 575.49 Future out of pocket expenses 6,375 Future domestic assistance 35,094
2. This yields a sum of $360,944 to which should be added interest calculated in accordance with s 18 of the Civil Liability Act. The plaintiff is also entitled to costs.
3. I direct the plaintiff to serve, within 7 days, short minutes in accordance with these reasons. These short minutes are to be sent to my Associate.
4. These short minutes should provide for a final judgment sum (inclusive of interest).
5. The parties have liberty to apply for any special costs order by serving (and sending to my Associate) any submissions (not exceeding 3 pages) with supporting documentation, within 7 days. Thereafter should a party oppose any application for a special costs order by the other party, it should do so by serving (and copying to my Associate) any submissions (not exceeding 3 pages) with supporting documentation within a further 3 days. Any disputed application for a special costs order will be determined on the papers absent any indication to the contrary.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2019